Arnesh Kumar v. State of Bihar (2014) 8 SCC 273

About the Author

Safiya Sabu, a Law Student is a participant of the LJRF Munsiff Magistrate Examination Training Programme. (More details at the bottom)

This is a landmark judgment by the Supreme Court of India, which prescribes guidelines against unnecessary arrest.

Facts in Brief

The appellant apprehend arrest under the relevant provisions & approached Sessions Court & High Court for anticipatory bail, which was rejected. Hence, he approached the Apex court by a Special Leave Petition.

Relevant Provisions

498 A IPC:- Husband or relatives of husband subjecting a women to Cruelty is punishable with a term of 3 years & fine.

Cruelty:

Willful conduct, which may drive the women to commit suicide or cause grave injury to life.
Harassment to coerce that women or her relative to meet any unlawful demand for property or any other valuable things.

Section 4 of Dowry Prohibition Act:- Penalty for demanding dowry: If a person demands dowry from parents or guardian of a bride, punishable with imprisonment not less than 6 months which may extend to 2 years with fine of Rs. 10,000.

Special Leave Petition: Article 136 of Indian Constitution- Special Leave to appeal to the Supreme Court.

Judgment

Leave was granted; the Court observed that section 498A of the Indian Penal Code & many provisions of dowry laws are often misused & some use it as a weapon rather than a shield

Arrest brings humiliation and harassment.

Law commission, Police Commission & courts in many judgments emphasized the need to maintain a balance between Individual Liberty and Social Order while exercising the power of arrest.

No arrest should be made only because the offence is non-bailable, cognizable, and therefore lawful for the police Officer to do so.

No arrest should be made without reasonable satisfaction reached after investigation as to the genuineness of the allegation.

Law Commission Reports in the year 1994(152 & 154) & in 2001(177), amendment in the Section 41(1) “a” to “e” of Cr PC.

Section 41 (1): Any Police Officer may without an order from a Magistrate and without warrant arrest a person. Committed a cognizable offence which is punishable with a term less than or which may extend to 7 years.

Arrest is necessary to

(a) prevent the person from committing further offences.

(b) For proper investigation of the case.

(d) Prevent the accused from threatening any person from disclosing the facts to the court.

(e): Prevent the accused from absconding.

If arrest is required Police Officer should record the reasons in writing & before making the arrest following questions should be answered in his mind.

Why arrest?
Is it really required?
What purpose it will serve?
What object it will achieve?

Article 22 (2) of Indian Constitution: Arrested person should be produced before the magistrate within 24 hours.

Section 57 of Cr PC: Person arrested shouldn’t be detained for more than 24 hours.

Section 167 Cr PC: If the investigation cannot be completed within 24 hours, the Sub Inspector or any higher rank Officer transmit the case diary & the accused to the nearest Magistrate (have jurisdiction or not doesn’t matter) to authorize time to time the custody of the accused which may not exceed 15 days.

Police Officer has to satisfy the Magistrate the Conditions of arrest after judicial scrutiny, the Magistrate should also observe the following things:

Specific reasons for arrest has been recorded.
are the reasons relevant?
Whether the Police Officer reached a reasonable conclusion to make the arrest?

Section 41 of CrPC Amendment Act 2008:

Notice of appearance before the Police Officer.
To comply with the Terms of the Notice.
If accused complies with the terms of the Notice he shouldn’t be arrested.
If he fails to comply with the Notice – may arrest for the offence mentioned in the notice.

Police Officer do not arrest unnecessarily and Magistrate do not authorize detention casually and mechanically

Guidelines to be followed in arrest;

State Governments should instruct the Police Officers to satisfy the necessity of arrest before making any arrest & make sure that it falls under the parameters of Section 41 of Cr PC.

All police officers will be provided with a checklist which contains the sub clauses mentioned in 41(I)b (II). Police officer shall forward the checklist duly filled and furnish reason & materials necessitated the arrest, before producing the accused before the magistrate.

If further detention is required magistrate shall peruse the report produced by the police Officer and only after recording his satisfaction grand further detention.

The decision not to arrest an accused should be forwarded to the Magistrate within two weeks from the date of 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 41 A of Cr PC may be served to the accused within two weeks from the date of institution of the case, which may be extended by the Superintendent of Police for the reasons recorded in writing.

Failure to comply above direction may lead to departmental action also shall be liable to be punished for contempt of Court. And this is applicable not only for cases falls under above sections but also for all such cases where the 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.