MANU/SC/0559/2014

Equivalent Citation: AIR2014SC 2756, (2014)8SC C 273

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1277 of 2014 (Arising out of Special Leave Petition (Crl.) No. 9127
of 2013)
Decided On: 02.07.2014
Appellants: Arnesh Kumar
Vs.
Respondent: State of Bihar*
Hon'ble Judges/Coram:
C.K. Prasad and Pinaki Chandra Ghose, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: Rakesh Kumar and Kaushal Yadav, Advs.
For Respondents/Defendant: Rudreshwar Singh, Samir Ali Khan, Aparna Jha, Braj
Kishore Mishra and Abhishek Yadav, Advs.
Case Note:
Code of Criminal Procedure, 1973 (Central Act 2 of 1974) - Section 41--Power
of police to arrest without warrant--Police Officer has to record reasons in
writing which led him to conclude that the accused is liable to be arrested
without warrant--Directions issued to ensure that Police Officer do not arrest
the accused unnecessarily and Magistrate do not authorize detention of
citizen, casually and mechanically.
Petitioner, apprehending arrest in a case under Section 498A of the Penal
Code and Section 4 of the Dowry Prohibition Act, 1961, moved for anticipatory
bail, which was rejected. He approached the Supreme Court seeking
anticipatory bail. The court expressed dismay at the casual manner in which
husband and his relatives are arrayed as accused in an indictment under
Section 498A and Section 4 of the Dowry Prohibition Act, 1961. Apex Court
pointed out that the casual manner in which accused in such cases are
arrested and remanded to judicial custody. Emphasizing that the Police and
the Magistrates should be more circumspect in arresting the accused without
warrant and in committing them to judicial custody, Apex Court issued a
series of directions and;
Held:
Our endeavour in this judgment is to ensure that police officers do not arrest
accused unnecessarily and Magistrate do not authorise detention casually and
mechanically. In order to ensure what we have observed above, we give the
following direction:
(1) All the State Governments to instruct its police officers not to
automatically arrest when a case under Section 498 A of the IPC is registered
but to satisfy themselves about the necessity for arrest under the parameters

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laid down above flowing from Section 41, Cr.P.C.;
(2) All police officers be provided with a check list containing specified sub-
clauses under Section 41(1)(b)(ii);
(3) The police officer shall forward the check list duly filed and furnish the
reasons and materials which necessitated the arrest, while
forwarding/producing the accused before the Magistrate for Further
detention;
(4) The Magistrate while authorising detention of the accused shall peruse
the report furnished by the police officer in terms aforesaid and only after
recording its satisfaction, the Magistrate will authorise detention;
(5) The decision not to arrest an accused, be forwarded to the Magistrate
within two weeks from the date of the institution of the case with a copy to
the Magistrate which may be extended by the Superintendent of Police of the
District for the reasons to be recorded in writing;
(6) Notice of appearance in terms of Section 41A of Cr.P.C. be served on the
accused within two weeks from the date of institution of the case, which may
be extended by the Superintendent of Police of the District for the reasons to
be recorded in writing;
(7) Failure to comply with the directions aforesaid shall apart from rendering
the police officers concerned liable for departmental action, they shall also be
liable to be punished for contempt of court to be instituted before High Court
having territorial jurisdiction;
(8) Authorising detention without recording reasons as aforesaid by the
Judicial Magistrate concerned shall be liable for departmental action by the
appropriate High Court.
We hasten to add that the directions aforesaid shall not only apply to the
cases under Section 498 A of the I.P.C. or Section 4 of the Dowry Prohibition
Act, the case in hand, but also such cases where offence is punishable with
imprisonment for a term which may be less than seven years or which may
extend to seven years; whether with or without fine.
Case Category:
CRIMINAL MATTERS - CRIMINAL MATTERS RELATING TO BAIL/INTERIM
BAIL/ANTICIPATORY BAIL AND AGAINST SUSPENSION OF SENTENCE
JUDGMENT
C.K. Prasad, J.
1 . The Petitioner apprehends his arrest in a case Under Section 498-A of the Indian
Penal Code, 1860 (hereinafter called as Indian Penal Code) and Section 4 of the Dowry
Prohibition Act, 1961. The maximum sentence provided Under Section 498-A Indian
Penal Code is imprisonment for a term which may extend to three years and fine
whereas the maximum sentence provided Under Section 4 of the Dowry Prohibition Act
is two years and with fine.

