CRITICAL ANALYSIS ON GUIDELINES FOR ARREST – ARNESH KUMAR V STATE OF BIHAR

Prerna Chandel, Student, Department of Legal Studies, LCIT College of Commerce and Science, Bilaspur, Chhattisgarh

CASE NAME – Arnesh Kumar v State Of Bihar [2014] 8 SCC 273

CASE NUMBER- Criminal Appeal No. 1277/ 2014

CITATIONS- AIR 2014 SC 2756, 2014 AIR SCW 3930, (3) SCC (CRI) 449

BENCH- Pinaki Chandra Ghose, Chandramauli K.R. Prasad

DATE OF JUDGMENT- 2nd July, 2014.

FACTS OF THE CASE

The petitioner, Arnesh Kumar was the husband of the Sweta Kiran, respondent No. 2. They got married on 1st July 2007. The wife alleges that her mother-in-law and father-in-law demanded dowry of Rupees eight lacs, a maruti car, an air-conditioner, television set and other items. When the dowry demand was brought to the notice of the appellant by the wife, the appellant supported his parents and even threatened her to marry another woman. The wife further alleged that she was driven out of the matrimonial home due to the non fulfillment of the dowry demand.

The appellant denied the allegations made and applied for an anticipatory bail before the Session Judge, which was dismissed. Thereafter, the appellant applied for the anticipatory bail before the High Court which was also rejected. The appellant approached the Supreme Court apprehending the arrest under section 498-A of Indian Penal Code and section 4 of the Dowry Prohibition Act.

ISSUES RAISED

  • Whether the appellant was eligible to apply for the anticipatory bail for the offence under Section 498-A of Indian Penal Code 1860.
  • Whether a police officer arrest is empowered to make arrest someone based on a complaint if that person is suspected of a serious offence. What guidelines should be followed by the investigating agency during the arrest?
  • Whether any remedy is available if there is a misuse of Section 498-A of the Indian Penal Code, 1860, by a woman which deals with marital cruelty.

OPINION OF THE COURT

The court held that there has been rapid increase in cases of Section 498A. Section 498A was enacted to protect the woman from the atrocities by the in-laws. This section is used as a weapon to harass the husband. The relatives are liberally included in the case of dowry harassment. 

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. The section has become a tool for oppression and harassment by the police to make arrest. Arrest humiliates the individual, tarnishing the image of the family in the society and curtails freedom of an individual.

The arrested person has the right under Article 22(2) of the Constitution and section 156 of the Cr.PC. to be presented before the Magistrate before 24 hours, when the arrest is made without a warrant by the police. When the Magistrate is furnished with the information about the facts, reasons and conclusion about the arrest by the police and satisfied that the provisions of section 41 are followed, the Magistrate shall authorize the detention of the accused in writing.  The failure to check the procedure of the arrest by the Magistrates greatly enhances the atrocity.

GUIDELINES ISSUED BY THE SUPREME COURT

From the precedents of the facts of the present case, the Supreme court laid down the directions  to ensure the exercise of power given to the police officers at the time of making arrest and the consideration made by the Magistrate authorizing the detention so that the detention is not made casual or mechanical. Following are the guidelines issued by the Court in the judgment: 

(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 above flowing from Section 41, Cr.PC; 

(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 authorizing 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 authorize 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.PC, 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)Authorizing detention without recording reasons as aforesaid by the judicial Magistrate concerned shall be liable for departmental action by the appropriate High Court.

The Supreme court also emphasized that the guidelines should be followed in the cases punishable with the imprisonment for the term of less than seven years or more than seven years punishable with fine or not, and is not limited to the cases under Section 498-A of the 1.P.C. or Section 4 of the Dowry Prohibition Act,

The copy of the judgment was directed to be forwarded to the Director General of Police of all the state Governments, Union Territories and Registrar Generals of all High Courts for transmission and ensuring the compliance of the rules.

JUDGMENT

The provisional bail was granted to the appellant on certain conditions which stays absolute on 30th October 2013. Hence, the appeal for the bail was allowed by the Hon’ble Court.

ANALYSIS

It makes it clear that in a non-bailable offence if a person has reason to believe that he may be arrested, he is free to apply to the High Court or the Court of Session praying that in the event of such arrest, he shall be released on bail. The belief that the applicant may be arrested must be founded on reasonable grounds. While considering such a request, the Court has to take into consideration the nature and the gravity of the accusation, antecedents, possibility of the applicant to flee from justice etc. The procedure followed by the police at the time of making arrest should be fair and procedural by the law. This creates an urgent need of formulating the provisions to initiate legal actions against women who have been making false accusation of cruelty and dowry demand to reduce the false complaints. The object of the provision of section 498A is prevention of the dowry menace. But many instances have come to light where the complaints are not bona fide and have been filed with oblique motive. In such cases acquittal of the accused does not in all cases wipe out the ignominy suffered during and prior to trial.  This has set a negative precedent for the number of genuine cases of section 498A which could not be proved by the victim of harassment. It is used as a precedent to direct the opinion of the court when there is a lack of evidence with the aggrieved party. Also, this could be used as a tool against the police while investigation of the case, when there is actual a need for investigation. The guidelines on one hand, imposes duty on police officers all over the country but it also restricts the stringent measures taken by the police, which in some cases, fits better to reach the conclusion. 

CONCLUSION

The judgment of Arnesh Kumar v State of Bihar serves the purpose of safeguarding the rights of an individual from wrongful arrest in the cases of dowry demand and also providing the guidelines which should be followed while making arrest. It further directs the Magistrate to check that the guidelines are followed. Police officers should maintain a balance between individual liberty and societal order while exercising power of arrest under sections 41, 41 A and 57 of Cr.P.C. Words like reasonable and credible suspicion or investigation prior to an arrest is very subjective in nature and can, in reality, provide the police officer vast discretion.  The law makers have realized the value of rights of women and enacted several legislatures to safeguard the rights of the women. The legislature enacted the provision of Section 498A (section 85 of BNS, 2023) to strike out the dowry menace from society. But it is observed that in several cases, this said provision is being misused. There was no recourse available to the person who was arrested under the false case of cruelty by dowry demand. Due to the rampant misuse of Sections 498A IPC and Section 4 of D.P. Act 1961, it would be prudent and wise for a Police Officer that no arrest is made without reasonable satisfaction reached after some investigation as to the genuineness of allegations.Provisions contained in Chapter XII of Criminal Procedure Code deals with information to the police and their powers to investigate. This Chapter sets out the procedure to be followed during investigation. Focus should be to minimize the misuse of section 4 of Dowry Prohibition Act by the hands of the female and protect the rights of women as well the accused individual. Strict adherence to the guidelines laid down in this judgment assures the procedures are followed by law and prevent arbitrary arrest by the police.

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