Protection From Arrest In 498a Case

Offence under section 498A IPC is cognizable, non-compoundable and non-bailable meaning thereby the Police is duty-bound to register an FIR against the persons involved in the offence on receiving of a complaint from an aggrieved woman or her family members. Since offence of 498a IPC is cognizable and is non-bailable, the police is empowered to arrest the person involved in the case, and the only remedy left to the person involved to approach the competent court for anticipatory bail under Section 438 Cr. P.C. So after registration of an FIR in 498a case, the first requirement is to secure an anticipatory bail for all the persons who are named in the FIR

Application for anticipatory bail is filed under section 438 of Cr.P.C. It can be filed before the Session Court or High Court but it is always good to file anticipatory bail before the Session Court first and if Session Court declined to grant anticipatory bail then application should be filed before the High Court. Filing anticipatory bail application directly in the High court is not appropriate as the High court generally do not entertain the application and directing the petitioner to approach first the Session Court. The Session Court can also grant a pre-arrest notice of 7 days, 5days as the case may be, before the registration of FIR and also after registration of FIR  if situation so warrants. Meaning thereby before taking any coercive action, the police Officer / I.O will serve a notice in writing in advance and after receiving of such notice, person can approach the court for anticipatory bail again and in this way sudden arrest could be avoided.                      

JUDGEMENTS OF THE SUPREME COURT WHICH HAS REGULATED ILLEGAL ARREST IN 498A CASE:-

GUIDELINES ISSUED BY THE SUPREME COURT IN THE CASE OF “ARNESH KUMAR V. STATE OF BIHAR AND ANOTHER (2014) 8 SCC 273”

The Supreme Court in the case of Arnesh Kumar v. State of Bihar and Anr. has observed that the offence under section 498A IPC is cognizable and non-bailable 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. The Court has taken note of the statistics under “Crime in India 2012 Statistics” published by the National Crime Records Bureau, Ministry of Home Affairs which shows arrest of 1,97,762 persons all over India during the year 2012 for the offence under Section 498-A. Showing concern, the Court held that arrest brings humiliation, curtails freedom, and casts scars forever and the police had not learned its lesson which is implicit and embodied in the Criminal Procedure Code. Commenting on the police, the Court said:- “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 the courts but has not yielded the 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 for the police officers who lack sensitivity or act with oblique motive.” 

The Court, thereafter, has distinguished between the power to arrest and justification for the exercise of it and analyzed Section 41 CrPC.

Section 41 stipulates when police may arrest without a warrant. The said provision 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) who commits, in the presence of a police officer, a cognizable offence; (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) 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 19 (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. 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. (ba) against whom credible information has been received that he has committed a cognizable offence punishable with imprisonment for a term which may extend to more than seven years whether with or without fine or with a death sentence and the police officer has reason to believe on the basis of the information that such person has committed the said offence. (c) who has been proclaimed as an offender either under this Code or by order of the State Government; or (d) in whose possession anything is found which may reasonably be suspected to be stolen property and who may reasonably be suspected of having committed an offence with reference to such thing; or (e) who obstructs a police officer while in the execution of his duty, or who has escaped, or attempts to escape, from lawful custody; or (f) who is reasonable suspected of being a deserter from any of the Armed Forces of the Union; or (g) who has been concerned in, or against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists, of his having been concerned in, any act committed at any place out of India which, if committed in India, would have been punishable as an offence, and for which he is, under any law relating to extradition, or otherwise, liable to be apprehended or detained in custody in India; or (h) who, being a released convict, commits a breach of any rule made under sub-section (5) of section 356; or (i) for whose arrest any requisition, whether written or oral, has been received from another police officer, provided that the requisition specifies the person to be arrested and the offence or other cause for which the arrest is to be made and it appears there from that the person might lawfully be arrested without a warrant by the officer who issued the requisition. (2) Subject to the provisions of section 42, no person concerned in a non-cognizable offence or against whom a complaint has been made or credible information has been received or a reasonable suspicion exists of his having so concerned, shall be arrested except under a warrant or order of a Magistrate.”. Scrutinizing the said provision, the Court held as under:-

