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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 o 201!)
ARNESH "UMAR ..... APPELLANT
VERSUS
STATE OF BIHAR # ANR. .... RESPONDENTS
J U D $ M E N T
C%&'()&*&+,- "). P)&.&(
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
!o"r# Prohi$ition Act, 1961% The &a'i&u& sentence
pro(ided under Section 498-A IPC is i&prison&ent
for a ter& "hich &a# e'tend to three #ears and
fine "hereas the &a'i&u& sentence pro(ided under
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Section 4 of the !o"r# Prohi$ition Act is t"o
#ears and "ith fine%
Petitioner happens to $e the hus$and of
respondent no%) S"eta *iran% The &arria+e $et"een
the& "as sole&ni,ed on 1
st
-ul#, )00.% /is atte&pt
to secure anticipator# $ail has failed and hence
he has 0noc0ed the door of this Court $# "a# of
this Special 1ea(e Petition%
1ea(e +ranted%
In su& and su$stance, alle+ation le(elled $#
the "ife a+ainst the appellant is that de&and of
2upees ei+ht lacs, a &aruti car, an air-
conditioner, tele(ision set etc% "as &ade $# her
&other-in-la" and father-in-la" and "hen this fact
"as $rou+ht to the appellant3s notice, he
supported his &other and threatened to &arr#
another "o&an% It has $een alle+ed that she "as
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dri(en out of the &atri&onial ho&e due to non-
fulfil&ent of the de&and of do"r#%
!en#in+ these alle+ations, the appellant
preferred an application for anticipator# $ail
"hich "as earlier re4ected $# the learned Sessions
-ud+e and thereafter $# the /i+h Court%
There is pheno&enal increase in &atri&onial
disputes in recent #ears% The institution of
&arria+e is +reatl# re(ered in this countr#%
Section 498-A of the IPC "as introduced "ith
a(o"ed o$4ect to co&$at the &enace of harass&ent
to a "o&an at the hands of her hus$and and his
relati(es% The fact that Section 498-A is a
co+ni,a$le and non-$aila$le offence has lent it a
du$ious place of pride a&on+st the pro(isions that
are used as "eapons rather than shield $#
dis+runtled "i(es% The si&plest "a# to harass is
to +et the hus$and and his relati(es arrested
under this pro(ision% In a 5uite nu&$er of cases,
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$ed-ridden +rand-fathers and +rand-&others of the
hus$ands, their sisters li(in+ a$road for decades
are arrested% 6Cri&e in India )01) Statistics7
pu$lished $# 8ational Cri&e 2ecords 9ureau,
:inistr# of /o&e Affairs sho"s arrest of 1,9.,.6)
persons all o(er India durin+ the #ear )01) for
offence under Section 498-A of the IPC, 9%4; &ore
than the #ear )011% 8earl# a 5uarter of those
arrested under this pro(ision in )01) "ere "o&en
i%e% 4.,9<1 "hich depicts that &others and sisters
of the hus$ands "ere li$erall# included in their
arrest net% Its share is 6; out of the total
persons arrested under the cri&es co&&itted under
Indian Penal Code% It accounts for 4%<; of total
cri&es co&&itted under different sections of penal
code, &ore than an# other cri&es e'ceptin+ theft
and hurt% The rate of char+e-sheetin+ in cases
under Section 498A, IPC is as hi+h as 9=%6;, "hile
the con(iction rate is onl# 1<;, "hich is lo"est
across all heads% As &an# as =,.),.06 cases are
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pendin+ trial of "hich on current esti&ate, nearl#
=,1.,000 are li0el# to result in ac5uittal%
Arrest $rin+s hu&iliation, curtails freedo&
and cast scars fore(er% 1a" &a0ers 0no" it so
also the police% There is a $attle $et"een the
la" &a0ers and the police and it see&s that police
has not learnt its lesson> the lesson i&plicit and
e&$odied in the Cr%PC% It has not co&e out of its
colonial i&a+e despite si' decades of
independence, it is lar+el# considered as a tool
of harass&ent, oppression and surel# not
considered a friend of pu$lic% The need for
caution in e'ercisin+ the drastic po"er of arrest
