In case of a cognizable and non-bailable case, the Police have the power to arrest any accused without a warrant.
However, it came to the Hon’ble Supreme Court’s notice that this power is blatantly misused by the Police and the rights of the accused are ignored.
Though this case in hand pertains to Section 498A and 4 of the Dowry Prohibition Act, 1961, mandatory guidelines about the arrest of the accused were laid by the Hon’ble SC in case of all the offences punishable by up to 7 years of imprisonment.
The directions for the Police as well as Magistrate are mandatory.
Arnesh Kumar vs State of Bihar 2014 (8) SCC 273
1. Facts of the case
Briefly stated, the case of the prosecution is that a wife made a complaint that her father-in-law and mother-in-law asked her to bring dowry in the form of a Maruti Car, 8 lakh rupees, TV, etc.
When this was told to her husband, he also supported his parents and even threatened his wife that he will marry someone else.
Based on these facts, the FIR was registered. Apprehending arrest the appellant(husband) moved an application for anticipatory bail but the same was rejected by both the High Court and the Supreme Court.
He has filed a Special leave petition in the Hon’ble Supreme Court.
Hence, this appeal where the offence punishable under Section 498A IPC is punishable with up to 3 years of imprisonment and section 4 of the Dowry Prohibition Act, 1961, with up to 2 years of imprisonment.
2. Observations
It would be prudent and wise for a police officer that no arrest is made without reasonable satisfaction reached after some investigation as to the genuineness of the allegations.
The existence of the power to arrest is one thing, the justification for the exercise of it is quite another.
No arrest should be made only because the offence is cognizable and non-bailable and, therefore, lawful for the police to do so.
The provisions of Section 41 are to be scrupulously enforced.
3. Directions of the Court
The court stated that ‘our endeavour in this Judgement is to ensure that police officers do not arrest accused unnecessarily and Magistrate does not authorise detention casually and mechanically.’
Six directions were issued by the Court, in this case, to decide whether or not to arrest the accused.
- No automatic arrest under Section 498A of the IPC(Section 41 of the CrPC to be seen).
- All the police officers shall forward the checklist under section 41(1)(b)(ii) duly filled while forwarding or producing the accused before the Magistrate for further detention.
- The Magistrate while authorizing the detention of the accused shall peruse the report forwarded by Police, and only after recording his satisfaction, he shall authorize detention.
- The decision not to arrest an accused, be forwarded to the Magistrate within 2 weeks from the date of the institution of the case.
- Notice of appearance in terms of section 41A CrPC is served on the accused within 2 weeks from the date of the institution of the case.
- Failure to comply with the above-stated directions will fetch both Departmental action as well as contempt of Court for PO and departmental action for Magistrates,
The Directions will not only apply to provisions of 498A IPC or Section 4 of the Dowry prohibition Act but also to other offences where imprisonment is less than 7 years or may extend to 7 years of imprisonment, with or without fine.
4. Failure to comply with the Directions
In the case of the Police Officer
- Shall be liable for departmental action.
- Contempt of Court before the High Court.
In the case of the Magistrate
Authorizing detention without recording reason shall be liable for departmental proceedings.
Note: To read the judgement, you can click here https://indiankanoon.org/doc/2982624/.
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