498a indian penal code
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, victimization and humiliation of a large number of persons in the country.
“The fact that
Section 498A 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 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