has $een e&phasi,ed ti&e and a+ain $# Courts $ut
has not #ielded desired result% Po"er to arrest
+reatl# contri$utes to its arro+ance so also the
failure of the :a+istrac# to chec0 it% 8ot onl#
this, the po"er of arrest is one of the lucrati(e
sources of police corruption% The attitude to
arrest first and then proceed "ith the rest is
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despica$le% It has $eco&e a hand# tool to the
police officers "ho lac0 sensiti(it# or act "ith
o$li5ue &oti(e%
1a" Co&&issions, Police Co&&issions and this
Court in a lar+e nu&$er of 4ud+&ents e&phasi,ed
the need to &aintain a $alance $et"een indi(idual
li$ert# and societal order "hile e'ercisin+ the
po"er of arrest% Police officers &a0e arrest as
the# $elie(e that the# possess the po"er to do so%
As the arrest curtails freedo&, $rin+s hu&iliation
and casts scars fore(er, "e feel differentl#% ?e
$elie(e that no arrest should $e &ade onl#
$ecause the offence is non-$aila$le and co+ni,a$le
and therefore, la"ful for the police officers to
do so% The e'istence of the po"er to arrest is
one thin+, the 4ustification for the e'ercise of
it is 5uite another% Apart fro& po"er to arrest,
the police officers &ust $e a$le to 4ustif# the
reasons thereof% 8o arrest can $e &ade in a
routine &anner on a &ere alle+ation of co&&ission
of an offence &ade a+ainst a person% It "ould $e
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prudent and "ise for a police officer that no
arrest is &ade "ithout a reasona$le satisfaction
reached after so&e in(esti+ation as to the
+enuineness of the alle+ation% !espite this le+al
position, the 1e+islature did not find an#
i&pro(e&ent% 8u&$ers of arrest ha(e not
decreased% @lti&atel#, the Parlia&ent had to
inter(ene and on the reco&&endation of the 1..
th
2eport of the 1a" Co&&ission su$&itted in the #ear
)001, Section 41 of the Code of Cri&inal Procedure
(for short ACr%PC, in the present for& ca&e to $e
enacted% It is interestin+ to note that such a
reco&&endation "as &ade $# the 1a" Co&&ission in
its 1<)
nd
and 1<4
th
2eport su$&itted as $ac0 in the
#ear 1994% The (alue of the proportionalit#
per&eates the a&end&ent relatin+ to arrest% As
the offence "ith "hich "e are concerned in the
present appeal, pro(ides for a &a'i&u& punish&ent
of i&prison&ent "hich &a# e'tend to se(en #ears
and fine, Section 41(1($, Cr%PC "hich is
rele(ant for the purpose reads as follo"sB
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641. /%0' 1o,-20 *&3 &))0.4 5-4%o+4
5&))&'4%-(1 An# police officer &a# "ithout
an order fro& a :a+istrate and "ithout a
"arrant, arrest an# person C
(&)' ' ' ' ' '
(6)a+ainst "ho& a reasona$le co&plaint
has $een &ade, or credi$le infor&ation
has $een recei(ed, or a reasona$le
suspicion e'ists that he has co&&itted a
co+ni,a$le offence punisha$le "ith
i&prison&ent for a ter& "hich &a# $e less
than se(en #ears or "hich &a# e'tend to
se(en #ears "hether "ith or "ithout fine,
if the follo"in+ conditions are
satisfied, na&el# B-
(i ' ' ' ' '
(ii the police officer is satisfied
that such arrest is necessar# C
(a to pre(ent such person fro&
co&&ittin+ an# further offence> or
($ for proper in(esti+ation of the
offence> or
(c to pre(ent such person fro& causin+
the e(idence of the offence to
disappear or ta&perin+ "ith such
e(idence in an# &anner> or
(d to pre(ent such person fro& &a0in+
an# induce&ent, threat or pro&ise
to an# person ac5uainted "ith the
facts of the case so as to dissuade
hi& fro& disclosin+ such facts to
the Court or to the police officer>
or
(e as unless such person is arrested,
his presence in the Court "hene(er
re5uired cannot $e ensured,
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and the police officer shall record "hile
&a0in+ such arrest, his reasons in "ritin+B
Pro(ided that a police officer shall, in
all cases "here the arrest of a person is