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2. Petitioner happens to be the husband of Respondent No. 2 Sweta Kiran. The marriage
between them was solemnized on 1st July, 2007. His attempt to secure anticipatory bail
has failed and hence he has knocked the door of this Court by way of this Special Leave
Petition.
3. Leave granted.
4 . In sum and substance, allegation levelled by the wife against the Appellant is that
demand of Rupees eight lacs, a maruti car, an air-conditioner, television set etc. was
made by her mother-in-law and father-in-law and when this fact was brought to the
Appellant'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-fulfilment
of the demand of dowry.
5. Denying these allegations, the Appellant preferred an application for anticipatory bail
which was earlier rejected by the learned Sessions Judge and thereafter by the High
Court.
6. There is phenomenal increase in matrimonial disputes in recent years. The institution
of marriage is greatly revered in this country. Section 498-A of the Indian Penal Code
was introduced with avowed object to combat the menace of harassment to a woman at
the hands of her husband and his relatives. The fact that Section 498-A 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 shield by disgruntled wives. The simplest way to
harass is to get the husband and his relatives arrested under this provision. In a quite
number of cases, bed-ridden grand-fathers and grand-mothers of the husbands, their
sisters living abroad for decades are arrested.
"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 offence 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 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 acquittal.
7. Arrest brings humiliation, curtails freedom and cast scars forever. Law makers know
it so also the police. There is a battle between the law makers and the police and it
seems that police has not learnt its lesson; the lesson implicit and embodied in the
Code of Criminal Procedure. 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 need for caution in exercising the
drastic power of arrest has been emphasized time and again by Courts but has not
yielded desired result. Power to arrest greatly contributes to its arrogance so also the
failure of the Magistracy to check it. 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.

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8 . Law Commissions, Police Commissions and this Court in a large number of
judgments emphasized the need to maintain a balance between individual liberty and
societal order while exercising the power of arrest. Police officers make arrest as they
believe that they possess the power to do so. 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 cognizable and therefore, lawful
for the police officers to do so. The existence of the power to arrest is one thing, the
justification for the exercise of it is quite another. Apart from 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. It
would be prudent and wise for a police officer that no arrest is made without a
reasonable satisfaction reached after some investigation as to the genuineness of the
allegation. Despite this legal position, the Legislature did not find any improvement.
Numbers of arrest have not decreased. Ultimately, the Parliament had to intervene and
on the recommendation of the 177th Report of the Law Commission submitted in the
year 2001, Section 41 of the Code of Criminal Procedure (for short 'Code of Criminal
Procedure), in the present form came to be enacted. It is interesting to note that such a
recommendation was made by the Law Commission in its 152nd and 154th Report
submitted as back in the year 1994. The value of the proportionality permeates the
amendment relating to arrest. As the offence with which we are concerned in the
present appeal, provides for a maximum punishment of imprisonment which may extend
to seven years and fine, Section 41(1)(b), Code of Criminal Procedure which is relevant
for the purpose reads as follows:
41. When police may arrest without warrant.-(1) Any police officer may
without an order from a Magistrate and without a warrant, arrest any person -
(a) x x x x x x
(b) against whom a reasonable complaint has been made, or credible
information has been received, or a reasonable suspicion exists that he
has committed a cognizable offence punishable with imprisonment for a
term which may be less than seven years or which may extend to seven
years whether with or without fine, if the following conditions are
satisfied, namely:
(i) x x x x x
(ii) the police officer is satisfied that such arrest is necessary -
(a) to prevent such person from committing any further
offence; or
(b) for proper investigation of the offence; or
(c) to prevent such person from causing the evidence of the
offence to disappear or tampering with such evidence in any
manner; or
(d) to prevent such person from making any inducement,
threat or promise to any person acquainted with the facts of
the case so as to dissuade him from disclosing such facts to
the Court or to the police officer; or

