Equivalent Citation: 2014(3)AC R2670(SC ), 2014vii AD (S.C .) 697, AIR2014SC 2756, 2014 (86) AC C 568, 2014 (2) ALT (C rl.) 457 (SC ),
2014(3)BomC R(C ri)362, III(2014)C C R144(SC ), (SC Suppl)2014(4)C HN73, 2014C riLJ3707, 2014(3)C rimes206(SC ), 2014(3)C rimes40(SC ),
210(2014)DLT599(SC ), II(2014)DMC 546SC , 2014GLH(2)547, (2014)2GLR1848, 2014(3)GLT(SC )102, ILR 2014 5507, ILR2014(3)Kerala165,
2014(3)J.L.J.R.313, 2014(3)JC C 1529, JT2014(7)SC 527, 2014(4) KarLJ 177 (SC ), 2014 (3) KC C R 1977 (SC ), 2014 (3) KHC 69 , 2014(3)KLJ330,
2014(3)KLT143(SC ), 2015-1-LW(C rl)318, (2014) 3 MLJ(C rl) 353 (SC ), 2014(4)MPHT81(SC ), 2014(IV)MPJR(SC )55, 2014(II)OLR562,
2014(II)OLR(SC )562, 2014(3)PLJR314, 2014(3)RC R(C riminal)527, 2014(3)RLW2171(SC ), 2014(8)SC ALE250, (2014)8SC C 273, 2014 (6) SC J
219, 2014 (3) WLN 28 (SC )
IN THE SUPREME COURT OF INDIA
Criminal Appeal No. 1277 of 2014 (Arising out of Special Leave Petition (Crl.) No.
9127 of 2013)
Decided On: 02.07.2014
Appellants: Arnesh Kumar
Vs.
Respondent: State of Bihar*
Hon’ble Judges/Coram:
C.K. Prasad and Pinaki Chandra Ghose, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: Rakesh Kumar and Kaushal Yadav, Advs.
For Respondents/Defendant: Rudreshwar Singh, Samir Ali Khan, Aparna Jha, Braj K.
Mishra and Abhishek Yadav, Advs.
Case Note:
Code of Criminal Procedure, 1973 (Central Act 2 of 1974) – Section 41– Power of police to arrest without warrant–Police Officer has to record reasons in writing which led him to conclude that the accused is liable to be arrested without warrant–Directions issued to ensure that Police Officer
do not arrest the accused unnecessarily and Magistrate do not authorize detention of citizen, casually and mechanically.Petitioner, apprehending arrest in a case under Section 498A of the Penal Code and Section 4 of the Dowry Prohibition Act, 1961, moved for anticipatory bail, which was rejected. He approached the Supreme Court seeking anticipatory bail. The court expressed dismay at the casual manner in which husband and his relatives are arrayed as accused in an indictment under Section 498A and Section 4 of the Dowry Prohibition Act, 1961. Apex Court pointed out that the casual manner in which accused in such cases are arrested and remanded to judicial custody. Emphasizing that the Police and the Magistrates should be more circumspect in arresting the accused without warrant and in committing them to judicial custody, Apex Court issued a series of directions and;Held:Our endeavour in this judgment is to ensure that police officers do not arrest accused unnecessarily and Magistrate do not authorise detention casually and mechanically. In order to ensure what we have observed above, we give the following direction:(1) All the State Governments to instruct its police officers not to automatically arrest when a case under Section 498 A of the IPC is registered but to satisfy themselves about the necessity for arrest under the parameters laid down 09-04-2019 (Page 1 of 8) www.manupatra.com Swaroop and Company above flowing from Section 41, Cr.P.C.;(2) All police officers be provided with a check list containing specified sub-clauses under Section 41(1)(b) (ii);(3) The police officer shall forward the check list duly filed and furnish the reasons and materials which necessitated the arrest, while forwarding/producing the accused before the Magistrate for Further detention;(4) The Magistrate while authorising detention of the accused shall peruse the report furnished by the police officer in terms aforesaid and only after recording its satisfaction, the Magistrate will authorise detention;(5) The decision not to arrest an accused, be forwarded to the Magistrate within two weeks from the date of the institution of the case with a copy to the Magistrate which may be extended by the Superintendent of Police of the District for the reasons to be recorded in writing;(6) Notice of appearance in terms of Section 41A of Cr.P.C. be served on the accused within two weeks from the date of institution of the case, which may be extended by the Superintendent of Police of the District for the reasons to be recorded in writing;(7) Failure to comply with the directions aforesaid shall apart from rendering the police officers concerned liable for departmental action, they shall also be liable to be punished for contempt of court to be instituted before High Court having territorial jurisdiction;(8) Authorising detention without recording reasons as aforesaid by the Judicial Magistrate concerned shall be liable for departmental action by the appropriate High Court.We hasten to add that the directions aforesaid shall not only apply to the cases under Section 498 A of the I.P.C. or Section 4 of the Dowry Prohibition Act, the case in hand, but also such cases where offence is punishable with imprisonment for a term which may be less than seven years or which may extend to seven years; whether with or without fine.
