Police should not arrest suspects unnecessarily, Magistrates should not authorize detention casually and mechanically: SC reiterates Arnesh Kumar directions

By Sanjaya Jayasekera

The Supreme Court of India on Monday (July 31) has reiterated the guidelines set by it in its 2014 Arnesh Kumar judgement for arrest under Section 498A of the Indian Penal Code, 1860, and other offenses punishable by a maximum jail term of seven years [Asfak Alam vs. The State of Jharkhand]. The two judge bench has directed high courts and police chiefs to issue notifications and circulars in accordance with the guidelines. The Arnesh Kumar guidelines aim to combat harassment against married women by husbands and their relatives, particularly in connection with dowry demands. However, the law is susceptible to misuse, as it is a cognizable and non-bailable offense. 

The apex court bench of Justices Chandramauli Kumar Prasad and Pinaki Chandra Ghose issued guidelines, restraining the police from automatically arresting accused in dowry-related cases. The court emphasized that arrests cannot be made solely on the belief that the accused may have committed an offense that would attract Section 498A of the Indian Penal Code. The court also clarified that these guidelines would apply equally to other provisions in the Indian Penal Code under which an accused could be sentenced to imprisonment for seven years or less.

In 2015, the Supreme Court declined the request of the National Commission for Women (NCW) to review these guidelines, arguing that the July 2014 judgement went beyond the statutory mandate and gave wide discretion to the police with respect to the arrest of a person under Section 498A of the Indian Penal Code.

Considerations before Arrest 

With respect to the powers of the police, the discretion and the duties of the court in several kinds of cases, including those relating to the matrimonial offences such as 498A of IPC, and other cases,  the Court referred to the judgement in Arnesh Kumar v. State of Bihar and Another  [(2014) 8 SCR 128] in which the court decided upon what considerations a police officer should have before proceeding to arrest a person. In Arnesh Kumar the court held as follows: 

“From a plain reading of the aforesaid provision, it is evident that a person accused of an 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 his satisfaction that such person had committed the offence punishable as aforesaid. A 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. The 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. The law further requires the police officers to record the reasons in writing for not making the arrest. In pith and core, the police officer 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 CrPC.”

The court stated that, in Arnesh Kumar, the court also issued valuable directions to be followed by the police authorities and the courts, in all cases where the question of grant of bail arises.

Personal Liberty 

Citing Siddharth v. State of Uttar Pradesh and Another [(2022) 1 SCC 676]  the court approvingly quoted its decision which had underlined the centrality to personal liberty, that could affect gravely due to an arbitrary arrest: 

“We may note that personal liberty is an important aspect of our constitutional mandate. The occasion to arrest an accused during investigation arises when custodial investigation becomes necessary or it is a heinous crime or where there is a possibility of influencing the witnesses or accused may abscond. Merely because an arrest can be made because it is lawful does not mandate that arrest must be made. A distinction must be made between the existence of the power to arrest and the justification for exercise of it. If arrest is made routine, it can cause incalculable harm to the reputation arid self-esteem of a person. If the investigating officer has no reason to believe that the accused will abscond or disobey summons and has, in fact, throughout cooperated with the investigation we fail to appreciate why there should be a compulsion on the officer to arrest the accused.”

Arnesh Kumar Guidelines to Police and Magistrates 

Court in Arnesh Kumar held that its “endeavour in this judgment is to ensure that police officers do not arrest the accused unnecessarily and Magistrate do not authorize detention casually and mechanically. In order to, ensure what we have observed above, we give the following directions:

[I]

1. All the State Governments to instruct its police officers not to automatically arrest when a case under Section 498-A IPC is registered but to satisfy themselves about the necessity for arrest under the parameters laid down above flowing from Section 41 CrPC;
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 filled 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 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;
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 41-A CrPC 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 the High Court having territorial jurisdiction.
8. 11.8. Authorizing detention without recording reasons as aforesaid by the Judicial Magistrate concerned shall be liable for departmental action by the appropriate High Court.
9. 12. We hasten to add that the directions aforesaid shall not only apply to the case under Section 498-A IPC or Section 4 of the Dowry Prohibition Act, the case in hand, but also such cases where offence is punishable with imprisonment for a terms which may be less than seven years or which may extend to seven years, whether with or without fine.

[II] The High Court shall frame the above directions in the form of notifications and guidelines to be followed by the Sessions courts and all other and criminal courts dealing with various offences.

[III] Likewise, the Director General of Police in all States shall ensure that strict instructions in terms of above directions are issued. Both the High Courts and the DGP’s of all States shall ensure that such guidelines and Directives/Departmental Circulars are issued for guidance of all lower courts and police authorities in each State within eight weeks from today.

[IV] Affidavits of compliance shall be filed before this court within ten weeks

by all the states and High Courts, though their Registrars.”