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Arrest in 498a Cases Guidelines Issued 2014 SC
Arrest in 498a Cases Guidelines Issued 2014 SC
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1277 OF 2014
(@SPECIAL LEAVE PETITION (CRL.) No.9127 o 201!)
ARNESH "UMAR ..... APPELLANT
VERSUS
STATE OF BIHAR # ANR. .... RESPONDENTS
J U D $ M E N T
C%&'()&*&+,- "). P)&.&(
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
!o"r# Prohi$ition Act, 1961% The &a'i&u& sentence
pro(ided under Section 498-A IPC is i&prison&ent
for a ter& "hich &a# e'tend to three #ears and
fine "hereas the &a'i&u& sentence pro(ided under
Page 2
Section 4 of the !o"r# Prohi$ition Act is t"o
#ears and "ith fine%
Petitioner happens to $e the hus$and of
respondent no%) S"eta *iran% The &arria+e $et"een
the& "as sole&ni,ed on 1
st
-ul#, )00.% /is atte&pt
to secure anticipator# $ail has failed and hence
he has 0noc0ed the door of this Court $# "a# of
this Special 1ea(e Petition%
1ea(e +ranted%
In su& and su$stance, alle+ation le(elled $#
the "ife a+ainst the appellant is that de&and of
2upees ei+ht lacs, a &aruti car, an air-
conditioner, tele(ision set etc% "as &ade $# her
&other-in-la" and father-in-la" and "hen this fact
"as $rou+ht to the appellant3s notice, he
supported his &other and threatened to &arr#
another "o&an% It has $een alle+ed that she "as
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dri(en out of the &atri&onial ho&e due to non-
fulfil&ent of the de&and of do"r#%
!en#in+ these alle+ations, the appellant
preferred an application for anticipator# $ail
"hich "as earlier re4ected $# the learned Sessions
-ud+e and thereafter $# the /i+h Court%
There is pheno&enal increase in &atri&onial
disputes in recent #ears% The institution of
&arria+e is +reatl# re(ered in this countr#%
Section 498-A of the IPC "as introduced "ith
a(o"ed o$4ect to co&$at the &enace of harass&ent
to a "o&an at the hands of her hus$and and his
relati(es% The fact that Section 498-A is a
co+ni,a$le and non-$aila$le offence has lent it a
du$ious place of pride a&on+st the pro(isions that
are used as "eapons rather than shield $#
dis+runtled "i(es% The si&plest "a# to harass is
to +et the hus$and and his relati(es arrested
under this pro(ision% In a 5uite nu&$er of cases,
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$ed-ridden +rand-fathers and +rand-&others of the
hus$ands, their sisters li(in+ a$road for decades
are arrested% 6Cri&e in India )01) Statistics7
pu$lished $# 8ational Cri&e 2ecords 9ureau,
:inistr# of /o&e Affairs sho"s arrest of 1,9.,.6)
persons all o(er India durin+ the #ear )01) for
offence under Section 498-A of the IPC, 9%4; &ore
than the #ear )011% 8earl# a 5uarter of those
arrested under this pro(ision in )01) "ere "o&en
i%e% 4.,9<1 "hich depicts that &others and sisters
of the hus$ands "ere li$erall# included in their
arrest net% Its share is 6; out of the total
persons arrested under the cri&es co&&itted under
Indian Penal Code% It accounts for 4%<; of total
cri&es co&&itted under different sections of penal
code, &ore than an# other cri&es e'ceptin+ theft
and hurt% The rate of char+e-sheetin+ in cases
under Section 498A, IPC is as hi+h as 9=%6;, "hile
the con(iction rate is onl# 1<;, "hich is lo"est
across all heads% As &an# as =,.),.06 cases are
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pendin+ trial of "hich on current esti&ate, nearl#
=,1.,000 are li0el# to result in ac5uittal%
Arrest $rin+s hu&iliation, curtails freedo&
and cast scars fore(er% 1a" &a0ers 0no" it so
also the police% There is a $attle $et"een the
la" &a0ers and the police and it see&s that police
has not learnt its lesson> the lesson i&plicit and
e&$odied in the Cr%PC% It has not co&e out of its
colonial i&a+e despite si' decades of
independence, it is lar+el# considered as a tool
of harass&ent, oppression and surel# not
