About the Author
Deepa Gopinath is a student of fourth semester Unitary LLB in Government Law College, Thiruvananthapuram.
The case of ‘Arnesh kumar v. State of Bihar (2014) is a very important case in criminal law where court laid down guidelines for arresting a person. It is a landmark judgement of the Indian Supreme Court on 2 July, 2014 by the Bench of Justice Chandramauli Kr. Prasad,and Justice Pinaki Chandra Ghose, stating arrests should be an exception, in cases where the punishment is less than seven years of imprisonment. The guidelines asked the police to determine whether an arrest was necessary under the provisions of Section 41 of the code of criminal procedure.
So the background of the case was the matter of domestic problems when a wife filed report against husband accusing him for demanding dowry.
Facts of the case
Complaint of the wife against the appellant, ie, Mr. Arneshkumar the husband was that he demanded Rupees eight lakhs, a maruti car, an air-conditioner, television set etc. As dowry and the demand was made by her mother-in-law, and her husband 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 Sessions Judge and thereafter by the High Court.
The petitioner apprehended his arrest in a case under Section 498-A of the Indian Penal Code, 1860(which was added by Criminal Law 2nd Amendment Act which states, Husband or relatives of husband of a woman subjecting her to cruelty- Whoever being the husband or relative of husband of a woman, subject such women to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine) 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.
The only issue that was involved in this particular case was the grant of anticipatory bail. The Anticipatory bail was not granted by the High Court. The case further deals with two of the most important issues i.e.
- Right of accused person before and after arrest
- What are the remedies that is left to a person when there is a misuse of Section 498-A of the Indian Penal Code by women?
His attempt to secure anticipatory bail has failed and hence he moved to supreme Court by way of Special Leave Petition.
Court’s observation on the scenario of arresting the accused casually
The court took grim view on the liberal and casual arrest of the accused husband in the dowry related cases. The court said that there is a phenomenal increase in matrimonial disputes in recent years. 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 and it is 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 some cases, bed-ridden grand-fathers and grand-mothers of the husbands, their sisters living abroad for decades are arrested. 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.
Speaking on the arrest, the court said that 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 have not learnt its lesson; the lesson implicit and embodied in the Cr.P.C.
The court ended up with its judgment by giving 8 golden principles/ directions for arresting person under Section 498-A of the Indian Penal Code. After discussing the provisions related to safeguard against arrest, the court laid down guidelines to be followed in arrest. The court directed-
- 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;
- 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 authorise 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.
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, 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.
Decision
The Supreme Court by way of its judgement has granted provision bail to the petitioner on certain grounds. In this landmark judgment the Court not only granted bail, but also discussed and touched upon those aspects which were not dealt earlier i.e. misuse of Section 498-A of the Indian Penal Code.
