Arrests: a prudent exception in cases with lesser sentence

The ruling of the apex court in 2014, Arnesh Kumar vs. State of Bihar AIR 2014 SC 2756, was prompted by the Court’s awareness of the rampant misuse of Section 498A (which deals with cruelty against women) of the Indian Penal Code, particularly in relation to dowry demands. Consequently, the Court had formulated guidelines to prevent unnecessary arrests and to ensure that arrests were made only when absolutely necessary.

A division bench comprising Justices S Ravindra Bhat and Aravind Kumar has recently issued significant orders regarding the Arnesh Kumar case guidelines. The High Courts are now directed to frame these guidelines in the form of notifications, to be adhered to by Sessions Courts and other criminal courts.

Furthermore, the Directors General of Police in all States have been given clear instructions to ensure strict compliance with these guidelines. The concerned authorities must issue the necessary directives, guidelines, and departmental circulars within a span of eight weeks, as stipulated by the Court.

Additionally, the bench has mandated that an affidavit of compliance be filed before the Supreme Court within ten weeks, indicating that the authorities have adhered to the provided directions.

These directions were issued while granting bail to a man accused in a matrimonial dispute, facing charges of dowry harassment, cruelty, and criminal intimidation. The bench observed that the High Court had simply rejected the accused’s anticipatory bail plea without proper consideration and instead ordered him to surrender before the trial court and seek regular bail.

Following the accused’s appeal before the Supreme Court, the apex court reaffirmed the principle that bail should typically be granted, upholding an individual’s right to personal liberty under Article 21 of the Constitution.

The bench acknowledged that in grave cases, the Court may exercise its discretion in granting or denying bail based on factors such as the seriousness of the alleged offense, the accused’s potential to influence the investigation, the likelihood of absconding, and other relevant considerations.

However, in the present matter, the Court found that the accused had been cooperative during the investigation, and there were no exceptional features or circumstances that would disqualify the accused from obtaining pre-arrest bail.

The Supreme Court further expressed the view that since the charge sheet had been filed, the High Court should have automatically granted bail in this case.

The Supreme Court found that despite the appellant’s plea, the High Court did not consider the matter thoughtfully and, rather mechanically, rejected the bail application. To compound the matter, the High Court ordered the appellant to surrender and seek regular bail before the Trial Court, which added insult to injury. The apex court deemed this approach by the High Court to be a grave error, as it displayed a lack of seriousness in handling the case. Consequently, the bench took the decision to overturn the High Court’s order and granted the bail plea, acknowledging the need for a fair and just treatment of the matter.

Arnesh Kumar vs. State of Bihar AIR 2014 SC 2756

Introduction

Section 498-A was introduced into the Indian Penal Code in 1989 through the Criminal Law (Second Amendment) Act with the primary intention of safeguarding wives from dowry-related abuse and holding perpetrators accountable.

However, the Court has observed a significant increase in marital conflicts in recent years. Section 498-A’s non-bailable and cognizable nature has led to its misuse by disgruntled women. According to the “Crime in India 2012 statistics” issued by the National Crime Records Bureau, Ministry of Home Affairs, a staggering 1,97,762 individuals were arrested in India in 2012 under Section 498-A of the IPC. The report further revealed that 3,72,706 cases were pending trial, with an estimated 3,17,000 of them anticipated to result in acquittals.

Analysing the data from the aforementioned report, it becomes evident that a majority of those arrested would eventually be released following the trial. However, this protracted legal process and the initial arrest inflict permanent damage to the reputation of the accused and their family, leaving irreparable scars.

The landmark case of Arnesh Kumar v. State of Bihar (2014) holds paramount significance in criminal law as it established guidelines for making arrests. In this case, a wife had accused her husband of dowry demands, leading to legal proceedings.

Facts of the case

1. Arnesh Kumar, the petitioner, is married to Sweta Kiran, respondent number 2, and their wedding ceremony took place on July 1, 2007.
2. The wife alleges that her mother-in-law and father-in-law demanded a dowry of Rs. 8 lakhs, a Maruti car, an air-conditioner, a television set, and other items. When she raised this issue with the appellant, he sided with his mother and even threatened to marry another woman.
3. Furthermore, it is claimed that she was forced to leave the matrimonial house as the dowry demand remained unfulfilled.
4. Disputing these accusations, the appellant sought anticipatory bail, but both the learned Sessions Judge and the High Court rejected his application.
5. Having exhausted all avenues for anticipatory bail, he approached the Supreme Court with this Special Leave petition in a bid to seek relief.

