In India illegal arrests by police have remained grave cause of concern. There were times, when people making enquiries with police or joining police investigation were taken in by police and kept in detention of flimsy grounds. No official records used to be made for such arrests so, one could not even find out if and how many persons are under detention at a particular Police Station. In one such case of illegal detention, in Joginder Kumar vs State of UP, SC laid down, way back in 1994, various guidelines to be followed when making any arrests.Some excerpts below (all emphases mine):
Due to feminist pressure etc. offences under the laws like IPC 498-A and Dowry Prohibition Act etc. got labelled as heinous crimes, by somehow giving examples of and equating to Dowry Death (IPC 304-B). So, even though the above SC judgment did brought some relief in terms of finding whereabouts of a detainee etc., but illegal arrests continued to a great extent.
Now, coming specifically to 498A, Supreme Court (and various other lower and high courts) has time and again expressed concern over its gross misuse.
In Sushil Kumar Sharma vs Union Of India (2005) SC observed as follows:-
In Som Mittal vs. Government of Karnataka (2008), SC observed the following regarding Section 498A:-
In Preeti Gupta vs. State of Jharkhand (2010) SC observed that :-
In Shaukin Vs State of U.P. (2011) Hon'ble Allahabad HC gave specific directions to strictly follow CrPC 41 Amendments
And here come a landmark judgment from SC, Arnesh Kumar vs State of Bihar (Jul 2014) that mandates accountability in arrests on the police in keeping up with the spirit of CrPC 41 amendments.
Now, why such a judgment that proposes to uphold law of the land in spirit and human rights is being lambasted through feminists' hue and cry? Specifically, statements by Ms. Ranjana Kumari to allege some patriarchal mindset in the above judgment actually amounts to contempt of apex court bench.
But, then, feminist organizations are now very well known for being anti-human and specifically anti-men and least regard for law or courts.
When Justice J.D.Kapoor suggested that Dowry law misuse must be checked to save marriages - many women orgs and led by AIDWA, broke into the Delhi HC compound. Read in the news clip, the protesting activists included Ms. Ranjana Kumari, MP Suhashini Ali, Ms.Brinda Karat etc.
Let's try to understand more what SC said in the judgment :
Is the SC judgment singling out 498A?
NO - feminist want to paint a picture that the mindset is anti-women, but the judgement mentions that the procedures laid down will have to followed for any section where punishment is less than 7years.
Did SC amend the section 498A?
NO - only asked to follow procedure for arrest!
Does SC judgement tell anything new about 498A law misuse? Yes and No - SC was very well aware about misuse and illegal arrests - just that it put down some numbers this time. Depending upon how one wants to interpret, the conviction stats will actually come down to about not more than 2% if all the cases of out of court settlement, quashing etc are included and all cases of parallel conviction under IPC 304-B are excluded.
Did SC say don't arrest ever?
NO - infact, in cases where police does not arrest where accused is influential, police will now have to give reasons for not arresting also - and then a magistrate will evaluate if police version is satisfactory. And, mind you, here the complainant too will get a chance to present her side of story. So, in all probability, in cases where actually cruelty/harassment has happened, the arrests and convictions will become only more fair! This will also help a great deal in weeding out the false cases - and that's where it hurts the feminists!
If nothing is new in the SC judgment, then why the hullabaloo?
Actually there's something new - not following the procedure will now amount to contempt of court by the erring police and Magistrate. These guideline will also help to some extent in curbing corruption related to arrests and bails.
Will all the illegal arrests stop completely?
Difficult to say - accused will have to be vigilant on the kind of information police produces to demand arrest. Also, be vigilant of new traps that may be devised to construct a case for arrest.
Do watch some of the newsroom debates on this judgment in following videos
NDTV Debate (Hindi)
IndiaTV (Hindi)
News24 Debate (Hindi)
It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reasonable satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest. Denying a person of his liberty is a serious matter....Also:
A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reasonable justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences, an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave the Station without permission would do.
22. The above requirements shall be followed in all cases of arrest till legal provisions are made in this behalf. These requirements shall be in addition to the rights of the arrested persons found in the various police manuals.
Due to feminist pressure etc. offences under the laws like IPC 498-A and Dowry Prohibition Act etc. got labelled as heinous crimes, by somehow giving examples of and equating to Dowry Death (IPC 304-B). So, even though the above SC judgment did brought some relief in terms of finding whereabouts of a detainee etc., but illegal arrests continued to a great extent.
Now, coming specifically to 498A, Supreme Court (and various other lower and high courts) has time and again expressed concern over its gross misuse.
In Sushil Kumar Sharma vs Union Of India (2005) SC observed as follows:-
The object of the provision (Section 498A) to prevention of the dowry menace. But as has been rightly contended by the petitioner many instances have come to light where the complaints are not bonafide and have been filed with oblique motive. In such cases acquittal of the accused does not in all cases wipe out the ignominy suffered during and prior to trial. Sometimes adverse media coverage adds to the misery. The question, therefore, is what remedial measures can be taken to prevent abuse of the well intentioned provision. Merely because the provision is constitutional and intra-virus, does not give a licence to unscrupulous persons to wreck personal vendetta or unleash harassment. It may, therefore, become necessary for the legislature to find out ways how the makers of frivolous complaints or allegations can be appropriately dealt with.
Till then the courts have to take care of the situation within the existing frame work. As noted above the object to strike at the roots of dowry menace. But by misuse of the provision a new Legal Terrorism can be unleashed. The provision is intended to be used a shield and not an assassin’s weapon.