JUDGMENT
C.K. Prasad, J.
1. The Petitioner apprehends his arrest in a case Under Section 498-A of the Indian Penal Code, 1860 (hereinafter called as Indian Penal Code) and Section 4 of the Dowry Prohibition Act, 1961. The maximum sentence provided Under Section 498-A Indian Penal Code is imprisonment for a term which may extend to three years and fine whereas the maximum sentence provided Under Section 4 of the Dowry Prohibition Act is two years and with fine.
2 . Petitioner happens to be the husband of Respondent No. 2 Sweta Kiran. The marriage between them was solemnized on 1st July, 2007. His attempt to secure anticipatory bail has failed and hence he has knocked the door of this Court by way of this Special Leave Petition.
3. Leave granted.
4. In sum and substance, allegation levelled by the wife against the Appellant is that demand of Rupees eight lacs, a maruti car, an air-conditioner, television set etc. was made by her mother-in-law and father-in-law and when this fact was brought to the Appellant’s notice, he supported his mother and threatened to marry another woman. It has been alleged that she was driven out of the matrimonial home due to nonfulfilment of the demand of dowry. 09-04-2019 (Page 2 of 8) www.manupatra.com Swaroop and Company
5 . Denying these allegations, the Appellant preferred an application for anticipatory
bail which was earlier rejected by the learned Sessions Judge and thereafter by the
High Court.
6 . There is phenomenal increase in matrimonial disputes in recent years. The
institution of marriage is greatly revered in this country. Section 498-A of the Indian
Penal Code was introduced with avowed object to combat the menace of harassment
to a woman at the hands of her husband and his relatives. The fact that Section 498-
A is a cognizable and non-bailable offence has lent it a dubious place of pride
amongst the provisions that are used as weapons rather than shield by disgruntled
wives. The simplest way to harass is to get the husband and his relatives arrested
under this provision. In a quite number of cases, bed-ridden grand-fathers and
grand-mothers of the husbands, their sisters living abroad for decades are arrested.
“Crime in India 2012 Statistics” published by National Crime Records Bureau, Ministry
of Home Affairs shows arrest of 1,97,762 persons all over India during the year 2012
for offence Under Section 498-A of the Indian Penal Code, 9.4% more than the year
2011. Nearly a quarter of those arrested under this provision in 2012 were women
i.e. 47,951 which depicts that mothers and sisters of the husbands were liberally
included in their arrest net. Its share is 6% out of the total persons arrested under
the crimes committed under Indian Penal Code. It accounts for 4.5% of total crimes
committed under different sections of penal code, more than any other crimes
excepting theft and hurt. The rate of charge-sheeting in cases Under Section 498A,
Indian Penal Code is as high as 93.6%, while the conviction rate is only 15%, which
is lowest across all heads. As many as 3,72,706 cases are pending trial of which on
current estimate, nearly 3,17,000 are likely to result in acquittal.
7 . Arrest brings humiliation, curtails freedom and cast scars forever. Law makers
know it so also the police. There is a battle between the law makers and the police
and it seems that police has not learnt its lesson; the lesson implicit and embodied in
the Code of Criminal Procedure.
