Arrest in dowry cases should not be an automatic outcome of complaint #indianlaws

Supreme Court in a recent judgement made arrest difficult in the matrimonial disputes to avoid abuse of penal provisions under Section 498A IPC and Dowry Prohibition Act

Petitioner apprehending his arrest in a case under Section 498-A of the Indian Penal Code, 1860 (IPC) and Section 4 of the Dowry Prohibition Act, 1961 upon failing to secure anticipatory bail had filed the present Petition by way of Special Leave Petition.

Wife of the Petitioner had alleged him of supporting dowry demands made by his parents (i.e. in-laws of wife) and his threat to remarry in case of wife failing to meet the demands. She was also driven out of the matrimonial home due to non-fulfilment of dowry demand.

The Court while expressing concern on sharp increase in matrimonial disputes in the recent time observed that Section 498-A was introduced to fight out the instances of harassment caused to woman at her matrimonial house. However, over the period of time, the provision is used more as weapon rather than a shield by annoyed and dissatisfied wives. The provision of section 498A being non-bailable is often now used as mode to harass husband, his relatives by making them arrested and even this being not enough, the bed-ridden grand-fathers and grand-mothers of the husbands, their sisters living abroad for decades are not spared. Court has been giving time and again emphasis on being cautious while exercising the power of arrest however the desired results are far from reach.

Court referred to Section 41 of the Code of Criminal Procedure, which deals with powers of police to arrest. A person accused of offence punishable with imprisonment for a term which may be less than seven years or extending up to seven years with or without fine cannot be arrested by the police officer only on its satisfaction that such person has committed the offence. Police officer has to be satisfied that such arrest is necessary to prevent such person from committing any further offence, or for conducting proper investigation or to prevent the accused from causing obstruction of any sort in conducting investigation.

Section 41A was inserted in Code of Criminal Procedure by the 2008 amendment act which deals with need for Notice of appearance before police officer, according to which 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.

It was held that 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. The Court accordingly passed the following directions:

1. Arrest by Police officers should not be an automatic outcome in a case registered under Section 498-A of the IPC. They need to satisfy themselves about the necessity for arrest as required in Section 41, Cr.PC;
2. All police officers must be given a check list containing specified sub-clauses provided under Section 41(1)(b)(ii) of the Cr.PC.;
3. The above said check list should be duly filed by concerned police officers and must also contain reasons and materials which necessitated the arrest at the time of producing accused before the Magistrate for further detention;
4. Magistrate while authorising detention to peruse the report as furnished and only after recording its satisfaction, will authorize detention;
5. Decision of not making an arrest of the accused, shall 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. Authorising detention without recording reasons as aforesaid by the judicial Magistrate concerned shall be liable for departmental action by the appropriate High Court.

The Court further clarified that the above directions as passed would be applicable to all 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, including those under Section 498-A of the I.P.C. or Section 4 of the Dowry Prohibition Act

[Arnesh Kumar vs. State of Bihar & Anr.]
(SC, 02.07.2014)