REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
ARNESH KUMAR........................ APPELLANT
VERSUS
J U D G M E N T
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.
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 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
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.
“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 office 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 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 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 authorise 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 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;
(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) Authorising 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.
Comments
Post a Comment