CHANDRAMAULI KR. PRASAD, J.— The petitioner apprehends his arrest in a case under
Section 498-A of the 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.
2. The petitioner happens to be the husband of Respondent 2, Sweta Kiran. The marriage
between them was solemnized on 1-7-2007. His attempt to secure anticipatory bail has failed
[Arnesh Kumar v. State of Bihar, Criminal Misc. No. 30041 of 2013, order dated 8-10-2013
(Pat)] and hence he has knocked the door of this Court by way of this special leave petition.
Leave granted.
3. In sum and substance, allegation levelled by the wife against the appellant is that demand of
rupees eight lakhs, a Maruti car, an air conditioner, television set, etc. was made by her motherin-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.
4. There is a phenomenal increase in matrimonial disputes in recent years. The institution of
marriage is greatly revered in this country. Section 498-A 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 IPC 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, bedridden grandfathers and grandmothers of
the husbands, their sisters living abroad for decades are arrested. “Crime in India 2012
Statistics” published by the National Crime Records Bureau, Ministry of Home Affairs shows
arrest of 1,97,762 persons all over India during the year 2012 for the offence under Section 498-
A 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 the Penal Code. It accounts for 4.5% of total crimes committed under
different sections of the Penal Code, more than any other crimes excepting theft and hurt. The
rate of charge-sheeting in cases under Section 498-A 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.
5. Arrest brings humiliation, curtails freedom and casts scars forever. Lawmakers know it so
also the police. There is a battle between the lawmakers and the police and it seems that the
police has not learnt its lesson: the lesson implicit and embodied in CrPC. 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
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exercising the drastic power of arrest has been emphasised time and again by the 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.
6. Law Commissions, Police Commissions and this Court in a large number of judgments
emphasised 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 nonbailable 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 the 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, 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 “CrPC”), 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.
7. 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) CrPC
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)***
(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)***
(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
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(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.”
7.1. From a plain reading of the aforesaid provision, it is evident that a person accused of an
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
his satisfaction that such person had committed the offence punishable as aforesaid. A 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.
7.2. The 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. The law further requires the police officers to record the reasons in writing for not
making the arrest.
7.3. In pith and core, the police officer 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 CrPC.
8. An accused arrested without warrant by the police has the constitutional right under Article
22(2) of the Constitution of India and Section 57 CrPC to be produced before the Magistrate
without unnecessary delay and in no circumstances beyond 24 hours excluding the time
necessary for the journey:
8.1. 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 CrPC. 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
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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.
8.2. Before a Magistrate authorises detention under Section 167 CrPC, 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 are 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 the
condition precedent for arrest under Section 41 CrPC has been satisfied and it is only thereafter
that he will authorise the detention of an accused.
8.3. The Magistrate before authorising detention will record his own satisfaction, may be in
brief but the said satisfaction must reflect from his 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 his satisfaction in writing that the
Magistrate will authorise the detention of the accused.
8.4. 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.
9. Another provision i.e. Section 41-A CrPC aimed to avoid unnecessary arrest or threat of
arrest looming large on the accused requires to be vitalised. Section 41-A as inserted by Section
6 of the Code of Criminal Procedure (Amendment) Act, 2008 (5 of 2009), which is relevant in
the context reads as follows:
“41-A. 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.
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(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.”
The aforesaid provision makes it clear that in all cases where the arrest of a person is not
required under Section 41(1) CrPC, 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 CrPC has to be complied and shall be subject to the same scrutiny
by the Magistrate as aforesaid.
10. We are of the opinion that if the provisions of Section 41 CrPC 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 CrPC for
effecting arrest be discouraged and discontinued.
11. Our endeavour in this judgment is to ensure that police officers do not arrest the accused
unnecessarily and Magistrate do not authorise detention casually and mechanically. In order to
ensure what we have observed above, we give the following directions:
11.1. All the State Governments to instruct its police officers not to automatically arrest when
a case under Section 498-A IPC is registered but to satisfy themselves about the necessity for
arrest under the parameters laid down above flowing from Section 41 CrPC;
11.2. All police officers be provided with a check list containing specified sub-clauses under
Section 41(1)(b)(ii);
11.3. The police officer shall forward the check list duly filled and furnish the reasons and
materials which necessitated the arrest, while forwarding/producing the accused before the
Magistrate for further detention;
11.4. 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;
11.5. 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;
11.6. Notice of appearance in terms of Section 41-A CrPC 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;
11.7. 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 the High Court having territorial jurisdiction.
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11.8. Authorising detention without recording reasons as aforesaid by the Judicial Magistrate
concerned shall be liable for departmental action by the appropriate High Court.
12. We hasten to add that the directions aforesaid shall not only apply to the cases under Section
498-A IPC 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.
13. 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.
14. By order dated 31-10-2013 [Arnesh Kumar v. State of Bihar, (2014) 8 SCC 469], this Court
had granted provisional bail to the appellant on certain conditions. We make this order absolute.
15. In the result, we allow this appeal, making our aforesaid order dated 31-10-2013 [Arnesh
Kumar v. State of Bihar, (2014) 8 SCC 469] absolute; with the directions aforesaid.