not re5uired under the pro(isions of this
su$-section, record the reasons in "ritin+
for not &a0in+ the arrest%
D ' ' ' ' '
Ero& a plain readin+ of the aforesaid pro(ision,
it is e(ident that a person accused of offence
punisha$le "ith i&prison&ent for a ter& "hich
&a# $e less than se(en #ears or "hich &a# e'tend
to se(en #ears "ith or "ithout fine, cannot $e
arrested $# the police officer onl# on its
satisfaction that such person had co&&itted the
offence punisha$le as aforesaid% Police officer
$efore arrest, in such cases has to $e further
satisfied that such arrest is necessar# to
pre(ent such person fro& co&&ittin+ an# further
offence> or for proper in(esti+ation of the
case> or to pre(ent the accused fro& causin+ the
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e(idence of the offence to disappear> or
ta&perin+ "ith such e(idence in an# &anner> or
to pre(ent such person fro& &a0in+ an#
induce&ent, threat or pro&ise to a "itness so as
to dissuade hi& fro& disclosin+ such facts to
the Court or the police officer> or unless such
accused person is arrested, his presence in the
court "hene(er re5uired cannot $e ensured%
These are the conclusions, "hich one &a# reach
$ased on facts% 1a" &andates the police officer
to state the facts and record the reasons in
"ritin+ "hich led hi& to co&e to a conclusion
co(ered $# an# of the pro(isions aforesaid,
"hile &a0in+ such arrest% 1a" further re5uires
the police officers to record the reasons in
"ritin+ for not &a0in+ the arrest% In pith and
core, the police office $efore arrest &ust put a
5uestion to hi&self, "h# arrestF Is it reall#
re5uiredF ?hat purpose it "ill ser(eF ?hat
o$4ect it "ill achie(eF It is onl# after these
5uestions are addressed and one or the other
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conditions as enu&erated a$o(e is satisfied, the
po"er of arrest needs to $e e'ercised% In fine,
$efore arrest first the police officers should
ha(e reason to $elie(e on the $asis of
infor&ation and &aterial that the accused has
co&&itted the offence% Apart fro& this, the
police officer has to $e satisfied further that
the arrest is necessar# for one or the &ore
purposes en(isa+ed $# su$-clauses (a to (e of
clause (1 of Section 41 of Cr%PC%
An accused arrested "ithout "arrant $#
the police has the constitutional ri+ht under
Article ))() of the Constitution of India and
Section <., Cr%PC to $e produced $efore the
:a+istrate "ithout unnecessar# dela# and in no
circu&stances $e#ond )4 hours e'cludin+ the ti&e
necessar# for the 4ourne#% !urin+ the course of
in(esti+ation of a case, an accused can $e 0ept
in detention $e#ond a period of )4 hours onl#
"hen it is authorised $# the :a+istrate in
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e'ercise of po"er under Section 16. Cr%PC% The
po"er to authorise detention is a (er# sole&n
function% It affects the li$ert# and freedo& of
citi,ens and needs to $e e'ercised "ith +reat
care and caution% Gur e'perience tells us that
it is not e'ercised "ith the seriousness it
deser(es% In &an# of the cases, detention is
authorised in a routine, casual and ca(alier
&anner% 9efore a :a+istrate authorises
detention under Section 16., Cr%PC, he has to $e
first satisfied that the arrest &ade is le+al
and in accordance "ith la" and all the
constitutional ri+hts of the person arrested is
satisfied% If the arrest effected $# the police
officer does not satisf# the re5uire&ents of
Section 41 of the Code, :a+istrate is dut# $ound
not to authorise his further detention and
release the accused% In other "ords, "hen an
accused is produced $efore the :a+istrate, the
police officer effectin+ the arrest is re5uired
to furnish to the :a+istrate, the facts, reasons
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and its conclusions for arrest and the
