Arnesh Kumar Vs State of Bihar case:No automatic Arrest by police :Dictum on Section 41 of Cr.PC.
The following direction given by Apex court on section 41 Cr.PC
The following direction given by Apex court on section 41 Cr.PC
(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 recordedin
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.
The
apex Court also said that aforesaid direction, 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.
What to do if police violates sec-41[check list] and Arnesh kumar case apex court dictum and chooses to arrest a person arbitrarily with out following due procedure laid in Arnesh Kumar Judgment
- Approach concern H.C for contempt proceeding for violation of Apex court dictum in Arnesh Kumar Vs State of Bihar ,note that this apex court order is not only for arbitrary arrest in cases under section 498A of IPC ,but also other offences below 7 yrs imprisonment .
- Departmental disciplinary
proceeding against erring police officials
Full Text of the Apex court dictum on Section 41 of Cr.PC
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1277 OF 2014
(@SPECIAL LEAVE PETITION (CRL.) No.9127 of
2013)
ARNESH KUMAR ..... APPELLANT
VERSUS
STATE OF BIHAR & ANR. .... RESPONDENTS
J U D G M E N T
Chandramauli Kr.
Prasad
The petitioner
apprehends his 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. 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.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 hencehe has knocked the door
of this Court by way of this Special Leave
Petition.
Leave granted.
In sum and substance,
allegation levelled by the wife against the appellant is that demand of Rupees
eight lacs, a maruti car, an airconditioner, television set etc.was made by her
mother-in-law and father-in-law and when this fact was brought to the
appellant’s notice, he supported his mother and threatened to marry another
woman. It has been alleged that she was driven out of the matrimonial home due
to nonfulfilment of the demand of dowry. 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 i.e. 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
From a plain reading
of the aforesaid provision, it is evident that a person accused of offence 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.
An accused arrested
without warrant by the police has the constitutional right under Article 22(2)
of the Constitution of India and Section 57, Cr.PC to be produced before the Magistrate
without unnecessary delay and in no circumstances beyond 24 hours excluding the
time necessary for the journey. During the course of investigation of a case,
an accused can be kept in detention beyond a period of 24 hours only when it is
authorised by the Magistrate in exercise of power under Section 167 Cr.PC. The power
to authorise detention is a very solemn function. It affects the liberty and
freedom of citizens and needs to be exercised with great care and caution. Our
experience tells us that it is not exercised with the seriousness it deserves.
In many of the cases, detention is authorised in a routine, casual and cavalier
manner. Before a Magistrate authorises detention under Section 167, Cr.PC, he
has to be first satisfied that the arrest made is legal and in accordance with
law and all the constitutional rights of the person arrested is satisfied. If
the arrest effected by the police officer does not satisfy the requirements of Section
41 of the Code, Magistrate is duty bound not to authorise his further detention
and release the accused. In other words, when an accused is produced before the
Magistrate, the police officer effecting the arrest is required to furnish to
the Magistrate, the facts, reasons and its conclusions for arrest and the Magistrate
in turn is to be satisfied that condition precedent for arrest under Section 41
Cr.PC has been satisfied and it is only thereafter that he will authorise the
detention of an accused.The Magistrate before authorising detention will record
its own satisfaction, may be in brief but the said satisfaction must reflect
from its order. It
shall never be based
upon the ipse dixit of the police officer, for example, in case the police officer
considers the arrest necessary to prevent such person from committing any
further offence or for proper investigation of the case or for preventing an
accused from tampering with evidence or making inducement etc., the police
officer shall furnish
to the Magistrate the facts, the reasons and materials on the basis of which
the police officer had reached its
conclusion. Those
shall be perused by the Magistrate while authorising the detention and only
after recording its satisfaction in writing that the Magistrate will authorise
the detention of the accused. In fine, when a suspect is arrested and produced
before a Magistrate for authorising detention, the Magistrate has to
address the question
whether specific reasons have been recorded for arrest and if so, prima facie
those reasons are relevant and secondly a reasonable conclusion could at all be
reached by the police officer that one or the other conditions stated above are
attracted. To this limited extent the Magistrate will make judicial scrutiny.
Another provision
i.e. Section 41A Cr.PC aimed to avoid unnecessary arrest or threat of arrest
looming large on accused requires to be vitalised. Section 41A as inserted by
Section 6 of the Code of Criminal Procedure (Amendment) Act, 2008(Act 5 of
2009), which is relevant in the context reads as follows:
“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 Section41 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 itssatisfaction, 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.
J.(CHANDRAMAULI KR. PRASAD)
J.(PINAKI CHANDRA GHOSE)
NEW DELHI,July 2, 2014.
