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SC outlaws routine arrests using 498A

New Delhi, July 2: The Supreme Court today asked police and magistrates to desist from mechanical arrests and detention, specifically mentioning that IPC’s Section 498A intended at protecting women was sometimes being used as a “weapon rather than a shield by disgruntled wives”.

The apex court ruled that no person accused of an offence punishable with imprisonment up to seven years should be arrested by the police without proper investigation.

The offences will include cheating, harassment of wife by husband and other family members, domestic violence, forgery, trespassing and causing hurt.

The court said magistrates should henceforth take steps to ensure that the accused in criminal cases punishable with seven years’ rigorous imprisonment are not mechanically kept in jails pending trial.

In effect, the police cannot arrest any person without conducting a preliminary investigation into the veracity of the allegations. Magistrates also cannot routinely remand them in judicial custody.

Failure to comply with the court order will invite disciplinary action, a bench of Justices C.K. Prasad and P.C. Ghose said in a judgment that laid down guidelines for states and Union territories.

The bench passed the ruling saying that such a directive was necessary in view of the increasing number of arrests of persons falsely implicated in criminal cases under 498A IPC (harassment of women by husband and other family members).

Such arrests, the court said, resulted in harassment, victimisation and humiliation of a large number of persons in the country.

“The fact that Section 498A is a cognisable and non-bailable offence has lent it a dubious place of pride amongst the provisions that are used as weapons rather than a shield by disgruntled wives. The simplest way to harass is to get the husband and his relatives arrested under this provision.

“In quite a number of cases, bed-ridden grandfathers and grandmothers of the husbands, their sisters living abroad for decades are arrested,” said Justice Prasad, writing the judgment.

The court passed the judgment while dealing with an appeal filed by Arnesh Kumar of Bihar, challenging the criminal cases registered against him and his family members by his estranged wife in a matrimonial dispute.

The apex court cited the statistics of the National Crime Records Bureau, which revealed the arrest of 197,762 people all over India in 2012 for offences under Section 498A — 9.4 per cent more than that in 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,” the court said.

The court referred to the fallout of arrests and “the colonial mindset” of the police.

“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 police has not learnt its lesson; the lesson implicit and embodied in the CrPC (criminal procedure code). 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 apex court said.

The bench said the power to arrest — and failure of the magistracy to check it — greatly contributes to the arrogance of the police.

“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.

“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 cognisable and, therefore, lawful for the police officers to do so.”

The court drew a distinction between the “existence of power” and the “justification to exercise it”.

“The existence of the power to arrest is one thing, the justification for the exercise of it is quite another. Apart from the 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,” Justice Prasad said.

According to the court, before arrest, a police officer has to be satisfied that such action is necessary to prevent such a person from committing any further offence; or for proper investigation of the case; or to prevent the accused from causing destruction of evidence.

The apex court expressed displeasure at the manner in which the magistrates also routinely remanded the accused in judicial custody.

“In many of the cases, detention is authorised in a routine, casual and cavalier manner. Before a magistrate authorises detention under Section 167, CrPC, 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,” the bench said.

THE GUIDELINES

The guidelines reaffirmed or laid down by the Supreme Court on Wednesday. The directives will apply to cases under IPC Section 498A (mental or physical cruelty to a woman by husband or his relatives or dowry harassment), Section 4 of the Dowry Prohibition Act and also cases in which the punishment is up to seven years with or without fine

• All state governments should instruct police officers not to automatically arrest when a case under Section 498A, IPC, is registered

• The police must satisfy themselves about the necessity for arrest. The parameters for arrest are laid down in Section 41, CrPC

• All police officers must be provided with a checklist of sub-clauses under Section 41(1)(b)(ii). The sub-clauses say an officer needs to satisfy himself or herself that only detention can prevent another offence or inducements/threats to the complainant or ensure proper investigation or avert destruction of evidence or ensure the presence of the accused in court

• While producing the accused before the magistrate, the police officer should file the checklist and furnish the reasons and materials that necessitated the arrest

• The magistrate should peruse the report furnished by the police and order detention only after recording his or her satisfaction

• If an accused is not arrested, that reason should also be forwarded to the magistrate within two weeks from the date of the institution of the case. This may be extended by the SP but the reasons must be recorded in writing

• The accused should be asked to appear for questioning within two weeks from the date of institution of the case. This also may be extended by the SP but the reasons should be recorded in writing

• Failure to comply will invite departmental action against the police officers as well as contempt proceedings in the high court concerned

• Magistrates who authorise detention without recording the reasons will face department action by the high court


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