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 (e) as unless such person is arrested, his presence in the Court
whenever required cannot be ensured, and the police officer
shall record while making such arrest, his reasons in writing:
Provided that a police officer shall, in all cases where the arrest
of a person is not required under the provisions of this Sub-
section, record the reasons in writing for not making the arrest.
xxxxxx
From a plain reading of the aforesaid provision, it is evident that a person accused of
offence punishable with imprisonment for a term which may be less than seven years or
which may extend to seven years with or without fine, cannot be arrested by the police
officer only on its satisfaction that such person had committed the offence punishable
as aforesaid. Police officer before arrest, in such cases has to be further satisfied that
such arrest is necessary to prevent such person from committing any further offence; or
for proper investigation of the case; or to prevent the accused from causing the
evidence of the offence to disappear; or tampering with such evidence in any manner;
or to prevent such person from making any inducement, threat or promise to a witness
so as to dissuade him from disclosing such facts to the Court or the police officer; or
unless such accused person is arrested, his presence in the court whenever required
cannot be ensured. These are the conclusions, which one may reach based on facts.
Law mandates the police officer to state the facts and record the reasons in writing
which led him to come to a conclusion covered by any of the provisions aforesaid, while
making such arrest. Law further requires the police officers to record the reasons in
writing for not making the arrest. In pith and core, the police office before arrest must
put a question to himself, why arrest? Is it really required? What purpose it will serve?
What object it will achieve? It is only after these questions are addressed and one or the
other conditions as enumerated above is satisfied, the power of arrest needs to be
exercised. In fine, before arrest first the police officers should have reason to believe on
the basis of information and material that the accused has committed the offence. Apart
from this, the police officer has to be satisfied further that the arrest is necessary for
one or the more purposes envisaged by Sub-clauses (a) to (e) of Clause (1) of Section
41 of Code of Criminal Procedure.
9. An accused arrested without warrant by the police has the constitutional right Under
Article 22(2) of the Constitution of India and Section 57, Code of Criminal Procedure to
be produced before the Magistrate without unnecessary delay and in no circumstances
beyond 24 hours excluding the time necessary for the journey. During the course of
investigation of a case, an accused can be kept in detention beyond a period of 24
hours only when it is authorised by the Magistrate in exercise of power Under Section
167 Code of Criminal Procedure. The power to authorise detention is a very solemn
function. It affects the liberty and freedom of citizens and needs to be exercised with
great care and caution. Our experience tells us that it is not exercised with the
seriousness it deserves. In many of the cases, detention is authorised in a routine,
casual and cavalier manner. Before a Magistrate authorises detention Under Section
167, Code of Criminal Procedure, 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. In other words, when an accused is produced before
the Magistrate, the police officer effecting the arrest is required to furnish to the
Magistrate, the facts, reasons and its conclusions for arrest and the Magistrate in turn is

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to be satisfied that condition precedent for arrest Under Section 41 Code of Criminal
Procedure has been satisfied and it is only thereafter that he will authorise the detention
of an accused. The Magistrate before authorising detention will record its own
satisfaction, may be in brief but the said satisfaction must reflect from its order. It shall
never be based upon the ipse dixit of the police officer, for example, in case the police
officer considers the arrest necessary to prevent such person from committing any
further offence or for proper investigation of the case or for preventing an accused from
tampering with evidence or making inducement etc., the police officer shall furnish to
the Magistrate the facts, the reasons and materials on the basis of which the police
officer had reached its conclusion. Those shall be perused by the Magistrate while
authorising the detention and only after recording its satisfaction in writing that the
Magistrate will authorise the detention of the accused. In fine, when a suspect is
arrested and produced before a Magistrate for authorising detention, the Magistrate has
to address the question whether specific reasons have been recorded for arrest and if
so, prima facie those reasons are relevant and secondly a reasonable conclusion could
at all be reached by the police officer that one or the other conditions stated above are
attracted. To this limited extent the Magistrate will make judicial scrutiny.
1 0 . Another provision i.e. Section 41A Code of Criminal Procedure aimed to avoid
unnecessary arrest or threat of arrest looming large on accused requires to be vitalised.
Section 41A as inserted by Section 6 of the Code of Criminal Procedure (Amendment)
Act, 2008 (Act 5 of 2009), which is relevant in the context reads as follows:
41A. Notice of appearance before police officer.-(1) The police officer shall, in
all cases where the arrest of a person is not required under the provisions of
Sub-section (1) of Section 41, issue a notice directing the person against whom
a reasonable complaint has been made, or credible information has been
received, or a reasonable suspicion exists that he has committed a cognizable
offence, to appear before him or at such other place as may be specified in the
notice.
(2) Where such a notice is issued to any person, it shall be the duty of that
person to comply with the terms of the notice.
(3) Where such person complies and continues to comply with the notice, he
shall not be arrested in respect of the offence referred to in the notice unless,
for reasons to be recorded, the police officer is of the opinion that he ought to
be arrested.
(4) Where such person, at any time, fails to comply with the terms of the notice
or is unwilling to identify himself, the police officer may, subject to such orders
as may have been passed by a competent Court in this behalf, arrest him for
the offence mentioned in the notice.
11. Aforesaid provision makes it clear that in all cases where the arrest of a person is
not required Under Section 41(1), Code of Criminal Procedure, the police officer is
required to issue notice directing the accused to appear before him at a specified place
and time. Law obliges such an accused to appear before the police officer and it further
mandates that if such an accused complies with the terms of notice he shall not be
arrested, unless for reasons to be recorded, the police office is of the opinion that the
arrest is necessary. At this stage also, the condition precedent for arrest as envisaged
Under Section 41 Code of Criminal Procedure has to be complied and shall be subject to
the same scrutiny by the Magistrate as aforesaid.

