JUDGEMENT ANALYSIS : ARNESH KUMAR V/S STATE OF BIHAR
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1227 of 2014
(@ Special Leave Petition Cr. No. 9127 of 2013)
ARNESH KUMAR. ……APPELLATE
Versus
STATE OF BIHAR & ANR. ……RESPONDENTS
Chandramauli Kumar Prasad the petitioner apprehends his arrest in a case registered under 498A of IPC 1860 and section 4 of The Dowry Prohibition Act 1961. Petitioner happens to be the husband of one of the respondents Sweta Kiran. His attempt to secure anticipatory bail has failed and hence he has approached the Supreme Court by way of SLP.
INTRODUCTION
Dowry system was started in ancient times as a gift to the bride during marriage generally called as Streedhan (money, property, jewellery etc. for betterment of bride) but nowadays, parents of bride are burdened to give more money and even properties as dowry and if the demands are not fulfilled, the marriage is abruptly axed or the bride is tormented after the marriage. In Asia, especially in India it is widely practised. Therefore, the Indian Government has enacted many legislations such as The Dowry Prohibition Act 1961 which prohibits the dowry system. However, every coin has two sides. The laws and legislations which prove to be propitious to the women are on the other hand squandered by them. The present case put forward the same issue. In this case, the petitioner’s wife alleged that his parents demanded dowry and the petitioner was arrested. The petitioner denied all the claims. In the above case of ARNESH KUMAR V. STATE OF BIHAR 2014 the Hon’ble Supreme Court (SC) laid some guidelines in reference to section 498A of Indian Penal Code 1860 (IPC) which was inserted in the year 1983 along with section 304B of IPC on dowry deaths to control the violence against married women by their husband’s and in-law’s. But soon in 2010 the SC asked the government to amend dowry law to stop its misuse as there was a sudden rise in 498A cases (reference “PREETI GUPTA AND ANOTHER V. STATE OF JHARKHAND). A committee was also set up in this regard headed by the Governor Bhagat Singh Koshiyari. In this landmark judgement SC stated that there should be no casual arrest in cases where the punishment is up to 7 years of imprisonment with or without fine, and also asked the police to determine whether an arrest is necessary under the provision of section 41 of the Code of Criminal Procedure 1973.
FACTS IN BRIEF :
Some relevant facts of the above case were-
- A marriage was solemnised on 1st July 2007
- Soon the wife levied allegations against her husband and in-laws, that they demanded eight lac rupees, a maruti car, an air conditioner, television set etc as dowry
- Also, she was driven out of the matrimonial home by her in-laws and husband threatened to marry another woman if the demands are not fulfilled
- A fir was lodged by the wife under section 498A IPC and section 4 of Dowry Prohibition Act 1961, the maximum sentenced provided under section 498A IPC is imprisonment for a term which may extend to three years and fine whereas the maximum sentence provided under section 4 of Dowry Prohibition Act is two years and fine
- The husband apprehends his arrest and filed for an anticipatory bail which was rejected by learned session court thereafter by the High court
- Hence husband approached the SC by way of Special Leave Petition ( SLP-any aggrieved party can approach the SC under article 136 of the Indian constitution by filing a SLP in case any substantial question of law is involved or the question involves public importance or a gross injustice has been done)
- Taking cognizance of Criminal Appeal no. 1227 of 2014 ( SLP crl. no. 9127 of 2013 ) appellant husband ARNESH KUMAR versus respondent STATE OF BIHAR AND ANR. The SC interpreted the section 498A of IPC, section 41 & 41A of CrPc and granted provisional bail to the accused husband.
LEGAL ISSUES OF THE CASE:
The following legal issues were raised before the court-
- Granting of anticipatory bail to accused
- Accused rights against arrest procedure
- Reference of statutes section 498A of IPC 1860, section 4 of The Dowry Prohibition Act 1961, section 41, 41A, 57, 167 and 438 of Cr.PC 1973 and Article 22(2) of Indian Constitution.