considered a friend of pu$lic% The need for
caution in e'ercisin+ the drastic po"er of arrest
has $een e&phasi,ed ti&e and a+ain $# Courts $ut
has not #ielded desired result% Po"er to arrest
+reatl# contri$utes to its arro+ance so also the
failure of the :a+istrac# to chec0 it% 8ot onl#
this, the po"er of arrest is one of the lucrati(e
sources of police corruption% The attitude to
arrest first and then proceed "ith the rest is
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despica$le% It has $eco&e a hand# tool to the
police officers "ho lac0 sensiti(it# or act "ith
o$li5ue &oti(e%
1a" Co&&issions, Police Co&&issions and this
Court in a lar+e nu&$er of 4ud+&ents e&phasi,ed
the need to &aintain a $alance $et"een indi(idual
li$ert# and societal order "hile e'ercisin+ the
po"er of arrest% Police officers &a0e arrest as
the# $elie(e that the# possess the po"er to do so%
As the arrest curtails freedo&, $rin+s hu&iliation
and casts scars fore(er, "e feel differentl#% ?e
$elie(e that no arrest should $e &ade onl#
$ecause the offence is non-$aila$le and co+ni,a$le
and therefore, la"ful for the police officers to
do so% The e'istence of the po"er to arrest is
one thin+, the 4ustification for the e'ercise of
it is 5uite another% Apart fro& po"er to arrest,
the police officers &ust $e a$le to 4ustif# the
reasons thereof% 8o arrest can $e &ade in a
routine &anner on a &ere alle+ation of co&&ission
of an offence &ade a+ainst a person% It "ould $e
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prudent and "ise for a police officer that no
arrest is &ade "ithout a reasona$le satisfaction
reached after so&e in(esti+ation as to the
+enuineness of the alle+ation% !espite this le+al
position, the 1e+islature did not find an#
i&pro(e&ent% 8u&$ers of arrest ha(e not
decreased% @lti&atel#, the Parlia&ent had to
inter(ene and on the reco&&endation of the 1..
th
2eport of the 1a" Co&&ission su$&itted in the #ear
)001, Section 41 of the Code of Cri&inal Procedure
(for short ACr%PC, in the present for& ca&e to $e
enacted% It is interestin+ to note that such a
reco&&endation "as &ade $# the 1a" Co&&ission in
its 1<)
nd
and 1<4
th
2eport su$&itted as $ac0 in the
#ear 1994% The (alue of the proportionalit#
per&eates the a&end&ent relatin+ to arrest% As
the offence "ith "hich "e are concerned in the
present appeal, pro(ides for a &a'i&u& punish&ent
of i&prison&ent "hich &a# e'tend to se(en #ears
and fine, Section 41(1($, Cr%PC "hich is
rele(ant for the purpose reads as follo"sB
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641. /%0' 1o,-20 *&3 &))0.4 5-4%o+4
5&))&'4%-(1 An# police officer &a# "ithout
an order fro& a :a+istrate and "ithout a
"arrant, arrest an# person C
(&)' ' ' ' ' '
(6)a+ainst "ho& a reasona$le co&plaint
has $een &ade, or credi$le infor&ation
has $een recei(ed, or a reasona$le
suspicion e'ists that he has co&&itted a
co+ni,a$le offence punisha$le "ith
i&prison&ent for a ter& "hich &a# $e less
than se(en #ears or "hich &a# e'tend to
se(en #ears "hether "ith or "ithout fine,
if the follo"in+ conditions are
satisfied, na&el# B-
(i ' ' ' ' '
(ii the police officer is satisfied
that such arrest is necessar# C
(a to pre(ent such person fro&
co&&ittin+ an# further offence> or
($ for proper in(esti+ation of the
offence> or
(c to pre(ent such person fro& causin+
the e(idence of the offence to
disappear or ta&perin+ "ith such
e(idence in an# &anner> or
(d to pre(ent such person fro& &a0in+
an# induce&ent, threat or pro&ise
to an# person ac5uainted "ith the
facts of the case so as to dissuade
hi& fro& disclosin+ such facts to
the Court or to the police officer>
or
(e as unless such person is arrested,
his presence in the Court "hene(er
re5uired cannot $e ensured,
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and the police officer shall record "hile
&a0in+ such arrest, his reasons in "ritin+B
