Judgments

ARNESH KUMAR Vs. STATE OF BIHAR : CASE SUMMARY

The Supreme Court in Arnesh Kumar Vs State of Bihar (2014) 8 SCR 128  held that before arresting   a person accused of offence punishable with imprisonment for term which may extent to seven years, police officer has to be 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 so as 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 in the court whenever required cannot be ensured.

FACTS OF THE CASE

The marriage of Appellant/husband and Respondent/wife was solemnized on 1st July, 2007. Allegations levelled by the Respondent/wife against the Appellant/husband was that demand of Rupees eight lacs, a Maruti Car, an air conditioner, television set was made by in-laws and was supported by the husband. She was thrown out of the matrimonial home for non-fulfilment of dowry. Complaint was filed against the husbands. The appellant/husband apprehended his arrest under Section 498A CrPC and Section 4 of Dowry Prohibition Act. He filed application for anticipatory bail, which was rejected. Finally, he approached Hon’ble Supreme Court for anticipatory bail application.

FINDINGS OF THE SUPREME COURT

The Supreme Court observed that police officers make arrest as they believe that they possess the power to do so. As the arrest curtails freedom, brings humiliation and casts scars forever, we feel differently. We believe that no arrest should be made only because the offence is non-bailable and cognizable and therefore, lawful for the police officers to do so. The existence of power to arrest is one thing, the justification for exercise of it is quite another. Apart from power to arrest, the police officers must be able to justify the reasons thereof. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. 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 allegation.

The Supreme Court observed that from a plain reading of Section 41 CrPC, it is evident that a person accused of 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 its satisfaction that such person had committed the offence punishable as aforesaid. Police officer, 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 so as 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.

The Supreme Court noted that an arrested person has to be produced within 24 hours before Magistrate   and such arrested person can be further detained only on direction by the Magistrate in exercise of power under Section 167 Cr.P.C. The Power to authorize detention is very solemn function. Before a Magistrate authorizes detention under Section 167 CrPC, he has to be first satisfied that the arrest made is legal and in accordance with law and all the constitutional rights of the person arrested is satisfied. If the arrest effected by the police officer does not satisfy the requirements of Section 41 of the Code, Magistrate is duty bound not to authorize his further detention and release the accused. In other words, when the accused is produced before the Magistrate, the police officer effecting the arrest is required to furnish to the Magistrate, the facts, reasons and its conclusions for arrest and the Magistrate in turn is to be satisfied that condition precedent for arrest under Section 41 CrPC has been satisfied and it is only thereafter that he will authorize the detention of the accused. The Magistrate before authorizing detention will record its  satisfaction, may be in brief but the said satisfaction must reflect from its order. It shall never be based upon the ipse dixit of the police officer. For example, in case the police officer considers the arrest necessary to prevent such person from committing any further offence or for proper investigation of the case or for preventing an accused form tampering with evidence or making inducement etc. the police officer shall furnish to the Magistrate the facts, reasons and materials on the basis of which the police officer had reached its conclusion. Those shall be perused by the Magistrate while authorizing the detention and only after recording its satisfaction in writing that the Magistrate will authorize the detention of the accused. In fine, when a suspect is arrested and produced before a Magistrate for authorizing detention, the Magistrate has to address the question whether specific reasons have been recorded for arrest and if so, prima facie those reasons are relevant and secondly a reasonable conclusion could at all be reached by the police officer that one or the other conditions stated above are attracted. To this limited extent the Magistrate will make judicial scrutiny.

The Supreme Court noted that Section 41A CrPC provides that where the arrest of a person is not required under Section 41 (1) Cr.PC 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 is of the opinion that the arrest is necessary. At this stage also, the condition precedent for arrest as envisaged under Section 41 Cr.PC has to be complied and shall be subject to the same scrutiny by the Magistrate as aforesaid.

The Supreme Court issued several directions including   (i)  not to arrest automatically under Section 498A, (ii) Police officers to be provided checklist containing clauses under Section 41 (1) (b) (iii) Police to forward filled checklist to the Magistrate (iv) Notice under Section 41 A CrPC to be served on the accused within two weeks.

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Mukesh Kumar Suman is an advocate and legal author based at Delhi. He regularly appears before various Judicial Forums including NCLT, NCLAT, High Courts and the Supreme Court. He can be approached at mukesh_suman@outlook.com or +91 9717864570.

Mukesh Kumar Suman

Mukesh Kumar Suman

Mukesh Kumar Suman is an advocate based at Delhi. He has rich experience in civil, criminal, commercial, arbitration and corporate insolvency matters. He regularly appears before District Courts, NCLT, NCLAT, High Court and the Supreme Court. He can be approached at mukesh_suman@outlook.com or +91 9717864570.

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