OBSERVATIONS AND DECISION OF THE HON’BLE SUPREME COURT:
The court showed its major concern on the casual arrest of accused husband and in-laws in dowry related cases. The Apex court observed that, in recent years there has been a phenomenal rise in such cases, marriage is a sacred ritual in India not a contract but women are using section 498A as a weapon to harass their husband and in-laws, even grand in-laws and relatives in some cases only because section 498A is a cognizable and non-bailable offence. Such cases account for 4.5% of total crimes committed under different sections of penal code, more than any other crimes except theft and hurt. The rate of charge-sheeting in cases under Section 498A, IPC is as high as 93.6%, while the conviction rate is only 15%, which is lowest across all heads. There is a battle between the law makers and the police, and it seems that police have not learnt their lesson. The Supreme Court in this landmark judgement not only granted provisional bail to the petitioner (accused husband) on certain grounds but also explored and touched on issues that had not been addressed before, such as the abuse of section 498A. The Supreme Court also framed the guidelines in response to the SLP filed by petitioner (accused husband) regarding the arrest of accused without any evidence due to non-bailable and cognizable nature of law. The court also reviewed the enforcement of section 41(1)(A) of Cr.P.C. and prohibited the police from making arrests merely on the basis of a complaint regarding an offence punishable by imprisonment less than 7 years or may extend to 7 years of imprisonment with or without fine. The court asked the police to follow section 41 of Cr.P.C. 1973 which provides a 9-point checklist which must be used to decide the need for an arrest. The court also said that a magistrate must decide whether an arrested accused needs to be kept under further detention.
GUIDELINES LAID DOWN BY THE SUPREME COURT FOR ARREST:
After discussing the provisions related to safeguard against arrest of an accused, the court laid down the guidelines to be followed in arrest procedure not only applicable to provisions of section 498A of IPC 1860 or section 4 of The Dowry Prohibition Act 1961 but also to other offences where imprisonment is less than 7 years or may extend up to 7 years of imprisonment with or without fine are as follows –
- No police officer should arrest under section 498A of IPC 1860 merely on the basis of a complaint
- Police should collect enough for the necessary arrest under sections where imprisonment is up to 7 years of imprisonment with or without fine
- Police should checklist all the clauses under section 41(1)(b) of Cr.PC 1973
- The magistrates while authorising detention of an accused shall not only depend on police report but on their own satisfaction
- The notice to be present before the court of law under section 41A of Cr.PC 1973 should be given within two weeks from the date of filing of case, which may be extended by the Superintendent of Police of concerned district for the reasons to be recorded in writing
Failure to comply with above directions the Police officer shall be liable for departmental action and contempt of court before the High Court with its territorial jurisdiction and in case of Magistrate authorising detention without recording reasonable reason shall be liable for departmental proceedings.
CRITICAL ANALYSIS OF THE JUDGEMENT:
The precious gift one can have is freedom and liberty, which we achieved after a battle of almost 100 years. The same is defined in the Indian Constitution under Article 21, but it has been greatly exploited by the police, especially against the underprivileged section of the society. A widely discussed and contentious issue has been the constant abuse of personal liberty and constitutional rights by the government through their own retained rights for the apparent ‘protection of the public’. Media and court records display instances of such abuse by the police force. This landmark judgement was welcomed as it holds the constitutionality of article 22(2) with right to freedom and liberty. One of the major advantages of this judgement is preventing overcrowding of prisons especially in case of pandemics like Covid-19. The guidelines laid down in this case shifts the burden of being lawful and stops corrupt practices of police misusing section 41 of Cr.P.C. The above guidelines not only prevent unnecessary and casual arrests but also gives accused a chance of being heard and fair trial because cases like 498A of IPC are generally exaggerated versions of actual incidents. This case is a ray of light as it highlighted the malicious police practices and casual arrests merely on the basis of a complaint of an offence which is cognizable.
But, like every coin has two sides, the same goes with this judgement, on one hand this judgement was welcomed and on another hand this judgement received criticism from the feminists because it weakened the negotiating power of women. This judgement can prove to be a milestone in restoring public faith in law but more than that we need strict and efficient implementation of laws.
CONCLUSION
The above judgement can be seen as a reality check how the law in our country is misused and the role of police in the same. A law must be public friendly rather than being used as a tool for harassment and oppression. Absolute abuse of power by the police and judiciary’s incompetency to deal with them. The Court also highlighted the issue of unnecessary arrest by laying down some guidelines to protect the accused rights as the Court itself stated ” Arrest brings humiliation, curtails freedom and casts scars forever”.
Thus, we as common people can only hope the redressal of the SUPREME COURT against such laws and enforcement brings some changes in the future.
This article has been written by Chirag Godhar. Chirag is a legal associate working in Delhi and can be reached at 7417407484 for feeback relating to the article.
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