Arnesh Kumar Vs State of Bihar & Anr (2014) is the landmark judgment, let us see it in detail. In the Case of a Cognizable and non-bailable case, the Police have the power to arrest any accused without a warrant. However, it came to the SC’s notice that his power is blatantly misused by the police, and the rights of the accused are ignored.
In the case of Arnesh Kumar Vs State of Bihar, hand pertains to Section 498A and 4 of the Dowry Prohibition Act, 1961, mandatory guidelines were laid by the SC in case of all the offences punishable up to 7 years imprisonment. The directions are for the Police as well as Magistrate and are mandatory.
Factual Matrix in Arnesh Kumar Vs State of Bihar- Briefly stated the case of the prosecution is that a wife made a complaint that her Father-in-Law and Mother-in-Law asks her to bring dowry in the form of a Maruti Car, 8 lakh rupees, TV, etc. When this was told to her husband he also sided with his parents and even threatened his wife that he will marry someone else.
Apprehending arrest of the appellant’s bail but the same application for anticipatory bail but the same was rejected by both the High Court and the Supreme Court. Hence, this appeal where the offence punishable under Section 498A of IPC is punishable with up to 3 years of imprisonment and Section 4 of Dowry Prohibition Act, with up to 2 years of imprisonment.
Observation in Arnesh Kumar Vs State of Bihar-
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 allegations. The existence of the power to arrest is one thing, the jurisdiction for the exercise of it is quite another.
No arrest should be made only because the offence is cognizable and non-bailable and therefore lawful for the police to do so. The existence of the power to arrest is one thing, the justification for the exercise of it is quite another. It would be prudent and wise for a police officer that no arrest is made without a reasonable satisfaction as to the genuineness of the allegations. The provisions of Section 41 are to be scrupulously enforced.
(1) Any police officer may without an order from a Magistrate and without a warrant, arrest any person
1 (a) who commits, in the presence of a police officer, a cognizable offence;
(b) against whom a reasonable complaint has been made, 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) the police officer has reason to believe on the basis of such complaint, information, or suspicion that such person has committed the said offence;
(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
(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:
2 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.
Section 154 of CRPC–Every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read Over to the informant;
[41A. Notice of appearance before a police officer.– (1) 2[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.
3[(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.]
Directions of the Court given in Arnesh Kumar Vs State of Bihar-
1. All the State governments instruct the police to comply with Section 41 CRPC, and not arrest unnecessarily.
2. All the Police Officers be provided with the checklist containing such clauses of Section 41.
3. All the Police Officers shall forward the checklist duly filled while forwarding or producing the accused before the Magistrate for further detention.
4. The Magistrate while authorizing the detention of the accused shall peruse the report forwarding by Police, and only after recording his satisfaction shall so authorize detention.
5. The decision not to arrest an accused, be forwarded to the Magistrate within 2 weeks from the date of institution of the case.
6. Notice of appearance in terms of section 41A CrPc is served within 2 weeks from the date of the institution of the Case.
Failure To Comply The Direction given in Arnesh Kumar Vs State of Bihar-
In the case of Police Officer- 1. Shall be liable for departmental action. 2. Contempt of Court before the High Court.
In case of Magistrate- Authorising detention without recording reason shall be liable for departmental proceedings.
Difference Between D.K Basu Vs State of West Bengal & Arnesh Kumar Vs State of Bihar.
D.K Basu Vs State of West Bengal-The case pertains to the rights of the arrested person i.e. Once a person is arrested his family or friend be informed, he should be allowed to consult a lawyer etc. Applicable on all offences irrespective of punishment.
Arnesh Kumar Vs State of Bihar-This case talks about a situation when can a person be arrested in cases which are punishable with up to 7 years imprisonment. The guidelines are applicable only in case of offences punishable with up to 7 years of imprisonment.
1. These directions are not limited to 498A of IPC but to all offences punishable up to 7 years of imprisonment.
2. To defeat the purpose of this act now the Lawyers and Police also in some of the cases put Section 377 or 376 against the brother in law.
3. Remand is sought sometimes on the flimsy ground of recovery even where the same could have been recovered after the arrest and before the production before Magistrate.
4. The Police should instead of tick mark give reasons for the same.
5. There should be special training for Police Officers to comply with this provision and understand the reason for the same.