Issues raised

The case brought forth several pivotal issues for consideration:

1. Eligibility for Anticipatory Bail: The primary question was whether the appellant is entitled to obtain anticipatory bail in light of the charges against him.
2. Obligation of Police Officers in Arrest: The court addressed whether it is obligatory for a police officer to arrest a person based on a complaint if the individual is suspected of committing a cognizable offense. Additionally, the court explored the standards that the investigating agency should adhere to while effecting such arrests.
3. Misuse of Section 498-A: Another significant matter addressed was the recourse available in cases where a woman abuses Section 498-A of the Indian Penal Code, 1860, which pertains to cruelty against women, particularly in relation to dowry demands.

Provisions of criminal law involved

The matter addresses the following provisions:

1. Section 498-A of the Indian Penal Code, 1860: Pertaining to cruelty against women, specifically in connection with dowry demands.
2. Section 4 of the Dowry Prohibition Act, 1961: Relating to the prohibition of dowry and the penalties for giving or taking dowry.
3. Sections 41, 41A, 57, 167, 438 of the Code of Criminal Procedure, 1973: Addressing various aspects of arrest, investigation, and bail procedures.
4. Article 22(2) of the Constitution of India, 1950: Encompassing the rights of an arrested person, particularly the right to consult and be defended by a legal practitioner during interrogation.

Judgement

On July 2, 2014, a pivotal decision was rendered by a two-judge panel of the Supreme Court in the case of Arnesh Kumar vs. State of Bihar & Anr. The bench, reaching a majority consensus, granted bail to the appellant with specific conditions.

In response to Arnesh Kumar’s Special Leave Petition contesting his detention and the arrest of his family under section 498-A of the Indian Penal Code, 1860, the Supreme Court issued essential guidelines. The bench took note of the fact that the non-bailable and cognizable nature of section 498-A had turned it into a potent tool for disgruntled wives, leading to the unwarranted detention of innocent individuals without substantial evidence. The Court observed that some women were misusing the anti-dowry legislation (section 498-A) to subject their husbands and in-laws to harassment.

In light of this, the Apex Court prohibited the police from making arrests solely based on a complaint. Instead, the Court directed the police to adhere to section 41 of the Code of Criminal Procedure, 1973, which outlines nine key points that must be considered to determine the necessity of an arrest. Furthermore, the Court emphasized that a magistrate should decide whether an arrested person needs to be held in further detention, providing an added layer of scrutiny to the arrest process.

After discussing the provisions aimed at safeguarding against arbitrary arrests, the court proceeded to establish comprehensive guidelines to be followed during arrests. The court directed as follows:

1. State Governments should instruct their police officers not to resort to automatic arrests when a case under Section 498-A of the IPC is registered. Instead, they must diligently assess the necessity for an arrest based on the parameters laid down under Section 41 of the Cr.PC.
2. Police officers should be provided with a checklist containing specified sub-clauses under Section 41(1)(b)(ii). When arresting an accused, the police officer must fill out the checklist and provide the reasons and evidence that justify the arrest while producing the accused before the Magistrate for further detention.
3. The Magistrate, before authorizing the detention of the accused, should thoroughly examine the report furnished by the police officer as mentioned above. Only after recording satisfaction should the Magistrate grant authorization for detention.
4. The decision not to arrest an accused should be communicated to the Magistrate within two weeks from the date of case registration, with a copy provided to the Magistrate. The Superintendent of Police of the district may extend this period for valid reasons, to be documented in writing.
5. Notice of appearance under Section 41A of Cr.PC should be served on the accused within two weeks from the date of case registration. This period may be extended by the Superintendent of Police of the District, with the reasons recorded in writing.
6. Failure to comply with the above directions will not only render the concerned police officers liable for departmental action but may also subject them to punishment for contempt of court, which will be instituted before the High Court with territorial jurisdiction.
7. Any judicial Magistrate who authorizes detention without recording reasons as specified above will be subject to departmental action initiated by the appropriate High Court.
8. The aforementioned directions are not limited to cases under Section 498-A of the IPC or Section 4 of the Dowry Prohibition Act but are applicable to cases where the offense is punishable with imprisonment for a term that may be less than seven years or extend up to seven years, with or without a fine.