It has not come out of its colonial image despite six decades of independence, it is
largely considered as a tool of harassment, oppression and surely not considered a
friend of public. The need for caution in exercising the drastic power of arrest has
been emphasized time and again by Courts but has not yielded desired result. Power
to arrest greatly contributes to its arrogance so also the failure of the Magistracy to
check it. Not only this, the power of arrest is one of the lucrative sources of police
corruption. The attitude to arrest first and then proceed with the rest is despicable. It
has become a handy tool to the police officers who lack sensitivity or act with oblique
motive.
8 . Law Commissions, Police Commissions and this Court in a large number of
judgments emphasized the need to maintain a balance between individual liberty and
societal order while exercising the power of arrest. Police officers make arrest as they
believe that they possess the power to do so. As the arrest curtails freedom, brings
humiliation and casts scars forever, we feel differently. We believe that no arrest
should be made only because the offence is non-bailable and cognizable and
therefore, lawful for the police officers to do so. The existence of the power to arrest
is one thing, the justification for the exercise of it is quite another. Apart from power
to arrest, the police officers must be able to justify the reasons thereof. No arrest can
be made in a routine manner on a mere allegation of commission of an offence made
against a person. It would be prudent and wise for a police officer that no arrest is
made without a reasonable satisfaction reached after some investigation as to the
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genuineness of the allegation. Despite this legal position, the Legislature did not find
any improvement. Numbers of arrest have not decreased. Ultimately, the Parliament
had to intervene and on the recommendation of the 177th Report of the Law
Commission submitted in the year 2001, Section 41 of the Code of Criminal
Procedure (for short ‘Code of Criminal Procedure), in the present form came to be
enacted. It is interesting to note that such a recommendation was made by the Law
Commission in its 152nd and 154th Report submitted as back in the year 1994. The
value of the proportionality permeates the amendment relating to arrest. As the
offence with which we are concerned in the present appeal, provides for a maximum
punishment of imprisonment which may extend to seven years and fine, Section
41(1)(b), Code of Criminal Procedure which is relevant for the purpose reads as
follows:
41. When police may arrest without warrant.-(1) Any police officer
may without an order from a Magistrate and without a warrant, arrest any
person –
(a) x x x x x x
(b) against whom a reasonable complaint has been made, or
credible information has been received, or a reasonable suspicion
exists that he has committed a cognizable offence punishable with
imprisonment for a term which may be less than seven years or
which may extend to seven years whether with or without fine, if the
following conditions are satisfied, namely:
(i) x x x x x
(ii) the police officer is satisfied that such arrest is necessary
–
(a) to prevent such person from committing any further
offence; or
(b) for proper investigation of the offence; or
(c) to prevent such person from causing the evidence of the
offence to disappear or tampering with such evidence in any
manner; or
(d) to prevent such person from making any inducement,
threat or promise to any person acquainted with the facts of
the case so as to dissuade him from disclosing such facts to
the Court or to the police officer; or
(e) as unless such person is arrested, his presence in the
Court whenever required cannot be ensured, and the police
officer shall record while making such arrest, his reasons in
writing:
Provided that a police officer shall, in all cases where the
arrest of a person is not required under the provisions of
this Sub-section, record the reasons in writing for not
making the arrest.
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x x x x x x
From a plain reading of the aforesaid provision, it is evident that a person accused of
offence punishable with imprisonment for a term which may be less than seven years
or which may extend to seven years with or without fine, cannot be arrested by the
police officer only on its satisfaction that such person had committed the offence
punishable as aforesaid. Police officer before arrest, in such cases has to be further
satisfied that such arrest is necessary to prevent such person from committing any
further offence; or for proper investigation of the case; or to prevent the accused
from causing the evidence of the offence to disappear; or tampering with such
evidence in any manner; or to prevent such person from making any inducement,
threat or promise to a witness so as to dissuade him from disclosing such facts to the
Court or the police officer; or unless such accused person is arrested, his presence in
the court whenever required cannot be ensured. These are the conclusions, which
one may reach based on facts.
