Landmark Case: The Supreme Court Clarifies the Police's Power to Arrest in 498A cases & other offences punishable up to 7 years

In a previous article, I had written about the rampant abuse of law relating to matrimonial disputes, namely section 498A, inter-alia by the police. This is an issue that the Hon'ble Supreme Court has thankfully addressed in a big way through a recent (2nd July 2014) judgment. Through the judgment, the Court has provided much needed corrective action by way of the issuance of directions curbing the practice of the police arresting without any restraint. The judgment can be accessed here: Arnesh Kumar Vs. State of Bihar & Anr.

As per the said judgment, the Court has recognized the rampant misuse of the powers of the arrest by the police, as well as the failure of magistrates to check this misuse. The Court recognized that arrests were being made routinely either due to non-application of mind in a callous and cavalier manner, or more insidiously, to fuel corruption; as held below:

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.

The directions in essence give life to the provisions of Sections 41 and 41A of the Code of Criminal Procedure, 1973. The said provisions provides for protection against unnecessary arrest, but as recognized by the Court, were rarely, if ever, given due consideration by the police or by magistrates. The scheme of the two sections are under:

Section 41 (Click to Expand)

Section 41
(As amended by the Code of Criminal Procedure Amendment Act, 2008 and the Code of Criminal Procedure Amendment Act, 2010)

As per s. 41(1)(b), the Police has the power to arrest a person without a warrant or order from a magistrate is restricted only when it has received a complaint, information, or has suspicion that the suspect has committed a cognizable offence punishable with up to 7 years imprisonment. In order to exercise this power, it is essential that in case of a complaint, it must be reasonable; in case of information, it must be credible; and in case of suspicion, it must be reasonable. Moreover, s. 41(1)(b) specifically restricts the exercise of such power of arrest only if the police officer has reason to believe on the basis of such complaint, information or suspicion that such person has committed the said offence; and the police officer is satisfied that such arrest is necessary-
  1. to prevent such person from committing any further offence, or  
  2. for proper investigation of the offence, or  
  3. to prevent such person from causing the evidence of the offence to disappear or tampering with such evidence in any manner; or  
  4. 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
  5. as unless such person is arrested, his presence in the Court whenever required cannot be ensured.
Moreover, it is mandatory that the police officer while making such arrest, has to record his reasons in writing.

Section 41A (Click to Expand)

Section 41A
(As introduced by the Code of Criminal Procedure Amendment Act, 2008 and as amended by the Code of Criminal Procedure Amendment Act, 2010)

As per s. 41A, in all cases where the arrest of a person is not required under the provisions of s.41(1), a police office has to issue a notice directing the suspected person to appear before him or at such other place as may be specified in the notice. In case of issuance of such a notice, it is the duty of that person to comply with the terms of the notice. The law gives protection to a person who complies with such a notice that so long as the 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 officers is of the opinion that he ought to be arrested. However, if the person,at any time, fails to comply with the terms of the notice, it shall be lawful for the police officer to arrest him for the offence mentioned in the notice, subject to such orders as may have been passed in this behalf by a competent Court.

Very significantly, in order to ensure implementation across the length and breadth of the country, the Apex court has armed its directions with teeth, and further directed that the failure to comply with its directions will result in the following consequences:

  • Consequences for the Police: Failure to adhere to the directions will render "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."
  • Consequences for Magistrates: "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 are summarised below:

(1)   The police officers cannot automatically arrest someone when a case under Section 498-A is registered but have to satisfy themselves about the necessity for arrest under the parameters discussed above;

(2)   The police officers are to be provided with a check list containing these paramters;

(3)  The police officer has to forward the check list duly filed and furnish the reasons and materials which necessitated the arrest, when the arrested person is produced before the Magistrate for further detention;

(4)  The Magistrate can only authorise the detention of a person after recording his/her satisfaction that the parameters for arrest are met.

(5)   In case the police decide not to arrest someone, they have to inform the Magistrate within two weeks from the date the case was instituted along with reasons to be recorded in writing.

(6)   In case the police decide to serve a s. 41A notice of appearance the same has to be served within two weeks from the date of institution of the case, extendible by the Superintendent of Police of the District;

(7)   If the concerned police officers do not comply with these directions, they would be liable for departmental action, as well as for punishment for contempt of court by the concerned High Court.

(8)  If the Magistrate, authorises detention without recording reasons, he/she would be liable for departmental action by the concerned High Court.

As I wrote previously, it has become commonplace in matrimonial disputes for misguided / unscrupulous litigants to file various false criminal complaints relating to dowry harassment, domestic violence etc. With these directions, the Court has at least taken a huge step to ensure that the police does not become an agent of harassment in the hands of such misguided / unscrupulous litigants. Hopefully the day will come soon when the Hon'ble Supreme Court also directs the various courts across the court to punish people filing false cases and complaints for perjury.

The significance of this judgment, however, has been understated by much of the media, as most newspaper articles are reporting it only in relation to dowry cases. In fact the Court has made these directions applicable to all criminal offences that are punishable with a term up to 7 years. The Court stated "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." (emphasis added)

This is an extremely welcome step taken by the highest court of the country, and apart from instilling some much needed rationality in the manner in which matrimonial disputes are handled, should also serve as a formidable shield of protection for honest citizens who find themselves being wrongly harassed by the police.