Arnesh Kumar v. State of Bihar [(2014) 8 SCC 273]

The present case deals with the problem of dowry in the country and the rights of an accused in a dowry case against him. The case deals with section 498A of the Indian Penal Code and Section 4 of the Dowry Prohibition Act.

Section 498A of the Indian Penal Code was added by The Criminal Law (Second Amendment) Act that states that “Husband or relative of husband of a woman subjecting her to cruelty.—Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be pun­ished with imprisonment for a term which may extend to three years and shall also be liable to fine.[1]” which gives the following ingredients to this section and make it highly important:

  • The woman must be married;
  • She must be subjected to cruelty or harassment; and
  • Such cruelty or harassment must have been inflicted either by the husband of the woman or by the relative of her husband.

Here cruelty can include:

  • Any willful conduct that is of such a nature as is likely to push the woman to commit suicide or to cause grave injury or danger to life, limb, or health (whether mental or physical) of the woman; or
  • Harassment of the woman where such harassment is done with a view to coercing her to fulfill any unlawful demand for any property or valuable security or is done on account of failure by her or any person related to her to fulfill such demand.

In the Indian Penal Code, Section 498A has brought a significant revision for defending women’s rights and empowerment under which any sort of extortion of property, by exposing a woman to cruelty is culpable under Section 498A. In around 80% of the cases, the episodes of abusive behavior at home or cruelty against women are identified with dowry. In this way, these rules and amendments were essential for keeping women from being mishandled and this Section is one of the significant enemies of anti-dowry laws in India.

In the judgement of the case Rajesh Sharma and ors. v. State of Uttar Pradesh and Anr.[2]and ManavAdhikar and Anr. v. Union of India and Ors.[3]the Hon’ble Supreme Court opined that there was a need to check the tendency of women to rope in all family members related to the crime of demanding dowry or not while filing a complaint alleging abuse and demand of dowry. The main direction given was for the establishment of the Family Welfare Committee which was directed to look into complaints filed under Section 498A and that no arrest shall be made until the report of the committee was duly received.

Section 4 of the Dowry Prohibition Act, 1961 states that “Penalty for demanding dowry.—If any person demands, directly or indirectly, from the parents or other relatives or guardian of a bride or bridegroom, as the case may be, any dowry, he shall be punishable with imprisonment for a term which shall not be less than six months, but which may extend to two years and with fine which may extend to ten thousand rupees. Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than six months.[4]Which generally means that asking for dowry is a punishable offense which makes a person liable to a fine of ten thousand rupees and imprisonment up to two years.

Facts

The Petitioner, Arnesh Kumar, was arrested under Section 4 of the Dowry Prohibition Act, 1961 after his wife affirmed that he requested dowry from her.She allegedthat Kumar’s parents demandedeight lakh rupees, a Maruti car, an air- conditioner, a television set, etc. and when this fact was brought to the Petitioner’s notice, 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 the claims, Kumar applied for anticipatory bail, yet his solicitation was denied. This drove him to appeal in the format of Special Leave Petition, which was allowed by the Supreme court of India.

In this particular case, the facts of the case are not significant in the setting needed for judgment as toward the end of judgment the Apex Court explained that these facts are material in cases covering matrimonial offenses. The Apex Court also opined that in different situations where the offense is culpable with imprisonment for a term which might be under seven years or which may stretch out to seven years, regardless of whether with or without fine. In this manner making this judgment an essential piece of Criminal Jurisprudence in India.It meant that the judgement concerning matrimonial cases depends on individual facts of the case, thus the facts of this case were irrelevant to the judgment that has been passed in it. 

Issue

The main issue here is the grant of anticipatory bail to the Petitioner. It was not granted by the High Court. The case also deals with the rights of an accused before and after the arrest. It also deals with the misuse of Section 498A of the Indian Penal Code, 1860 by women.

Judgement

The Supreme Court issued directives to the State Government regarding the arrest and right of the accused before and after the arrest. The anticipatory bail was granted to the Petitioner.

Critical Analysis of the Judgement

The court observed that “…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 offense Under Section 498-A of the Indian Penal Code, 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 the 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, Indian Penal Code 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 an acquittal.”[5] Observing this staggering data, Court saw that such abuse of arrest power of a police officer can’t be permitted. Expressions utilized by Apex Court are solid, as it saw that arrest brings embarrassment, abridges opportunity, and makes scars until the end of time. Hence Supreme Court gave guidelines and mandatory directions against such practice if the equivalent is done in a mechanical and obtuse way. Referring to statistics to show the abuse by the police officers, the Supreme Court continued to set out certain target standards to be applied before arresting the Criminal Procedure Code.

The Supreme Court, in its Ruling, stressed on the requirement for caution while practicing the drastic power of arrest, which has for quite a long time, been treated as an apparatus for harassment and oppression or mistreatment in the possession of the police officers and has extraordinarily added to police corruption or debasement in India.

