In Arnesh Kumar vs. State of Bihar, Supreme Court stated that, arrest should be exception, in cases where punishment is less than seven years. The Supreme Court issued guidelines to determine the police whether arrest is necessary under the provisions of section 41 of Code of Criminal Procedure Code. Since the guidelines were issued by Supreme Court the legal proceedings can be initiated against the police officer and judicial officer if procedure for arrest under section 41 A Crpc. and Arnesh Kumar violated.
The facts of Arnesh Kumar vs. State of Bihar case in sum and substance that, wife levelled allegations against her husband are, demand of rupees eight lakhs, a Maruti car, an air conditioner, television set etc. was made by mother in law and father in law and when this fact is brought to the knowledge to husband he supported mother and threatens for second marriage.
Article 498A was enacted in 1983 to prohibit rising dowry deaths and violence against the married woman. Years later misuse of 498A was increasing. The woman used to allege crores of rupees as dowry without any valid proof and since offence is cognizable there were mechanical arrest.
In the present case court held that, no arrest should be made only because the offence is non bailable and cognizable and lawful for police officer to do so. The arrest by police has to justify the reason thereof. No arrest to be made on routine manner on a mere compliant against the person. The Court’s endeavour in the judgement that, police officer do not arrest accused unnecessarily and Magistrate do not authorise detention casually and mechanically. The court has issued following guidelines.
- All the State Government to instruct its police officers not to automatically arrest when a case u/s. 498A is registered but to satisfy themselves about the necessity for arrest under the parameters of section 41 of Crpc.
- 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; The Magistrate while authorising detention of the accused shall peruse the report of police officer and only after recording its satisfaction, the Magistrate will authorise 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;
- 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;
- Failure to comply with the directions aforesaid shall render the police officer and judicial officers liable for departmental action, they shall also be liable to be punished for contempt of court to be instituted before High Court.
- These directions shall not only apply to the cases under Section 498-A of the I.P.C. or Section 4 of the Dowry Prohibition Act, 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.
Hence court granted bail to husband on certain conditions.
Arnesh Kumar vs. State of Bihar, Cr.A.no.1277/2014, Supreme Court