Pro(ided that a police officer shall, in
all cases "here the arrest of a person is
not re5uired under the pro(isions of this
su$-section, record the reasons in "ritin+
for not &a0in+ the arrest%
D ' ' ' ' '
Ero& a plain readin+ of the aforesaid pro(ision,
it is e(ident that a person accused of offence
punisha$le "ith i&prison&ent for a ter& "hich
&a# $e less than se(en #ears or "hich &a# e'tend
to se(en #ears "ith or "ithout fine, cannot $e
arrested $# the police officer onl# on its
satisfaction that such person had co&&itted the
offence punisha$le as aforesaid% Police officer
$efore arrest, in such cases has to $e further
satisfied that such arrest is necessar# to
pre(ent such person fro& co&&ittin+ an# further
offence> or for proper in(esti+ation of the
case> or to pre(ent the accused fro& causin+ the
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e(idence of the offence to disappear> or
ta&perin+ "ith such e(idence in an# &anner> or
to pre(ent such person fro& &a0in+ an#
induce&ent, threat or pro&ise to a "itness so as
to dissuade hi& fro& disclosin+ such facts to
the Court or the police officer> or unless such
accused person is arrested, his presence in the
court "hene(er re5uired cannot $e ensured%
These are the conclusions, "hich one &a# reach
$ased on facts% 1a" &andates the police officer
to state the facts and record the reasons in
"ritin+ "hich led hi& to co&e to a conclusion
co(ered $# an# of the pro(isions aforesaid,
"hile &a0in+ such arrest% 1a" further re5uires
the police officers to record the reasons in
"ritin+ for not &a0in+ the arrest% In pith and
core, the police office $efore arrest &ust put a
5uestion to hi&self, "h# arrestF Is it reall#
re5uiredF ?hat purpose it "ill ser(eF ?hat
o$4ect it "ill achie(eF It is onl# after these
5uestions are addressed and one or the other
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conditions as enu&erated a$o(e is satisfied, the
po"er of arrest needs to $e e'ercised% In fine,
$efore arrest first the police officers should
ha(e reason to $elie(e on the $asis of
infor&ation and &aterial that the accused has
co&&itted the offence% Apart fro& this, the
police officer has to $e satisfied further that
the arrest is necessar# for one or the &ore
purposes en(isa+ed $# su$-clauses (a to (e of
clause (1 of Section 41 of Cr%PC%
An accused arrested "ithout "arrant $#
the police has the constitutional ri+ht under
Article ))() of the Constitution of India and
Section <., Cr%PC to $e produced $efore the
:a+istrate "ithout unnecessar# dela# and in no
circu&stances $e#ond )4 hours e'cludin+ the ti&e
necessar# for the 4ourne#% !urin+ the course of
in(esti+ation of a case, an accused can $e 0ept
in detention $e#ond a period of )4 hours onl#
"hen it is authorised $# the :a+istrate in
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e'ercise of po"er under Section 16. Cr%PC% The
po"er to authorise detention is a (er# sole&n
function% It affects the li$ert# and freedo& of
citi,ens and needs to $e e'ercised "ith +reat
care and caution% Gur e'perience tells us that
it is not e'ercised "ith the seriousness it
deser(es% In &an# of the cases, detention is
authorised in a routine, casual and ca(alier
&anner% 9efore a :a+istrate authorises
detention under Section 16., Cr%PC, he has to $e
first satisfied that the arrest &ade is le+al
and in accordance "ith la" and all the
constitutional ri+hts of the person arrested is
satisfied% If the arrest effected $# the police
officer does not satisf# the re5uire&ents of
Section 41 of the Code, :a+istrate is dut# $ound
not to authorise his further detention and
release the accused% In other "ords, "hen an
accused is produced $efore the :a+istrate, the
police officer effectin+ the arrest is re5uired
to furnish to the :a+istrate, the facts, reasons
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and its conclusions for arrest and the