In Som Mittal vs. Government of Karnataka (2008), SC observed the following regarding Section 498A:-
Often false FIRs are filed e.g. under Section 498A, IPC, Section 3/4 Dowry Prohibition Act, etc. Often aged grandmothers, uncles, aunts, unmarried sisters, etc. are implicated in such cases, even though they may have nothing to do with the offence. Sometimes unmarried girls have to go to jail, and this may affect their chances of marriage.
In Preeti Gupta vs. State of Jharkhand (2010) SC observed that :-
“Unfortunately a large number of these complaints have not only flooded the courts but also have led to enormous social unrest affecting peace, harmony and happiness of the society. It is high time that the legislature must take into consideration the pragmatic realities and make suitable changes in the existing law. It is imperative for the legislature to take into consideration the informed public opinion and the pragmatic realities in consideration and make necessary changes in the relevant provisions of law”Also:
34. Before parting with this case, we would like to observe that a serious relook of the entire provision is warranted by the legislation. It is also a matter of common knowledge that exaggerated versions of the incident are reflected in a large number of complaints. The tendency of over implication is also reflected in a very large number of cases.
In Shaukin Vs State of U.P. (2011) Hon'ble Allahabad HC gave specific directions to strictly follow CrPC 41 Amendments
20.We therefore direct the Magistrates that when accused punishable with upto 7 years imprisonment are produced before them remands may be granted to accused only after the Magistrates satisfy themselves that the application for remand by the police officer has been made in a bona fide manner and the reasons for seeking remand mentioned in the case diary are in accordance with the requirements of sections 41(1)(b) and 41 A Cr.P.C. and there is concrete material in existence to substantiate the ground mentioned for seeking remand. Even where the accused himself surrenders or where investigation has been completed and the Magistrate needs to take the accused in judicial custody as provided under section 170(1) and section 41(1)(b)(ii)(e) Cr.P.C, prolonged imprisonment at this initial stage, when the accused has not been adjudged guilty may not be called for, and the Magistrates and Sessions Courts are to consider the bails expeditiously and not to mechanically refuse the same, especially in short sentence cases punishable with upto 7 years imprisonment unless the allegations are grave...
And here come a landmark judgment from SC, Arnesh Kumar vs State of Bihar (Jul 2014) that mandates accountability in arrests on the police in keeping up with the spirit of CrPC 41 amendments.
(1) All the State Governments to instruct its police officers not to automatically arrest when a case under Section 498-A of the IPC is registered but to satisfy themselves about the necessity for arrest under the parameters laid down above flowing from Section 41, Cr.PC;
(2) All police officers be provided with a check list containing specified sub-clauses under Section 41(1)(b)(ii);
(3) The police officer shall forward the checklist duly filed and furnish the reasons and materials which necessitated the arrest, while forwarding/producing the accused before the Magistrate for further detention;
(4) The Magistrate while authorising 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 authorise detention;
(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;
(6) Notice of appearance in terms of Section 41A of Cr.PC 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;
(7) 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.
(8) Authorising detention without recording reasons as aforesaid by the judicial Magistrate concerned shall be liable for departmental action by the appropriate High Court.
Now, why such a judgment that proposes to uphold law of the land in spirit and human rights is being lambasted through feminists' hue and cry? Specifically, statements by Ms. Ranjana Kumari to allege some patriarchal mindset in the above judgment actually amounts to contempt of apex court bench.But, then, feminist organizations are now very well known for being anti-human and specifically anti-men and least regard for law or courts.
When Justice J.D.Kapoor suggested that Dowry law misuse must be checked to save marriages - many women orgs and led by AIDWA, broke into the Delhi HC compound. Read in the news clip, the protesting activists included Ms. Ranjana Kumari, MP Suhashini Ali, Ms.Brinda Karat etc.
Let's try to understand more what SC said in the judgment :
Is the SC judgment singling out 498A?
NO - feminist want to paint a picture that the mindset is anti-women, but the judgement mentions that the procedures laid down will have to followed for any section where punishment is less than 7years.
Did SC amend the section 498A?
NO - only asked to follow procedure for arrest!
Does SC judgement tell anything new about 498A law misuse? Yes and No - SC was very well aware about misuse and illegal arrests - just that it put down some numbers this time. Depending upon how one wants to interpret, the conviction stats will actually come down to about not more than 2% if all the cases of out of court settlement, quashing etc are included and all cases of parallel conviction under IPC 304-B are excluded.
Did SC say don't arrest ever?
NO - infact, in cases where police does not arrest where accused is influential, police will now have to give reasons for not arresting also - and then a magistrate will evaluate if police version is satisfactory. And, mind you, here the complainant too will get a chance to present her side of story. So, in all probability, in cases where actually cruelty/harassment has happened, the arrests and convictions will become only more fair! This will also help a great deal in weeding out the false cases - and that's where it hurts the feminists!
If nothing is new in the SC judgment, then why the hullabaloo?
Actually there's something new - not following the procedure will now amount to contempt of court by the erring police and Magistrate. These guideline will also help to some extent in curbing corruption related to arrests and bails.
Will all the illegal arrests stop completely?
Difficult to say - accused will have to be vigilant on the kind of information police produces to demand arrest. Also, be vigilant of new traps that may be devised to construct a case for arrest.
Do watch some of the newsroom debates on this judgment in following videos
NDTV Debate (Hindi)
IndiaTV (Hindi)
News24 Debate (Hindi)
