Head Notes:
1.
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 officer 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.
2.
We
are of the opinion that if the provisions of Section 41, Cr.PC which authorizes
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 emphasize 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.
3.
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.
4.
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.
5.
Authorizing
detention without recording reasons as
aforesaid by the judicial Magistrate concerned shall be liable for departmental
action by the appropriate High Court.
REPORTABLE
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:
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 airconditioner, 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.
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 –
(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.
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 authorizes 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 authorize 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 authorize the detention of an
accused. The Magistrate before authorizing 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 authorizing the detention and only after recording its
satisfaction in writing that the Magistrate will authorize the detention of the accused. In fine, when a
suspect is arrested and produced before a Magistrate for authorizing 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 vitalized. 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 officer 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 authorizes 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 emphasize 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 authorize 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 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.
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.
………………………………………………………………J
(CHANDRAMAULI
KR. PRASAD)
………………………………………………………………J
(PINAKI
CHANDRA GHOSE)
NEW DELHI,
July 2, 2014.
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