Case Comment: Arnesh Kumar V. State of Bihar & Anr

Case Comment: Arnesh Kumar V. State of Bihar & Anr

Case Comment: Arnesh Kumar V. State of Bihar & Anr

Adv. Chinmay S. Bhosale, B.S.L. LL.M.

[Original document here: Case Comment – Arnesh Kumar V. State of Bihar & Anr.]

INTRODUCTION:

In a country like India, where over a considerable part of last few centuries, women were harassed on various grounds and ill treated by the society at large. There were, and even today are, innumerable cases of dowry, bride burning, marital abuse, etc. In an endeavour to bring about a change in this social scenario, India ratified the Convention for Elimination of all forms of Discrimination against Women (CEDAW). Thereafter, towards a more concrete effort to change the social scenario with regards to marital cruelty and harassments, the legislature inserted Sec. 498A in the Indian Penal Code. The women of the country were legally protected and armed. However, over the years, has this provision been abused? Presenting in words of thought the case of Arnesh Kumar v. State of Bihar & Anr.[1]

 

FACTS OF THE CASE:

The petitioner Arnesh Kumar was apprehending arrest in a case registered against him under Sec. 498A of Indian Penal Code (hereinafter called as IPC) and Sec. 4 of the Dowry Prohibition Act, 1961. The petitioner happened to be the husband of respondent number 2. Their marriage was solemnized on 1st of July, 2007. The anticipatory bail application of the petitioner was rejected by the Court of Session as well as the High Court. Therefore, he approached the Hon’ble Apex Court via a Special Leave Petition numbered 9127 of 2013.

DEFINING ISSUES:

On perusal of the judgment it can be seen that there are essentially two defining issues dealt in the said judgment. The first defining issue in the present judgment is the procedure for arrest specified in Sec.41 of Code of Criminal Procedure (hereinafter called as Cr.P.C.), and the blatant disregard to the same by the police machinery. The Supreme Court has issued certain directions to be followed by the police authorities and the Magistrates while making arrest/ or authorizing detention of an accused. The second defining issue, which was as good as taken up sou moto by the Apex Court, is the rising trend of misuse of Sec. 498A of IPC in India. The Apex Court came down heavily on police machinery, the magistrates as well as the litigants who file frivolous cases under Sec. 498A. The implementation of present judgment cannot be ignored and will have far reaching effects.

 

SUMMARY OF COURT’S DECISION:

The Court of Session and High Court of Patna rejected the application of the present petitioner for his release on Anticipatory Bail. Disagreeing with the said orders, the Apex Court initially granted provisional bail to the petitioner on 31st October, 2013. Thereafter, the Apex Court went on to the make the order of 31st October, 2013 absolute on 2nd July, 2014.

While granting the bail to the petitioner, the Supreme Court emphasized on the need for caution while exercising the drastic power of arrest, which has for years, been treated as a tool for harassment and oppression in the hands of the police authorities; and has greatly contributed to police corruption in India. The Supreme Court proceeded to set out certain objective criteria to be applied before making the arrest under Cr.P.C.

The Supreme Court held that no arrest should be made only because the offence is non-bailable nad cognizable. Neither should arrest be made in a routine, casual and cavalier manner or on a mere allegation of commission of an offence made against a person. Arrest should only be made after reasonable satisfaction reached after due investigation as to the genuineness of the allegation. The Supreme Court discussed Sec. 41(1) of Cr.P.C. in great detail, and emphasized that for making arrest the police must be satisfied that all the conditions set out in the provision are met. The Supreme Court also condemned the mechanical manner in which the police reproduce the reasons in every case, and the casual manner in which the magistrates grant custody. In the said judgment the Court has specifically stated that, “Our endeavour in this judgment is to ensure that police officeres do not arrest accused unnecessarily and Magistrate do not authorise detention casually and mechanically.”[2]

While concluding the judgment, the Apex Court has issued the following directions to all the State Governments:

  • To instruct the police officers not to automatically arrest the accused u/s 498A of IPC without satisfying themselves that the parameters of Sec. 41 of Cr.P.C. are met.
  • All police officers to be provided with the check-list of conditions precendent prescribed under Sec.41 of Cr.P.C. This checklist is to be duly filed and forwarded to be Magistrate while producing the accused for further detention.
  • The Magistrate shall peruse the report provided by the police officer and only after recording its satisfaction in writing may authorise detention.
  • The notice of appearance in terms of Sec. 41A of Cr.P.C. should be served on the accused within two weeks from the date of institution of the case.
  • 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.
  • Authorizing detention without recording reasons as aforesaid by the judicial magistrate concerned shall be liable for departmental action by the appropriate High Court.

Apart from dealing with the procedure for arrest, the Court in this judgment has also very strongly pointed out the blatant misuse of the Sec.498A of IPC in India. The Supreme Court also referred to National Crime Records Bureau data to show that ‘the rate of charge sheeting in cases under Sec. 498A of IPC is as high as 93.6%,while the rate of conviction is only 15% which is lowest across all heads’. In the present judgment, the Supreme Court has given ample importance to touch upon the issue of misuse of Sec.498A and harassment of in-laws over the same.

 

COMMENTS – APPRAISAL AND CRITICISM OF THE JUDGMENT:

This 21 page laudable judgment has become the cornerstone for streamlining the law of arrest in India, and also to curb the rising menace of misuse of Sec.498A of IPC. India’s law on arrest though fairly evolved, still lacked the desired clarity. The unprecedented rise in the instances of arrest coupled with high charge sheeting rate on one hand and low conviction rate on the other hand, clearly demonstrates the need to check the abuse of power of arrest. The guidelines laid down in the present ruling will be a welcome respite from the casual and mechanical approach of the authorities in making and authorizing arrests.

Morever, this judgment will have far reaching effects on business community as well or what is popularly known as ‘white collar crime’. India has witnessed over the years a rampant trend of white collar crimes, where in investors, promoters, directors and officers of companies are indicted in criminal cases . Police in India has almost set a trend of effecting immediate arrest with a view to bring the corporate on the negotiation table. From the perspective of the reluctant foreign national doing business in India, the ruling proves to be another step forward in India’s efforts of developing a fair legal environment.

Furthermore, the present judgment has rightly pointed out the menace of Sec.498A. However, this Supreme Court judgment is not the first to make such observations. Earlier the Justice Malimath Committee also recommended that Sec. 498A of IPC be made both compoundable and bailable[3]. The same has been reiterated by the Law Commission of India[4]. Even the Supreme Court in one of its judgments in 2010 stated that “by misuse of the provision, a new legal terrorism can be unleashed”[5]. Nonetheless, this judgment has hit the nail on its head.

On great perusal of the judgment and the intent behind it, I am inclined to come to a conclusion that the present judgment is essentially the torch bearer of right to reputation of every man. Arrests cause great humiliation and permanent damage to the reputation of a man. By restricting the arrests, the reputation of all the citizens is safeguarded. One of the first cases to recognize the value of an individual’s reputation was Quartz Hill Consolidated Mining Co. v. Eyre[6]. This judgment shall also be of great importance for times to come when it comes to protecting a man’s reputation from arbitrary arrests.

I am also inclined to state on an ending note, that the menace of unnecessary and malicious litigations is far and wide; and it won’t be curbed by mere guidelines. Perhaps the judiciary should take the initiative to suggest to the legislature to pass a separate bill dealing with law of malicious prosecution. It would be a penultimate step in that direction, sending ripples across the horizon of the entire legal system.

 

[1] (2014) ALL SCR. 2542.

[2] Ibid, at 17.

[3] Justice Malimath Committee, Reforms of Criminal Justice System.

[4] 243rd Law Commission of India Report, On Sec.498A of Indian Penal Code, available at http://lawcommissionofindia.nic.in/reports/report243.pdf

[5] Sushil Kumar Sharma v. Union of India, (2005) 6 SCC 281.

[6] 11 Q.R. D 674 (1883).

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