Citation: 2021 SCC Online All 83

Brief facts of the case
Marriage was fixed between the petitioner 1 and respondent 4's daughter. It was alleged by respondents that Rs. 6.5 lacs were given to the petitioner 1 and there was a further allegation made that Creta car was demanded by petitioners and if that was not fulfilled, petitioner 1 threatened to not solemnize the marriage. A complaint was made against the petitioners U/s 498-A of Indian Penal Code by the respondents and petitioners approached the High Court for quashing of FIR and protection from arrest as prayers via issuance of writ order by the Hon'ble High Court.

Issue
Whether police can proceed with straight forwardly arresting of the accused after complaint against them is made under Section 498-A of IPC?

Rules
Section 41(1) of CrPC deals with the situations where police can arrest any person without getting warrant or order from the magistrate. It entails within itself a sub-clause(b) which talks about some ingredients which need to be satisfied if police has to proceed with arrest of accused without warrant or order from magistrate, when a reasonable complaint or suspicion exists or credible information is received as to committing of a cognizable offence punishable upto 7 years or less by the said accused.

The ingredients entailed in Section 41(1)(b) include belief of police officer that accused has committed the said offence on basis of complaint, information or suspicion received, in addition to being satisfied that arrest is necessary for prevention of further offence that can be committed by him, or for proper investigation, or for preventing tampering or disapperaing of evidence, or preventing inducement, threat to facts acquainted persons by the accused in order to prevent them from informing the same facts to police authorities or judicial officers, or when presence before the court can't be ensured without making arrest. The reasons must have to be recorded in writing if arrest is required.

Section 41A of CrPC talks about that when arrest was not required after following the provisions of Section 41(1), notice has to be served to that person to appear before the police officer in charge and further entails that if the accused complies with the terms of notice then there is no need to arrest him. But, if he fails to do so or the police officer opines after recording of reasons that arrest is necessary, he can be arrested.

Analysis
The contentions of counsel for petitioners were that after ring ceremony took place between petitioner no.1 and respondent no. 4's daughter, it were the respondents who demanded money for solemnizing the marriage and threatened to file false criminal cases if that demand was not fulfilled. And that the current complaint made was only a consequence of that non-fullfillment of demand. Further, it was submitted that Sections under which case had been registered were all punishable with less than 7 years and in absence of any credible evidence and without issuing of notice, the petitioners cannot be arrested as per Section 41A, Section 41(1)(b) and Section 41(1)(b)(ii)(e) of CrPC etc.

The court opined that Section 41A and Section 41(1)(b) of CrPC were the only relevant sections to be applied as per the factual matrix of the case.

Court primarily relied upon the extracted relevant paragraphs of the judgement of the Apex Court in case of Manav Adhikar v. Union of India, Ministry of Law and Justice1. In that case directions were issued and were as follows:
Magistrates/Police authorities were directed that when a person accused of committing any cognizable offence punishable upto 7 years is produced before them for grant of remand, it is duty of Magistrate to ensure that remand is sought in a bonafide manner and that reasons provided for the same in case diary are in accordance with requirements of Section 41(1)(b) and 41A of CrPC.

In addition, it was directed that when accused has surrendered, or investigation stage is over and it is time to take accused into the judicial custody, bail applications should be dealt with expeditiously and not refused on the face of it until and unless allegations are of grave nature or there is any other obstacle of legal nature in granting the bail.

Magistrates were further granted free hand to send information to Registrar of High Courts regarding any police officer who in malafide manner is persistently arresting persons accused of committing cognizable offences punishable upto 7 years in contravention of requirements of Section 41A and Section 41(1)(b). DGP may be directed by the registrar to take action against the concerned police officer after that.

Session District Judges were also asked to direct Magistrates not to grant remands in absence of conditions to be fullfilled of abovementioned sections or remand when sought with malafide intent in absence of concrete material on record.

Court also observed the relevant para. in the above case where Supreme Court was pained to see the regularly filed petitions by way of writ where arrest was made when there is a mechanism already in place which was incorporated by means of Section 41A, depicting clearly that accused should not be arrested when custody of accused is not required in case of less heinous crimes punishable upto 7 years.

Court in order to ensure the observations made above, gave following directions:
It asked State govt. to instruct police officers not to arrest accused straight away when complaint under Section 498-A of IPC is made and asked to instruct officers to satisfy requisites of arrest reflected from Section 41A of CrPC.

It also asked them to give police officers a checklist containing all the clauses mentioned underneath Section 41(1)(b)(ii) and when the accused is produced before the magistrate for the detention, this list should be duly filled along with furnishing of reasons and materials necessary for making arrest. Magistrate then shall grant permit for the same only after being satisified with the list and reasons given.

That notice of appearance as per Section 41A can be given within 2 weeks from the date on which case was instituted and can be further be extended by S.P. of the concerned district post recording of reasons for the same in writing.

Court instructed police authorities that the above directions are not only applicable to the present dowry case but for all the pending investigations as well as the future investigations to follow.

Court along with the Manav Adhikar Case 2 also brought attention of police authorities to similar cases such as Arnesh Kumar v. State of Bihar 3 where they were directed to balance individual liberty of an individual with the social order. They were asked to follow the similar kind of guidelines given in that landmark judgement.

It was laid down that exercise of power of police officers to arrest and granting of detention by magistrate should not be done arbitrarily and casually. Similar guidelines were given like that which have been given in current case like giving list to police officers containing clauses of Section 41(1)(b)(ii) which has to be duly filled by them along with furnishing of futher reasons to be forwarded to magistrate for permission of detention of the accused was made compulsory.

That case further provided for consequences such as departmental action as well as contempt of court to be instituted by High Court having the jurisdiction against the police officers not complying with the order therein given. It went to the extent of allowing departmental action against the judicial magistrate also who will continue to authorise detention without recording of reasons. Those directions in that case were made applicable not only to cases of dowry but all the offences punishable upto 7 years cognizable in nature, whether with or without the fine.

Court also praised the efforts of the counsel for Petitioners and asked that the copy of the current order shall be passed from Registrar General to the Law Secretary who in furtherance will ensure the communication of these directions to all the police station officers.

In my opinion the directions given in this case were merely subpart of what were given in Arnesh Kumar case and if relevant Sections mentioned of CrPC above are strictly adhered to by the Police officers and Magistrates in addition to the directions issued in Arnesh Kumar case, the cases of anticipatory bail arriving before the court will reduce substantially which will in turn reduce the unnecessary burden on the judicial system.

Conclusion
It was laid down that discretion of police officers to arrest an accused when a complaint has been made under Section 498A of IPC is not absoulte and should not be arbitrarily carried out instantly just after the case has been registered. Rather, checklist is to be filled of clauses mentioned in Section 41(1)(b)(ii) of CrPC along with recording of reasons and material to be sent before magistrate which necessitate the arrest. After due satisfaction only, detention shall be authorised by Magistrate.

When custody is not required and arrest is not required, accused can be asked to appear before the officers by serving a notice to him as per Section 41A of CrPC and if he complies with the same, no need of arrest is there, and can only be arrested if he fails to comply with terms of notice or post recording of reasons, the police officer opines that arrest is necessary.

End-Notes:

1. Social Action Forum for Manav Adhikar v. Union of India, Writ Petition (Civil) No. 73 of 2015 with Criminal Appeal No. 1265 of 2017 Writ Petition (Criminal) No. 156 of 2017.
2. Supra note 1.
3. Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273.