:a+istrate in turn is to $e satisfied that
condition precedent for arrest under Section 41
Cr%PC has $een satisfied and it is onl#
thereafter that he "ill authorise the detention
of an accused% The :a+istrate $efore
authorisin+ detention "ill record its o"n
satisfaction, &a# $e in $rief $ut the said
satisfaction &ust reflect fro& its order% It
shall ne(er $e $ased upon the ipse di'it of the
police officer, for e'a&ple, in case the police
officer considers the arrest necessar# to
pre(ent such person fro& co&&ittin+ an# further
offence or for proper in(esti+ation of the case
or for pre(entin+ an accused fro& ta&perin+ "ith
e(idence or &a0in+ induce&ent etc%, the police
officer shall furnish to the :a+istrate the
facts, the reasons and &aterials on the $asis of
"hich the police officer had reached its
conclusion% Those shall $e perused $# the
:a+istrate "hile authorisin+ the detention and
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onl# after recordin+ its satisfaction in "ritin+
that the :a+istrate "ill authorise the detention
of the accused% In fine, "hen a suspect is
arrested and produced $efore a :a+istrate for
authorisin+ detention, the :a+istrate has to
address the 5uestion "hether specific reasons
ha(e $een recorded for arrest and if so, pri&a
facie those reasons are rele(ant and secondl# a
reasona$le conclusion could at all $e reached $#
the police officer that one or the other
conditions stated a$o(e are attracted% To this
li&ited e'tent the :a+istrate "ill &a0e 4udicial
scrutin#%
Another pro(ision i%e% Section 41A Cr%PC
ai&ed to a(oid unnecessar# arrest or threat of
arrest loo&in+ lar+e on accused re5uires to $e
(italised% Section 41A as inserted $# Section
6 of the Code of Cri&inal Procedure (A&end&ent
Act, )008(Act < of )009, "hich is rele(ant in
the conte't reads as follo"sB
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641A% 8otice of appearance $efore
police officer%-(1 The police
officer shall, in all cases "here
the arrest of a person is not
re5uired under the pro(isions of
su$-section (1 of Section 41, issue
a notice directin+ the person
a+ainst "ho& a reasona$le co&plaint
has $een &ade, or credi$le
infor&ation has $een recei(ed, or a
reasona$le suspicion e'ists that he
has co&&itted a co+ni,a$le offence,
to appear $efore hi& or at such
other place as &a# $e specified in
the notice%
() ?here such a notice is issued to
an# person, it shall $e the dut# of
that person to co&pl# "ith the ter&s
of the notice%
(= ?here such person co&plies and
continues to co&pl# "ith the notice,
he shall not $e arrested in respect
of the offence referred to in the
notice unless, for reasons to $e
recorded, the police officer is of
the opinion that he ou+ht to $e
arrested%
(4 ?here such person, at an# ti&e,
fails to co&pl# "ith the ter&s of
the notice or is un"illin+ to
identif# hi&self, the police officer
&a#, su$4ect to such orders as &a#
ha(e $een passed $# a co&petent
Court in this $ehalf, arrest hi& for
the offence &entioned in the
notice%7
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Aforesaid pro(ision &a0es it clear that
in all cases "here the arrest of a person is not
re5uired under Section 41(1, Cr%PC, the police
officer is re5uired to issue notice directin+
the accused to appear $efore hi& at a specified
place and ti&e% 1a" o$li+es such an accused to
appear $efore the police officer and it further
&andates that if such an accused co&plies "ith
the ter&s of notice he shall not $e arrested,
unless for reasons to $e recorded, the police
office is of the opinion that the arrest is
necessar#% At this sta+e also, the condition
precedent for arrest as en(isa+ed under Section
41 Cr%PC has to $e co&plied and shall $e su$4ect
to the sa&e scrutin# $# the :a+istrate as
aforesaid%
?e are of the opinion that if the
pro(isions of Section 41, Cr%PC "hich authorises