:a+istrate in turn is to $e satisfied that
condition precedent for arrest under Section 41
Cr%PC has $een satisfied and it is onl#
thereafter that he "ill authorise the detention
of an accused% The :a+istrate $efore
authorisin+ detention "ill record its o"n
satisfaction, &a# $e in $rief $ut the said
satisfaction &ust reflect fro& its order% It
shall ne(er $e $ased upon the ipse di'it of the
police officer, for e'a&ple, in case the police
officer considers the arrest necessar# to
pre(ent such person fro& co&&ittin+ an# further
offence or for proper in(esti+ation of the case
or for pre(entin+ an accused fro& ta&perin+ "ith
e(idence or &a0in+ induce&ent etc%, the police
officer shall furnish to the :a+istrate the
facts, the reasons and &aterials on the $asis of
"hich the police officer had reached its
conclusion% Those shall $e perused $# the
:a+istrate "hile authorisin+ the detention and
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onl# after recordin+ its satisfaction in "ritin+
that the :a+istrate "ill authorise the detention
of the accused% In fine, "hen a suspect is
arrested and produced $efore a :a+istrate for
authorisin+ detention, the :a+istrate has to
address the 5uestion "hether specific reasons
ha(e $een recorded for arrest and if so, pri&a
facie those reasons are rele(ant and secondl# a
reasona$le conclusion could at all $e reached $#
the police officer that one or the other
conditions stated a$o(e are attracted% To this
li&ited e'tent the :a+istrate "ill &a0e 4udicial
scrutin#%
Another pro(ision i%e% Section 41A Cr%PC
ai&ed to a(oid unnecessar# arrest or threat of
arrest loo&in+ lar+e on accused re5uires to $e
(italised% Section 41A as inserted $# Section
6 of the Code of Cri&inal Procedure (A&end&ent
Act, )008(Act < of )009, "hich is rele(ant in
the conte't reads as follo"sB
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641A% 8otice of appearance $efore
police officer%-(1 The police
officer shall, in all cases "here
the arrest of a person is not
re5uired under the pro(isions of
su$-section (1 of Section 41, issue
a notice directin+ the person
a+ainst "ho& a reasona$le co&plaint
has $een &ade, or credi$le
infor&ation has $een recei(ed, or a
reasona$le suspicion e'ists that he
has co&&itted a co+ni,a$le offence,
to appear $efore hi& or at such
other place as &a# $e specified in
the notice%
() ?here such a notice is issued to
an# person, it shall $e the dut# of
that person to co&pl# "ith the ter&s
of the notice%
(= ?here such person co&plies and
continues to co&pl# "ith the notice,
he shall not $e arrested in respect
of the offence referred to in the
notice unless, for reasons to $e
recorded, the police officer is of
the opinion that he ou+ht to $e
arrested%
(4 ?here such person, at an# ti&e,
fails to co&pl# "ith the ter&s of
the notice or is un"illin+ to
identif# hi&self, the police officer
&a#, su$4ect to such orders as &a#
ha(e $een passed $# a co&petent
Court in this $ehalf, arrest hi& for
the offence &entioned in the
notice%7
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Aforesaid pro(ision &a0es it clear that
in all cases "here the arrest of a person is not
re5uired under Section 41(1, Cr%PC, the police
officer is re5uired to issue notice directin+
the accused to appear $efore hi& at a specified
place and ti&e% 1a" o$li+es such an accused to
appear $efore the police officer and it further
&andates that if such an accused co&plies "ith
the ter&s of notice he shall not $e arrested,
unless for reasons to $e recorded, the police
office is of the opinion that the arrest is
necessar#% At this sta+e also, the condition
precedent for arrest as en(isa+ed under Section
41 Cr%PC has to $e co&plied and shall $e su$4ect
to the sa&e scrutin# $# the :a+istrate as
aforesaid%
?e are of the opinion that if the
pro(isions of Section 41, Cr%PC "hich authorises
