IN THE SUPREME COURT
OF INDIA
CRIMINAL APPELLATE
JURISDICTION
CRIMINAL APPEAL NO.
1277 OF 2014
(@SPECIAL LEAVE
PETITION (CRL.) No.9127 of 2013)
ARNESH KUMAR .....
APPELLANT
VERSUS
STATE OF BIHAR &
ANR. .... RESPONDENTS
J
U D G M E N T
02/07/2014
Chandramauli Kr.
Prasad
The petitioner
apprehends his arrest in a case under Section 498-A of the Indian
Penal Code, 1860 (hereinafter called as IPC) and Section 4 of the
Dowry Prohibition Act, 1961. The maximum sentence provided under
Section 498-A IPC 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.
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.
Leave granted.
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 non-
fulfilment of the demand of dowry.
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.
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 IPC
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 IPC, 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, IPC 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.
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 Cr.PC. 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.
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 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 ‘Cr.PC),
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), Cr.PC 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 –
to prevent such person
from committing any further offence; or
for proper
investigation of the offence; or
to prevent such person
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 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
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.
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
Cr.PC.
An accused arrested
without warrant by the police has the constitutional right under
Article 22(2) of the Constitution of India and Section 57, Cr.PC 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
Cr.PC. 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, Cr.PC, 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 Cr.PC 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 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.
Another provision i.e.
Section 41A Cr.PC 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:
“41A. 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.�
Aforesaid provision
makes it clear that in all cases where the arrest of a person is not
required under Section 41(1), Cr.PC, 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 Cr.PC
has to be complied and shall be subject to the same scrutiny by the
Magistrate as aforesaid.
We are of the opinion
that if the provisions of Section 41, Cr.PC 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 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 Cr.PC for
effecting arrest be discouraged and discontinued.
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:
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;
All police officers be
provided with a check list containing specified sub- clauses under
Section 41(1)(b)(ii);
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;
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;
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;
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;
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.
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.
We direct that a copy
of this judgment be forwarded to the Chief Secretaries as 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.
By order dated 31st of
October, 2013, this Court had granted provisional bail to the
appellant on certain conditions. We make this order absolute.
In the result, we allow
this appeal, making our aforesaid order dated 31st October, 2013
absolute; with the directions aforesaid.
-----------------------------------------
(CHANDRAMAULI KR.
PRASAD)
---------------------------------
(PINAKI CHANDRA GHOSE)
NEW DELHI,
July 2, 2014.
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