Law mandates the police officer to state the facts and record the reasons in writing
which led him to come to a conclusion covered by any of the provisions aforesaid,
while making such arrest. Law further requires the police officers to record the
reasons in writing for not making the arrest.
In pith and core, the police office before arrest must put a question to himself, why
arrest? Is it really required? What purpose it will serve? What object it will achieve? It
is only after these questions are addressed and one or the other conditions as
enumerated above is satisfied, the power of arrest needs to be exercised. In fine,
before arrest first the police officers should have reason to believe on the basis of
information and material that the accused has committed the offence. Apart from this,
the police officer has to be satisfied further that the arrest is necessary for one or the
more purposes envisaged by Sub-clauses (a) to (e) of Clause (1) of Section 41 of
Code of Criminal Procedure.
9 . An accused arrested without warrant by the police has the constitutional right
Under Article 22(2) of the Constitution of India and Section 57, Code of Criminal
Procedure to be produced before the Magistrate without unnecessary delay and in no
circumstances beyond 24 hours excluding the time necessary for the journey. During
the course of investigation of a case, an accused can be kept in detention beyond a
period of 24 hours only when it is authorised by the Magistrate in exercise of power
Under Section 167 Code of Criminal Procedure. The power to authorise detention is a
very solemn function. It affects the liberty and freedom of citizens and needs to be
exercised with great care and caution. Our experience tells us that it is not exercised
with the seriousness it deserves. In many of the cases, detention is authorised in a
routine, casual and cavalier manner. Before a Magistrate authorises detention Under
Section 167, Code of Criminal Procedure, he has to be first satisfied that the arrest
made is legal and in accordance with law and all the constitutional rights of the
person arrested is satisfied. If the arrest effected by the police officer does not satisfy
the requirements of Section 41 of the Code, Magistrate is duty bound not to authorise
his further detention and release the accused. In other words, when an accused is
produced before the Magistrate, the police officer effecting the arrest is required to
furnish to the Magistrate, the facts, reasons and its conclusions for arrest and the
Magistrate in turn is to be satisfied that condition precedent for arrest Under Section
41 Code of Criminal Procedure has been satisfied and it is only thereafter that he will
authorise the detention of an accused. The Magistrate before authorising detention
will record its own satisfaction, may be in brief but the said satisfaction must reflect
from its order. It shall never be based upon the ipse dixit of the police officer, for
example, in case the police officer considers the arrest necessary to prevent such
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person from committing any further offence or for proper investigation of the case or
for preventing an accused from tampering with evidence or making inducement etc.,
the police officer shall furnish to the Magistrate the facts, the reasons and materials
on the basis of which the police officer had reached its conclusion. Those shall be
perused by the Magistrate while authorising the detention and only after recording its
satisfaction in writing that the Magistrate will authorise the detention of the accused.
In fine, when a suspect is arrested and produced before a Magistrate for authorising
detention, the Magistrate has to address the question whether specific reasons have
been recorded for arrest and if so, prima facie those reasons are relevant and
secondly a reasonable conclusion could at all be reached by the police officer that
one or the other conditions stated above are attracted. To this limited extent the
Magistrate will make judicial scrutiny.
10. Another provision i.e. Section 41A Code of Criminal Procedure aimed to avoid
unnecessary arrest or threat of arrest looming large on accused requires to be
vitalised. Section 41A as inserted by Section 6 of the Code of Criminal Procedure
(Amendment) Act, 2008 (Act 5 of 2009), which is relevant in the context reads as
follows:
A. Notice of appearance before police officer.-(1) The police officer shall, in
all cases where the arrest of a person is not required under the provisions of
Sub-section (1) of Section 41, issue a notice directing the person against
whom a reasonable complaint has been made, or credible information has
been received, or a reasonable suspicion exists that he has committed a
cognizable offence, to appear before him or at such other place as may be
specified in the notice.
(2) Where such a notice is issued to any person, it shall be the duty of that
person to comply with the terms of the notice.