 “7.1. From a plain reading of the aforesaid provision, it is evident that a person accused of an 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 his satisfaction that such person had committed the offence punishable as aforesaid. A police officer before the 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 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. In pith and core, the police officer 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 based on 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 CrPC.” The learned Judges, thereafter, referred to Section 41-A CrPC which has been inserted by Section 6 of the Code of Criminal Procedure (Amendment) Act, 2008 (5 of 2009). The said provision is to the following effect:-

 “41-A. Notice of appearance before a 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 believes 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.” Explaining the said provision, it has been ruled:- “The aforesaid provision makes it clear that in all cases where the arrest of a person is not required under Section 41(1) CrPC, 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 officer believes that the arrest is necessary. At this stage also, the condition precedent for arrest as envisaged under Section 41 CrPC has to have complied and shall be subject to the same scrutiny by the Magistrate as aforesaid.” The Court further went on to say:- “10. We are of the opinion that if the provisions of Section 41 CrPC which authorizes 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 emphasize that the practice of mechanically reproducing in the case diary all or most of the reasons contained in Section 41 CrPC for effecting arrest be discouraged and discontinued.” The directions issued in the said case are worthy to note:-

“ Our Endeavour in this judgment is to ensure that police officers do not arrest the accused unnecessarily and Magistrate does not authorize detention casually and mechanically. In order to ensure what we have observed above, we give the following directions:

11.1. All the State Governments to instruct its police officers not to automatically arrest when a case under Section 498-A IPC is registered but to satisfy themselves about the necessity for arrest under the parameters laid down above flowing from Section 41 CrPC; 11.2. All police officers are provided with a checklist containing specified sub-clauses under Section 41(1)(b)(ii); 11.3. 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; 11.4. The Magistrate while authorizing 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 authorize detention; 11.5. 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; 11.6. Notice of appearance in terms of Section 41-A CrPC 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; 11.7. Failure to comply with the directions aforesaid shall apart from rendering the police officers concerned liable for departmental action, shall also be liable to be punished for contempt of court to be instituted before the High Court having territorial jurisdiction. 11.8. Authorizing detention without recording reasons as aforesaid by the Judicial Magistrate concerned shall be liable for departmental action by the appropriate High Court.”

GUIDELINES ISSUED BY THE SUPREME COURT IN THE CASE OF “RAJESH SHARMA AND ORS V. STATE OF U.P. AND ANR. AIR 2017 SC 3869: 2017 (8) SCALE 313”:

The Supreme Court in the case of Rajesh Sharma (supra) issued the following guidelines to prevent misuse of sec. 498A IPC:-

 i) (a) In every district one or more Family Welfare Committees be constituted by the District Legal Services Authorities preferably comprising of three members. The constitution and working of such committees may be reviewed from time to time and at least once a year by the District and Sessions Judge of the district who is also the Chairman of the District Legal Services Authority.

(b) The Committees may be constituted out of para legal volunteers/social workers/retired persons/ wives of working officers/other citizens who may be found suitable and willing.

(c) The Committee members will not be called as witnesses.

 (d) Every complaint under Section 498A received by the police or the Magistrate be referred to and looked into by such committee. Such committee may have interaction with the parties personally or by means of telephone or any other mode of communication including electronic communication.

 (e) Report of such committee is given to the Authority by whom the complaint is referred to it latest within one month from the date of receipt of the complaint.

(f) The committee may give its brief report about the factual aspects and its opinion on the matter.

(g) Till the report of the committee is received, no arrest should normally be effected.

 (h) The report may be then considered by the Investigating Officer or the Magistrate on its own merit.

(i) Members of the committee may be given such basic minimum training as may be considered necessary by the Legal Services Authority from time to time.

 (j) The Members of the committee may be given such honorarium as may be considered viable.

