ARNESH
KUMAR Vs. STATE OF BIHAR
In the above
noted matter, two judge bench of hon’ble Supreme Court of India comprising of
Justice Chandramauli Kr. Prasad and Justice Pinaki Chandra Ghose recorded that
being Section 498-A of Indian Penal
Code is a cognizable and non-bailable offence, it has become a dubious place of
pride amongst the provisions that are used as weapons to harass husband and his family rather than
shield to protect themselves by disgruntled wives and hence no arrest
should be made in routine, casual and cavalier manner instead said power should
be used where the circumstances exist to justify the reasons thereof.
After going
through the parameters laid down in section 41 of Code of Criminal Procedure,
hon’ble Supreme Court held 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, but in order to
arrest the accused, Police officer 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.
The hon’ble
court further observed that an accused arrested without warrant by the police
has the constitutional right under Article 22(2) of the Constitution of India
and Section 57 of the 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 of Code of
Criminal Procedure. Before a Magistrate authorizes detention under said section,
he has to be 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 order to
ensure no un-necessary arrests, hon’ble Supreme Court has given following
directions:
- 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 41of Code of Criminal Procedure.
- 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 authorize 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.
These directions
by the hon’ble Supreme Court shall not only apply to the cases under Section
498-A of the I.P.C. or Section 4 of the Dowry Prohibition Act, 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.
Details of this judgement can be read in following link:
