2014 (7) TMI 1143 - SC - Indian Laws

Arrest in a case under Section 498-A of the Indian Penal Code, 1860 (hereinafter called as IPC) and Section 4 of the Dowry Prohibition Act, 1961 - Held 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 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. 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.

Summary

Issues Involved:
1. Allegations under Section 498-A IPC and Section 4 of the Dowry Prohibition Act.
2. Application and denial of anticipatory bail.
3. Misuse of Section 498-A IPC.
4. Guidelines for arrest under Section 41 of Cr.PC.
5. Role of Magistrate in authorizing detention.
6. Implementation of Section 41A Cr.PC.
7. Directions for police and judicial officers.

Issue-wise Detailed Analysis:

1. Allegations under Section 498-A IPC and Section 4 of the Dowry Prohibition Act:
The petitioner feared arrest under Section 498-A IPC, which prescribes a maximum sentence of three years and a fine, and Section 4 of the Dowry Prohibition Act, which prescribes a maximum sentence of two years and a fine. The allegations included demands for dowry and threats from the husband to marry another woman if the demands were not met.

2. Application and Denial of Anticipatory Bail:
The petitioner, who is the husband, sought anticipatory bail which was rejected by both the learned Sessions Judge and the High Court. He then approached the Supreme Court through a Special Leave Petition, which was granted.

3. Misuse of Section 498-A IPC:
The judgment highlighted the misuse of Section 498-A IPC, noting that the provision, meant to protect women from harassment, has often been used as a tool for harassment by disgruntled wives. Statistics from the National Crime Records Bureau showed a high number of arrests under Section 498-A IPC, with a significant proportion of those arrested being women, including elderly relatives of the husband.

4. Guidelines for Arrest under Section 41 of Cr.PC:
The court emphasized the need for caution in exercising the power of arrest. It stated that arrests should not be made merely because the offense is non-bailable and cognizable. The police must have reasonable grounds to believe that the arrest is necessary for preventing further offenses, proper investigation, preventing evidence tampering, or ensuring the accused's presence in court. The police officer must record the reasons for arrest in writing.

5. Role of Magistrate in Authorizing Detention:
The court underscored that the Magistrate must ensure the legality of the arrest and the fulfillment of constitutional rights before authorizing detention. The Magistrate should not authorize detention based on the police officer's mere assertion but must be satisfied with the reasons and materials presented. The Magistrate's satisfaction should be recorded in writing.

6. Implementation of Section 41A Cr.PC:
Section 41A Cr.PC requires the police to issue a notice of appearance to the accused instead of arresting them when the arrest is not necessary. If the accused complies with the notice, they should not be arrested unless the police record reasons for the necessity of arrest. This provision aims to avoid unnecessary arrests and should be subject to judicial scrutiny by the Magistrate.

7. Directions for Police and Judicial Officers:
The court issued several directions:
- State Governments must instruct police officers not to automatically arrest under Section 498-A IPC but to follow the guidelines under Section 41 Cr.PC.
- Police officers should use a checklist for arrest criteria and forward it with reasons to the Magistrate.
- Magistrates must peruse the police report and record satisfaction before authorizing detention.
- Decisions not to arrest must be forwarded to the Magistrate within two weeks.
- Notices under Section 41A Cr.PC must be served within two weeks.
- Non-compliance with these directions will result in departmental action and potential contempt of court proceedings.
- These directions apply to all offenses punishable with imprisonment up to seven years.

The court directed that copies of the judgment be sent to Chief Secretaries, Director Generals of Police of all States and Union Territories, and Registrar Generals of all High Courts for compliance. The provisional bail granted to the appellant was made absolute, and the appeal was allowed with the directions mentioned.