The Supreme Court held that no arrest ought to be made simply because the offense is non-bailable and cognizable. Neither should arrest be made in a routine, casual and cavalier way or on a negligible claim of the commission of an offense made against an individual. Arrest should just be made after sensible fulfillment came to after due examination with regards to the validity of the charge. Managing Section 41(1) of the Code of Criminal Procedure, which accommodates conditions precedentto making an arrest, the Supreme Court stressed that for making an arrest, the police must fulfill all the conditions set out in the arrangement are met viz.:

An arrest is essential:

  • to keep such individual from submitting any further offense; or
  • for the legitimate examination of the case; or
  • to forestall pulverization or altering proof by the charged; or
  • to keep such individual from impacting the observers; or
  • to guarantee the nearness of the blamed in the court.

Police must, regardless, record explanations behind making, or not making the arrest in a specific case.

Further, the Supreme Court set out the conditions in which the Magistrate may approve detention of the accused. According to Article 22(2) of the Constitution of India and Section 57 of the Code of Criminal Procedure, an accused must be produced before the Magistrate immediately and in no situation past 24 hours, barring the time important for the journey. An accused might be kept in confinement past 24 hours of his arrest, just when approved by the Magistrate[6]. The Supreme Court held that when an accused is delivered before the Magistrate, the police officer effecting the arrest must furnish the facts, the reasons, and the conclusions for arrest and the Magistrate, just after being satisfied that the conditions of Section 41of Code of Criminal Procedure. are met andafter recording its satisfaction recorded in writing, may continue to approve the detention of the accused.

The Supreme Court, further, explained that even as far as Section 41A of the Code of Criminal Procedure, where the arrest of an accused is not required, the conditions precedent to arrest as visualized under Section 41 of Code of Criminal Procedure must be compiled to and will be dependent upon a similar examination by the Magistrate. The Supreme Court, in its Ruling, further censured the act of police precisely duplicating reasons contained in Section 41 Code of Criminal Procedure for affecting arrest in case diaries being kept up by the police officers.

Considering the abovementioned, the Supreme Court has given the accompanying directions to all the State Governments:

  • To instruct police officers to not precisely arrest the accused under Section 498A of the Indian Penal Code, without satisfying themselves that the conditions of arrest are met;
  • All police officers to be given the check-list of conditions precedent endorsed under Section 41 of the Code of Criminal Procedure. This check-list is to be properly recorded and sent to the Magistrate while producing the accused of further detention;
  • The Magistrate will at that point scrutinize the report gave by the police officer and simply in the wake of recording its fulfillment recorded as a hard copy, may approve detainment;
  • The choice to not arrest the charged ought to be sent to the Magistrate within two weeks from the date of institution of the case. The period might be stretched out by the Superintendent of police for motivations to be recorded in writing;
  • The notice of appearance as far as Section 41A Code of Criminal Procedure ought to be served on the accused within two weeks or fourteen days from the date of initiation of the case. The equivalent might be reached out by the Superintendent of police for motivations to be recorded in writing.
  • Failure to comply with the orders set out above may render police officers/Magistrates liable for departmental action and proceedings for contempt of court to be organized under the steady gaze of the High Court having territorial jurisdiction.

The Bench consisted of Justice Chandramauli Kumar Prasad and Justice Pinki Chandra Ghose and they very aptly summarized the issues with the system with the following statement:

“Arrest brings humiliation, curtails freedom, and casts scars forever. Lawmakers know it so also the police. There is a battle between the lawmakers and the police and it seems that the police have not learned its lesson: the lesson implicit and embodied in Cr.P.C.[7]” 

The Apex Court tried to push India to come out of the colonial image set upon police here. It further opined that even after several attempts to change the image of police from a tool of harassment of people in power to a mode of help for the citizens as public servants, the image is still prevailing. It further stated that the power of arrest given is a boost to police corruption. Police nowadays arrest first without any further thought about what will happen next. The police are not the only one at fault here, this power is also an abuse of power from the Magistracy in India who allow such arrest to be conducted without putting a stop to it.

On paper, this seems like a step forward to a more accountable police force but in practice, it is far from the case. The amended provisions of the Criminal Procedure Code and the directions issued by the Supreme Court were not being abided by the police officers and the non-compliance has had consequences.

Conclusion

India’s law on arrest, however reasonably developed, despite everything, does not have the ideal clarity. Arrest in India is made on the whim of the hat. All a woman needs to have her husband and his family arrested is a complaint under Section 498A. Thus, the arrest rate in India is high if compared to the conviction rate of the arrested persons that shows the need to check abuse of power of arrest vested with the police officers in India. The directions are given by the Supreme Court in the Ruling give some reprieve from the casual/mechanical approach of the authorities in making arrest/authorizing detentions based on insignificant claims or mere allegations of commission of an offense.

Also read Ajay Hasia & Ors. v. Khalid Mujib Sehravadi & Ors.


[1] Section 498A of the Indian Penal Code, 1860

[2] Special Leave Petition (Crl.) 2013 od 2017

[3] Writ Petition (Criminal) No. 156 of 2017

[4] Section 4 of the Dowry Prohibition Act, 1961

[5] Para 6 of the Judgement in the case Arnesh Kumar v. State of Bihar

[6] Section 167 of the Code of Criminal Procedure, 1973

[7] Para 7 of the judgement in the case of Arnesh Kumar v. State of Bihar