How to arrest the accused of the offence of cruelty punishable under section 498A of the Indian Penal code? Statistics published by National Crime Records Bureau, Ministry of Home Affairs shows arrest of 1,97,762 persons all over India during the year 2012 for the offence under Section 498-A of the IPC, 9.4% more than the year 2011. Nearly a quarter of those arrested under this provision in 2012 were women, i.e. 47,951 which depicts that mothers and sisters of the husbands were liberally included in their arrest net.
Its share is 6% out of the total persons arrested under the crimes committed under the Indian Penal Code. It accounts for 4.5% of total crimes committed under different sections of penal code, more than any other crimes excepting 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. As many as 3,72,706 cases are pending trial of which on current estimate, nearly 3,17,000 are likely to result in an acquittal.
The arrest brings humiliation, curtails freedom and cast scars forever. The need for caution in exercising the extreme power of arrest has been emphasised time and again by Courts but has not yielded the desired result. Power to arrest dramatically contributes to its arrogance so also the failure of the Magistracy to check it.
Law Commissions, Police Commissions and Supreme Court in a large number of judgments emphasised the need to maintain a balance between individual liberty and societal order while exercising the power of arrest. Police officers arrest as they believe that they possess the ability to do so.
From a plain reading of the provisions of section 41 cr.p.c., 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 its satisfaction that such person had committed the offence punishable as aforesaid.
An accused arrested without warrant by the police has the constitutional right under Article 22(2) of the Constitution of India and Section 57, Cr.PC to be produced before the Magistrate without unnecessary delay and in no circumstances beyond 24 hours excluding the time necessary for the journey. During an investigation of a case, an accused can be kept in detention beyond a period of 24 hours only when it is authorised by the Magistrate in the exercise of power under Section 167 Cr.P.C.
Arnesh Kumar vs State Of Bihar & Anr [(2014) 8 SCC 273], Supreme Court held that:
- 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.
- 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 allow detention.
- All police officers are provided with a checklist containing specified sub-clauses under Section 41(1)(b)(ii)
- The police officer shall forward the list duly filed and furnish the reasons and materials which necessitated the arrest, while forwarding/producing the accused before the Magistrate for further detention.
- Notice of appearance regarding Section 41-A CrPC is 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.
- 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 the High Court having territorial jurisdiction.
- Authorising detention without recording reasons as aforesaid by the Judicial Magistrate concerned shall be liable for departmental action by the appropriate High Court.