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REPORTABLE 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

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Section  4  of  the  Dowry  Prohibition  Act  is  two  

years and with fine.

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 levelled 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,  he  

supported  his  mother  and  threatened  to  marry  

another woman.  It has been alleged that she was  

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driven out of the matrimonial home due to non-

fulfilment 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.  The simplest way to harass is  

to  get  the  husband  and  his  relatives  arrested  

under this provision.  In a quite number of cases,  

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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.  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 498A, 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  

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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.   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  

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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.  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  

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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.   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:

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“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 – (a) to  prevent  such  person  from  

committing any further offence; or (b) for  proper  investigation  of  the  

offence; or (c) to prevent such person from causing  

the  evidence  of  the  offence  to  disappear  or  tampering  with  such  evidence in any manner; or  

(d) to prevent such person from making  any inducement, threat or 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

(e) as unless such person is arrested,  his presence in the Court whenever  required cannot be ensured,

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 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.  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  

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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, 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  

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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 of Cr.PC.

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.  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  authorised  by  the  Magistrate  in  

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exercise of power under Section 167 Cr.PC.  The  

power to authorise 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  

authorised  in  a  routine,  casual  and  cavalier  

manner.   Before  a  Magistrate  authorises  

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  authorise  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  

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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 authorise the detention  

of  an  accused.   The  Magistrate  before  

authorising  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 authorising the detention and  

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only after recording its satisfaction in writing  

that the Magistrate will authorise the detention  

of the accused.  In fine, when a suspect is  

arrested and produced before a Magistrate for  

authorising  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 41A Cr.PC  

aimed to avoid unnecessary arrest or threat of  

arrest looming large on accused requires to be  

vitalised.   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:

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“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.”

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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.  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  

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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.  We  

would like to emphasise 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 endeavour in this judgment is to ensure  

that  police  officers  do  not  arrest  accused  

unnecessarily  and  Magistrate  do  not  authorise  

detention casually and mechanically.  In order  

to ensure what we have observed above, we give  

the following direction:

(1) 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  

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parameters  laid  down  above  flowing  from  

Section 41, Cr.PC;

(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 filed 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 authorising 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 authorise  

detention;

(5) The decision not to arrest an accused, be  

forwarded  to  the  Magistrate  within  two  

weeks from the date of the institution of  

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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  

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;

(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 High Court having  

territorial jurisdiction.   

(8) Authorising  detention  without  recording  

reasons  as  aforesaid  by  the  judicial  

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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.  

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By order dated 31st of October, 2013, this  

Court  had  granted  provisional  bail  to  the  

appellant on certain conditions. We make this  

order absolute.  

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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