the police officer to arrest an accused "ithout
an order fro& a :a+istrate and "ithout a "arrant
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are scrupulousl# enforced, the "ron+ co&&itted
$# the police officers intentionall# or
un"ittin+l# "ould $e re(ersed and the nu&$er of
cases "hich co&e to the Court for +rant of
anticipator# $ail "ill su$stantiall# reduce% ?e
"ould li0e to e&phasise that the practice of
&echanicall# reproducin+ in the case diar# all
or &ost of the reasons contained in Section 41
Cr%PC for effectin+ arrest $e discoura+ed and
discontinued%
Gur endea(our in this 4ud+&ent is to ensure
that police officers do not arrest accused
unnecessaril# and :a+istrate do not authorise
detention casuall# and &echanicall#% In order
to ensure "hat "e ha(e o$ser(ed a$o(e, "e +i(e
the follo"in+ directionB
(1 All the State Ho(ern&ents to instruct its
police officers not to auto&aticall# arrest
"hen a case under Section 498-A of the IPC
is re+istered $ut to satisf# the&sel(es
a$out the necessit# for arrest under the
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para&eters laid do"n a$o(e flo"in+ fro&
Section 41, Cr%PC>
() All police officers $e pro(ided "ith a
chec0 list containin+ specified su$-clauses
under Section 41(1($(ii>
(= The police officer shall for"ard the chec0
list dul# filed and furnish the reasons and
&aterials "hich necessitated the arrest,
"hile for"ardin+Iproducin+ the accused
$efore the :a+istrate for further
detention>
(4 The :a+istrate "hile authorisin+ detention
of the accused shall peruse the report
furnished $# the police officer in ter&s
aforesaid and onl# after recordin+ its
satisfaction, the :a+istrate "ill authorise
detention>
(< The decision not to arrest an accused, $e
for"arded to the :a+istrate "ithin t"o
"ee0s fro& the date of the institution of
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the case "ith a cop# to the :a+istrate
"hich &a# $e e'tended $# the Superintendent
of police of the district for the reasons
to $e recorded in "ritin+>
(6 8otice of appearance in ter&s of Section
41A of Cr%PC $e ser(ed on the accused
"ithin t"o "ee0s fro& the date of
institution of the case, "hich &a# $e
e'tended $# the Superintendent of Police of
the !istrict for the reasons to $e recorded
in "ritin+>
(. Eailure to co&pl# "ith the directions
aforesaid shall apart fro& renderin+ the
police officers concerned lia$le for
depart&ental action, the# shall also $e
lia$le to $e punished for conte&pt of court
to $e instituted $efore /i+h Court ha(in+
territorial 4urisdiction%
(8 Authorisin+ detention "ithout recordin+
reasons as aforesaid $# the 4udicial
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:a+istrate concerned shall $e lia$le for
depart&ental action $# the appropriate /i+h
Court%
?e hasten to add that the directions
aforesaid shall not onl# appl# to the cases
under Section 498-A of the I%P%C% or Section 4
of the !o"r# Prohi$ition Act, the case in
hand, $ut also such cases "here offence is
punisha$le "ith i&prison&ent for a ter& "hich
&a# $e less than se(en #ears or "hich &a#
e'tend to se(en #ears> "hether "ith or "ithout
fine%
?e direct that a cop# of this 4ud+&ent $e
for"arded to the Chief Secretaries as also the
!irector Henerals of Police of all the State
Ho(ern&ents and the @nion Territories and the
2e+istrar Heneral of all the /i+h Courts for
on"ard trans&ission and ensurin+ its
co&pliance%
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9# order dated =1
st
of Gcto$er, )01=, this
Court had +ranted pro(isional $ail to the
appellant on certain conditions% ?e &a0e this
order a$solute%
In the result, "e allo" this appeal,
&a0in+ our aforesaid order dated =1
st
Gcto$er,
)01= a$solute> "ith the directions aforesaid%
J
(CHANDRAMAULI KR. PRASAD)
J
(PINAKI CHANDRA GHOSE)
NEW DELHI,
July 2, 2014.
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