(k) It will be open to the District and Sessions Judge to utilize the cost fund wherever considered necessary and proper. ii) Complaints under Section 498A and other connected offences may be investigated only by a designated Investigating Officer of the area. Such designations may be made within one month from today. Such designated officers may be required to undergo training for such duration (not less than one week) as may be considered appropriate. The training may be completed within four months from today; iii) In cases where a settlement is reached, it will be open to the District and Sessions Judge or any other senior Judicial Officer nominated by him in the district to dispose of the proceedings including closing of the criminal case if dispute primarily relates to matrimonial discord. iv) If a bail application is filed with at least one clear day’s notice to the Public Prosecutor/complainant, the same may be decided as far as possible on the same day. Recovery of disputed dowry items may not by itself be a ground for denial of bail if maintenance or other rights of wife/minor children can otherwise be protected. Needless to say that in dealing with bail matters, individual roles, prima facie truth of the allegations, the requirement of further arrest/ custody and interest of justice must be carefully weighed; v) In respect of persons ordinarily residing out of India impounding of passports or issuance of Red Corner Notice should not be a routine; vi) It will be open to the District Judge or a designated senior judicial officer nominated by the District Judge to club all connected cases between the parties arising out of matrimonial disputes so that a holistic view is taken by the Court to whom all such cases are entrusted, and vii) Personal appearance of all family members and particularly outstation members may not be required and the trial court ought to grant exemption from personal appearance or permit the appearance by video conferencing without adversely affecting the progress of the trial. viii) These directions will not apply to the offences involving tangible physical injuries or death.

DIRECTION OF THE SUPREME COURT IN THE CASE OF “SOCIAL ACTION FORUM FOR MANAV ADHIKAR AND ANOTHER VS UNION OF INDIA MINISTRY OF LAW AND JUSTICE AND OTHERS W.P(C) NO.73 OF 2015”:-

After the Guidelines issued by the Supreme Court in the case of “Rajesh Sharma and Ors V. State of U.P. and Anr. AIR 2017 SC 3869 ” a writ petition has been filed by Social Action Forum for Manav Adhikar and another Vs Union of India Ministry of Law and Justice and others W.P(C) NO.73 of 2015” and finally the Supreme Court passed the judgment thereby certain directions issued in the case of Rajesh Sharma and Ors V. State of U.P. and Anr. AIR 2017 SC 3869: 2017 (8) SCALE 313” has been overruled. The operating part of the judgments is as under:-

“In the aforesaid analysis, while declaring the directions pertaining to Family Welfare Committee and its constitution by the District Legal Services Authority and the power conferred on the Committee is impermissible. Therefore, we think it appropriate to direct that the investigating officers be careful and be guided by the principles stated in Joginder Kumar (supra), D.K. Basu (supra), Lalita Kumari (supra), and Arnesh Kumar (supra). It will also be appropriate to direct the Director-General of Police of each State to ensure that investigating officers who are in charge of the investigation of cases of offences under Section 498-A IPC should be imparted rigorous training concerning the principles stated by this Court relating to arrest. Given the aforesaid premises, the direction contained in paragraph 19(i) as a whole is not in accord with the statutory framework and the direction issued in paragraph 19(ii) shall be read in conjunction with the direction given hereinabove. . Direction No. 19(iii) is modified to the extent that if a settlement is arrived at, the parties can approach the High Court under Section 482 of the Code of Criminal Procedure and the High Court, keeping in view the law laid down in Gian Singh (supra), shall dispose of the same. As far as direction Nos. 19(iv), 19(v) and 19(vi) and 19(vii) are concerned, they shall be governed by what we have stated in paragraph 35. 35 42. With the aforesaid modifications in the directions issued in Rajesh Sharma (supra), the writ petitions and criminal appeal stand disposed of.

Now we can say that with the kind interventions of the Hon’ble Supreme Court, the misuse of section 498A IPC has been stopped to some extent and also prohibited illegal arrest in the cases related to 498A IPC and false Dowry demand case.