This Article is written by Arushi Chopra (pursuing BBA LLB from Symbiosis Law School, Noid)
Table of Contents
The case of Arnesh Kumar v. State of Bihar is a landmark case of arrest wherein the court gave certain guidelines for making the arrest procedure fair for both the accused and for the trial. It lays down the procedure that must be followed by the police officer while making an arrest and the magistrate while authorizing such arrest. The matter came up in an appeal before the Supreme Court and was heard by two judge bench comprising of Justice Chandramauli Kr. Prasad and Justice PC Ghose.
The court discussed the whole jurisprudence behind arrest while deciding whether the anticipatory bail should be granted to the accused. The directions that were issued in this case have a wide amplitude as these are applicable for arrest in all cognizable cases where the punishment is for imprisonment of upto seven years. This paper dwells into the factual development of the case and the judgement rendered and further tries to critically analyse the judgement rendered and its implications on the procedural law of arrest.
The petitioner, Arnesh Kumar was legally married to Sweta Kiran in the year 2007. The wife, Sweta Kiran filed a complaint under Section 498-A of the Indian Penal Code and the Dowry Prohibition Act against Arnesh Kumar and his family for demanding items like air conditioner, television, car and eight lakh rupees from her. She also alleged that she was physically and mentally tortured and the petitioner also threatened to marry another woman if the demands were not fulfilled.
A case was registered against the petitioner. The petitioner moved to the Sessions court for an anticipatory bail but the same was rejected. An application was also moved before the High Court but it was also rejected by the court. Consequently, a special leave petition was filed in the Supreme Court with a prayer for granting anticipatory bail. The Supreme Court had given a provisional anticipatory bail order on 31st October 2013 on this behalf and this case was referred to further look into this matter.
The following issues arose in the present case
- Whether arrest is a compulsory procedure in case of a cognizable offence?
- Whether anticipatory bail should be granted and whether the denial of anticipatory bail by the Sessions Court and the High Court was in the interest of justice?
Apart from these two issues, the court also dwelled on the concern for rising false cases being filed under Section 498-A of Indian Penal Code.
Responding to the first issue of whether arrest was necessary in this case, the respondents submitted that the accused is charged under Section 498-A of Indian Penal Code which is a cognizable and non-bailable offence. Criminal Procedure Code itself recognizes cognizable offences as more serious ones and thereby give the power to police officers to arrest without warrant. As the case in question is a cognizable case, arrest is necessary. For the next issue of grant of anticipatory bail, the respondents submitted that if bail is granted, there is a chance that the accused tampers with the evidence or threatens the witnesses.
The petitioners referred to the 152nd Law Commission Report which stressed that the police officer must have reasonable grounds to believe that the accused has committed the offence before making an arrest under Section 41 of CrPC. The petitioner also submitted that no evidence is present on record to prove that he had committed the alleged offence and thus the petitioner is entitled to bail as a safeguard from humiliation and other hardships.
Section 41 and 41-A has been incorporated in the Criminal Procedure Code which makes it evident that arrest is not a necessity in case of cognizable offences. The court observed that while making an arrest, the police officer has to ask himself questions like whether the arrest is really required and what purpose arrest would really serve. Similarly, the magistrate while authorizing the further arrest under Section 167 has to carefully peruse the police report and evidences and objectively form an opinion as to whether the arrest is essential.
The court also observed the increasing rate of complaints filed under Section 498-A of the Indian Penal Code and the unnecessary harassment that it causes to the husband and his family. Moreover, the conviction rates are very less which shows that many false allegations are made by the wives.
The Hon’ble court gave judgement in favour of the appellant and made the provisional bail order absolute. The court gave certain mandatory guidelines for arrest by police officer or authorization by the magistrate which if not followed can lead to departmental action.The state governments were directed to send the checklist under Section 41(i)(b) to each police station and this has to be sent to the magistrate on making an arrest who will objectively peruse the necessity of arrest. The decision not to arrest accused or give him notice to appearance under Section 41A has to be submitted before magistrate within two weeks. Also departmental actions for not following the guidelines or making arrest in contravention with Section 41 was provided.
Critical Analysis of the judgement
According to me, the judgement given by the court in this case is in interest of justice. The criminal justice system in India lays down express procedure for each step in order to be able to render effective justice. While doing so, it also seeks to ensure that the rights of neither the victim nor the accused is violated. Arrest is one area which has to be looked upon and scrutinized very carefully as it can affect the most primitive right i.e. right to life of the accused. When a person is subjected to arrest, he is humiliated in the society and is physically, mentally and financially drained. Thus, arrest has to be made only when it is necessary to do so and such an extreme measure should not be resorted in all cases. Cognizable offences are the serious offences where the police officers are given the power to arrest without warrant but this power should be exercised with reasonable justification. The court sought to differentiate between police in the colonial era and the modern age. Arresting person first and considering other things later is an approach which cannot be appreciated in any country which respects human rights.
The court provided for detailed guidelines for the police and also mandated departmental action for those who failed to perform these. The guidelines provided are in line with the rights of the accused recognized internationally also. The case upholds both the pre-arrest and post arrest rights of individuals. Also, it carves a duty on the magistrate authorizing arrest to ensure that reasonable grounds for arrest is present and a magistrate who fails in his duty can be penalized by the High Court in exercise of its inherent power.
The court in the present case has aptly depicted the importance of Section 41 and 41A of CrPC. If Section 41 is followed in its letter and spirit, it will not only protect the much stressed upon rights of an accused person but would also help in reduction of the bail cases that makes its way in the court. Section 41A provides for a notice of appearance which can be issued to the accused and this accused has to then appear. This negates the necessity of arrest for merely questioning the accused. The judgement rightly deviated from the earlier given perception that arrest is essential in cognizable cases for proper investigation. This case has been a guiding light for the police officers to ensure that arrest is taken as a last resort only if it is necessary in the interest of justice.
The judgement by the Supreme Court in the present case is based on the idea of the Supreme Court being the protector of human rights. By laying down the detailed guidelines for arrest procedure, the court has tried to uphold the rights of all accused and ensure that the citizens of the country are not humiliated and harassed by unnecessary arrests. The appeal was filed for granting bail to a person accused of Section 498-A of Indian Penal Code but it expressly provided that the guidelines will be applicable to all cases where punishment is less than or equal to seven years. Thus, it gave a wide amplitude to the case which is in consonance with the human rights approach.
The court portrayed the practical aspect of arrest by saying that neither the police officer nor the magistrate take into account the necessity of arrest and this has led to not only a taboo on the administrative authorities but also an increase in bail cases. Simply because a person is given the power to arrest does not mean that he should make arrests whimsically. Thus, power of arrest should be coupled with justification of arrest to uphold the human rights.
Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273
The Constitution of India Act, Art. 21
Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273, para 11
Recommended by Law Commission Report, Review of Rape Laws (Law Com. No. 172, 2000)
Law Commission Report, Review of Rape Laws (Law Com. No. 172, 2000); recommended for making Section 498A a non-cognisable offence as arrest was earlier considered necessary in cognizable cases.