The entire judgement may be read here.

In Re v. Chandan Kumar, Contempt Application (Criminal) No. – 5 of 2022, decided on August 18, 2022

In this case , Chandan Kumar, who is the Incharge of Police Station in Kanth, District Shahjahanpur, was served a notice under Section 41-A Cr.P.C. but falsely claimed that the accused declined to accept it. He tried to give a communal angle to the situation, mentioning potential communal riots as the accused belonged to a Muslim community. However, the court found no evidence of such apprehension as the FIR was not even lodged at the police station without higher authorities’ intervention.

Chandan Kumar’s actions were an attempt to bypass the Supreme Court’s guidelines laid down in the Arnesh Kumar case. The bench, consisting of Justice Suneet Kumar and Justice Syed Waiz Mian, refused to be lenient in sentencing, as it would not serve the public interest and administration of justice. To uphold public respect and confidence in the judicial process, the court ordered Chandan Kumar to undergo simple imprisonment for 14 days and imposed a fine of Rs. 1000 for committing contempt.

The entire judgement may be read here.

Mahendra Pratap Singh v. State Of U.P. Thru. Secy. Home U.P. Civil Secrett. Lko. And Others , criminal miscellaneous writ petition no 1006 of 2023

The Allahabad High Court directed the Uttar Pradesh Police to comply with Section 41A, CrPC, and follow the Supreme Court’s guidelines in the Arnesh Kumar case. The plea sought to quash the FIR, but the court denied the relief and instructed the police to adhere to the mentioned mandates. The FIR was lodged against individuals accused of burning copies of Ramcharitmanas in support of a political leader. The petitioner’s counsel emphasized that the offences mentioned carry up to 7 years of imprisonment, making arrest an exception according to the Supreme Court’s ruling. Instead, the accused should be served a notice for appearance under Section 41A, CrPC.

The entire judgement may be read here.

 Gopika Jayan & Anr vs Faisal MA contempt case no 427 of 2022

The Kerala high court has sought an explanation from a judicial officer for remanding two accused person in a case where arrests were made in violation of Arnesh Kumar guidelines, directed to adhere to the guidelines in future.

The entire judgement may be read here.

Kuldeep vs state of Karnataka writ petition no 24832 of 2022

In this case the Karnataka high court awarded 3 lakh rupees as compensation to a young advocate who was found to be illegally arrested and assaulted by the police. It was opined by the court that because police has been vested with the power to arrest they can not arbitrarily use that power and arrest anyone.

The entire judgement may be read here.

Conclusion

The Supreme Court has made it unequivocally clear that arrests cannot be made in a routine manner. Such arrests violate the fundamental rights of citizens and go against the very essence of our constitution. In addition to various Supreme Court judgments, the Code of Criminal Procedure (Amendment) Act, 2008, has introduced adequate safeguards to ensure lawful and cautious exercise of the power to arrest (e.g., Insertion of Section 41A). However, the lacking aspect lies in the stringent implementation. It is crucial to educate the police about the boundaries within which they can exercise their power to arrest, and any arbitrary use of this power should be met with severe consequences.

[i] https://legalvidhiya.com/arnesh-kumar-vs-state-of-bihar-air-2014-sc-2756/#:~:text=Arnesh%20Kumar%20V.%20State%20of

https://www.studyiq.com/articles/punishment-for-voilating-arnesh-kumar-guidelines-of-arrest/

https://lawbeat.in/amp/news-updates/allahabad-hc-orders-police-follow-mandate-section-41a-crpc-arnesh-kumar-guidelines-ramcharitmanas-burning-case

https://m.timesofindia.com/india/sc-arrest-shouldnt-be-done-as-routine/amp_articleshow/85472657.cms