the police officer to arrest an accused "ithout
an order fro& a :a+istrate and "ithout a "arrant
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are scrupulousl# enforced, the "ron+ co&&itted
$# the police officers intentionall# or
un"ittin+l# "ould $e re(ersed and the nu&$er of
cases "hich co&e to the Court for +rant of
anticipator# $ail "ill su$stantiall# reduce% ?e
"ould li0e to e&phasise that the practice of
&echanicall# reproducin+ in the case diar# all
or &ost of the reasons contained in Section 41
Cr%PC for effectin+ arrest $e discoura+ed and
discontinued%
Gur endea(our in this 4ud+&ent is to ensure
that police officers do not arrest accused
unnecessaril# and :a+istrate do not authorise
detention casuall# and &echanicall#% In order
to ensure "hat "e ha(e o$ser(ed a$o(e, "e +i(e
the follo"in+ directionB
(1 All the State Ho(ern&ents to instruct its
police officers not to auto&aticall# arrest
"hen a case under Section 498-A of the IPC
is re+istered $ut to satisf# the&sel(es
a$out the necessit# for arrest under the
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para&eters laid do"n a$o(e flo"in+ fro&
Section 41, Cr%PC>
() All police officers $e pro(ided "ith a
chec0 list containin+ specified su$-clauses
under Section 41(1($(ii>
(= The police officer shall for"ard the chec0
list dul# filed and furnish the reasons and
&aterials "hich necessitated the arrest,
"hile for"ardin+Iproducin+ the accused
$efore the :a+istrate for further
detention>
(4 The :a+istrate "hile authorisin+ detention
of the accused shall peruse the report
furnished $# the police officer in ter&s
aforesaid and onl# after recordin+ its
satisfaction, the :a+istrate "ill authorise
detention>
(< The decision not to arrest an accused, $e
for"arded to the :a+istrate "ithin t"o
"ee0s fro& the date of the institution of
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the case "ith a cop# to the :a+istrate
"hich &a# $e e'tended $# the Superintendent
of police of the district for the reasons
to $e recorded in "ritin+>
(6 8otice of appearance in ter&s of Section
41A of Cr%PC $e ser(ed on the accused
"ithin t"o "ee0s fro& the date of
institution of the case, "hich &a# $e
e'tended $# the Superintendent of Police of
the !istrict for the reasons to $e recorded
in "ritin+>
(. Eailure to co&pl# "ith the directions
aforesaid shall apart fro& renderin+ the
police officers concerned lia$le for
depart&ental action, the# shall also $e
lia$le to $e punished for conte&pt of court
to $e instituted $efore /i+h Court ha(in+
territorial 4urisdiction%
(8 Authorisin+ detention "ithout recordin+
reasons as aforesaid $# the 4udicial
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:a+istrate concerned shall $e lia$le for
depart&ental action $# the appropriate /i+h
Court%
?e hasten to add that the directions
aforesaid shall not onl# appl# to the cases
under Section 498-A of the I%P%C% or Section 4
of the !o"r# Prohi$ition Act, the case in
hand, $ut also such cases "here offence is
punisha$le "ith i&prison&ent for a ter& "hich
&a# $e less than se(en #ears or "hich &a#
e'tend to se(en #ears> "hether "ith or "ithout
fine%
?e direct that a cop# of this 4ud+&ent $e
for"arded to the Chief Secretaries as also the
!irector Henerals of Police of all the State
Ho(ern&ents and the @nion Territories and the
2e+istrar Heneral of all the /i+h Courts for
on"ard trans&ission and ensurin+ its
co&pliance%
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9# order dated =1
st
of Gcto$er, )01=, this
Court had +ranted pro(isional $ail to the
appellant on certain conditions% ?e &a0e this
order a$solute%
In the result, "e allo" this appeal,
&a0in+ our aforesaid order dated =1
st
Gcto$er,
)01= a$solute> "ith the directions aforesaid%
J
(CHANDRAMAULI KR. PRASAD)
J
(PINAKI CHANDRA GHOSE)
NEW DELHI,
July 2, 2014.
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