(3) Where such person complies and continues to comply with the notice, he
shall not be arrested in respect of the offence referred to in the notice unless,
for reasons to be recorded, the police officer is of the opinion that he ought
to be arrested.
(4) Where such person, at any time, fails to comply with the terms of the
notice or is unwilling to identify himself, the police officer may, subject to
such orders as may have been passed by a competent Court in this behalf,
arrest him for the offence mentioned in the notice.
11. Aforesaid provision makes it clear that in all cases where the arrest of a person is
not required Under Section 41(1), Code of Criminal Procedure, the police officer is
required to issue notice directing the accused to appear before him at a specified
place and time. Law obliges such an accused to appear before the police officer and it
further mandates that if such an accused complies with the terms of notice he shall
not be arrested, unless for reasons to be recorded, the police office is of the opinion
that the arrest is necessary. At this stage also, the condition precedent for arrest as
envisaged Under Section 41 Code of Criminal Procedure has to be complied and shall
be subject to the same scrutiny by the Magistrate as aforesaid.
1 2 . We are of the opinion that if the provisions of Section 41, Code of Criminal
Procedure which authorises the police officer to arrest an accused without an order
from a Magistrate and without a warrant are scrupulously enforced, the wrong
committed by the police officers intentionally or unwittingly would be reversed and
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the number of cases which come to the Court for grant of anticipatory bail will
substantially reduce. We would like to emphasise that the practice of mechanically
reproducing in the case diary all or most of the reasons contained in Section 41 Code
of Criminal Procedure for effecting arrest be discouraged and discontinued.
13. Our endeavour in this judgment is to ensure that police officers do not arrest
accused unnecessarily and Magistrate do not authorise detention casually and
mechanically. In order to ensure what we have observed above, we give the
following direction:
(1) All the State Governments to instruct its police officers not to
automatically arrest when a case Under Section 498-A of the Indian Penal
Code is registered but to satisfy themselves about the necessity for arrest
under the parameters laid down above flowing from Section 41, Code of
Criminal Procedure;
(2) All police officers be provided with a check list containing specified subclauses
Under Section 41(1)(b)(ii);
(3) The police officer shall forward the check list duly filed and furnish the
reasons and materials which necessitated the arrest, while
forwarding/producing the accused before the Magistrate for further
detention;
(4) The Magistrate while authorising detention of the accused shall peruse
the report furnished by the police officer in terms aforesaid and only after
recording its satisfaction, the Magistrate will authorise detention;
(5) The decision not to arrest an accused, be forwarded to the Magistrate
within two weeks from the date of the institution of the case with a copy to
the Magistrate which may be extended by the Superintendent of police of the
district for the reasons to be recorded in writing;
(6) Notice of appearance in terms of Section 41A of Code of Criminal
Procedure be served on the accused within two weeks from the date of
institution of the case, which may be extended by the Superintendent of
Police of the District for the reasons to be recorded in writing;
(7) Failure to comply with the directions aforesaid shall apart from rendering
the police officers concerned liable for departmental action, they shall also
be liable to be punished for contempt of court to be instituted before High
Court having territorial jurisdiction.
(8) Authorising detention without recording reasons as aforesaid by the
judicial Magistrate concerned shall be liable for departmental action by the
appropriate High Court.
14. We hasten to add that the directions aforesaid shall not only apply to the cases
Under Section 498-A of the Indian Penal Code or Section 4 of the Dowry Prohibition
Act, the case in hand, but also such cases where offence is punishable with
imprisonment for a term which may be less than seven years or which may extend to
seven years; whether with or without fine.
15. We direct that a copy of this judgment be forwarded to the Chief Secretaries as
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also the Director Generals of Police of all the State Governments and the Union
Territories and the Registrar General of all the High Courts for onward transmission
and ensuring its compliance.
16. By order dated 31st of October, 2013, this Court had granted provisional bail to
the Appellant on certain conditions. We make this order absolute.
1 7 . In the result, we allow this appeal, making our aforesaid order dated 31st
October, 2013 absolute; with the directions aforesaid.
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