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1 2 . We are of the opinion that if the provisions of Section 41, Code of Criminal
Procedure which authorises the police officer to arrest an accused without an order from
a Magistrate and without a warrant are scrupulously enforced, the wrong committed by
the police officers intentionally or unwittingly would be reversed and the number of
cases which come to the Court for grant of anticipatory bail will substantially reduce.
We would like to emphasise that the practice of mechanically reproducing in the case
diary all or most of the reasons contained in Section 41 Code of Criminal Procedure for
effecting arrest be discouraged and discontinued.
13. Our endeavour in this judgment is to ensure that police officers do not arrest
accused unnecessarily and Magistrate do not authorise detention casually and
mechanically. In order to ensure what we have observed above, we give the following
direction:
(1) All the State Governments to instruct its police officers not to automatically
arrest when a case Under Section 498-A of the Indian Penal Code is registered
but to satisfy themselves about the necessity for arrest under the parameters
laid down above flowing from Section 41, Code of Criminal Procedure;
(2) All police officers be provided with a check list containing specified sub-
clauses Under Section 41(1)(b)(ii);
(3) The police officer shall forward the check list duly filed and furnish the
reasons and materials which necessitated the arrest, while
forwarding/producing the accused before the Magistrate for further detention;
(4) The Magistrate while authorising detention of the accused shall peruse the
report furnished by the police officer in terms aforesaid and only after recording
its satisfaction, the Magistrate will authorise detention;
(5) The decision not to arrest an accused, be forwarded to the Magistrate within
two weeks from the date of the institution of the case with a copy to the
Magistrate which may be extended by the Superintendent of police of the
district for the reasons to be recorded in writing;
(6) Notice of appearance in terms of Section 41A of Code of Criminal Procedure
be served on the accused within two weeks from the date of institution of the
case, which may be extended by the Superintendent of Police of the District for
the reasons to be recorded in writing;
(7) Failure to comply with the directions aforesaid shall apart from rendering
the police officers concerned liable for departmental action, they shall also be
liable to be punished for contempt of court to be instituted before High Court
having territorial jurisdiction.
(8) Authorising detention without recording reasons as aforesaid by the judicial
Magistrate concerned shall be liable for departmental action by the appropriate
High Court.
14. We hasten to add that the directions aforesaid shall not only apply to the cases
Under Section 498-A of the Indian Penal Code or Section 4 of the Dowry Prohibition Act,
the case in hand, but also such cases where offence is punishable with imprisonment
for a term which may be less than seven years or which may extend to seven years;
whether with or without fine.

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15. We direct that a copy of this judgment be forwarded to the Chief Secretaries as also
the Director Generals of Police of all the State Governments and the Union Territories
and the Registrar General of all the High Courts for onward transmission and ensuring
its compliance.
16. By order dated 31st of October, 2013, this Court had granted provisional bail to the
Appellant on certain conditions. We make this order absolute.
17. In the result, we allow this appeal, making our aforesaid order dated 31st October,
2013 absolute; with the directions aforesaid.

* Related Supreme Court Order is MANU/SC/0948/2016

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