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Arnesh Kumar V/s State of Bihar- Landmark Judgment |
Supreme Court of India
Arnesh
Kumar vs State Of Bihar & Anr on 2 July, 2014
Bench:
Chandramauli Kr. Prasad, Pinaki Chandra Ghose
RE-PORTABLE
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. Arnesh Kumar vs State Of Bihar & Anr on 2 July, 2014 SPECIAL LEAVE PETITION (CRL.) No.9127 of 2013 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 hence he has knocked the
door of this Court by way of this Special Leave Petition.
Leave granted.
In sum and substance, allegation leveled by the
wife against the appellant is that demand of Rupees eight lacs, a maruti car,
an air-conditioner, 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, Arnesh Kumar vs State Of Bihar & Anr on 2 July, 2014 SPECIAL LEAVE PETITION (CRL.) No.9127 of 2013 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 non- fulfillment 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. Arnesh Kumar vs State Of Bihar & Anr on 2 July, 2014 SPECIAL LEAVE PETITION (CRL.) No.9127 of 2013 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. Arnesh Kumar vs State Of Bihar & Anr on 2 July, 2014 SPECIAL LEAVE PETITION (CRL.) No.9127 of 2013 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 498-A, 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. Arnesh Kumar vs State Of Bihar & Anr on 2 July, 2014 SPECIAL LEAVE PETITION (CRL.) No.9127 of 2013 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. Arnesh Kumar vs State Of Bihar & Anr on 2 July, 2014 SPECIAL LEAVE PETITION (CRL.) No.9127 of 2013 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. Arnesh Kumar vs State Of Bihar & Anr on 2 July, 2014 SPECIAL LEAVE PETITION (CRL.) No.9127 of 2013 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 – to prevent such person from committing any further
offence; or for proper investigation of the offence; or to prevent such person
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 Arnesh Kumar vs State Of Bihar & Anr on 2 July, 2014 SPECIAL LEAVE PETITION (CRL.) No.9127 of 2013 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 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. Arnesh Kumar vs State Of Bihar & Anr on 2 July, 2014 SPECIAL LEAVE PETITION (CRL.) No.9127 of 2013 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, Arnesh Kumar vs State Of Bihar & Anr on 2 July, 2014 SPECIAL LEAVE PETITION (CRL.) No.9127 of 2013 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
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. Arnesh Kumar vs State Of Bihar & Anr on 2 July, 2014 SPECIAL LEAVE PETITION (CRL.) No.9127 of 2013 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 authorized by the Magistrate in exercise of power
under Section 167 Cr.PC. The power to authorize 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 authorized in a routine, casual and cavalier manner. Before a Magistrate authorizes 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 authorize 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 authorize the detention of an accused. Arnesh Kumar vs State Of Bihar & Anr on 2 July, 2014 SPECIAL LEAVE PETITION (CRL.) No.9127 of 2013 The Magistrate before authorizing 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 authorizing the detention and only after
recording its satisfaction in writing that the Magistrate will authorize the
detention of the accused. In fine, when a suspect is arrested and produced
before a Magistrate for authorizing 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 41 Cr.PC
aimed to avoid unnecessary arrest or threat of arrest looming large on accused
requires to be vitalized. 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: Arnesh Kumar vs State Of Bihar & Anr on 2 July, 2014 SPECIAL LEAVE PETITION (CRL.) No.9127 of 2013
“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. Arnesh Kumar vs State Of Bihar & Anr on 2 July, 2014 SPECIAL LEAVE PETITION (CRL.) No.9127 of 2013 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 Section 41 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. Arnesh Kumar vs State Of Bihar & Anr on 2 July, 2014 SPECIAL LEAVE PETITION (CRL.) No.9127 of 2013 We would like
to emphasize 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 endeavor in this judgment is to ensure that
police officers do not arrest accused unnecessarily and Magistrate do not authorize 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; Arnesh Kumar vs State Of Bihar & Anr on 2 July, 2014 SPECIAL LEAVE PETITION (CRL.) No.9127 of 2013
The Magistrate while authorizing 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 authorize 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; Arnesh Kumar vs State Of Bihar & Anr on 2 July, 2014 SPECIAL LEAVE PETITION (CRL.) No.9127 of 2013
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; Arnesh Kumar vs State Of Bihar & Anr on 2 July, 2014 SPECIAL LEAVE PETITION (CRL.) No.9127 of 2013 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.
Authorizing 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 Arnesh Kumar vs State Of Bihar & Anr on 2 July, 2014 SPECIAL LEAVE PETITION (CRL.) No.9127 of 2013 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.
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