Accused can’t be arrested on mere complaint anymore, court tells State Govts
The anti-dowry law is being misused and even the sick and invalid are arrested under its draconian provisions, the Supreme Court (SC) said on Wednesday while directing State Governments to issue orders to the police to arrest an accused only after spelling out the reasons before a magistrate. At present, an accused can be arrested on a mere complaint under Section 498A, which is a non-bailable offence.
The police can detain an accused but when they seek to take him into custody, they will have to give convincing reasons to the magistrate. While this was provided in the CrPC, it was not being followed both by the police and magistrates, the SC noted. Now, the police officials and magistrates concerned will be liable for departmental action and contempt of court proceedings if they fail to comply with the “cautions” spelled out by the SC.
The order said: “All State Governments are to instruct police officers not to automatically arrest people when a case under Section 498A of the IPC is registered, but to satisfy themselves about the necessity for arrest under the parameters laid down, flowing from Section 41 of Criminal Procedure Code.” This would end, if not curtail, the power of police to arbitrarily arrest people, against which the court was critical in its ruling.
Deciding a case of dowry harassment against a husband and his entire family, the bench of Justices Chandramauli Kumar Prasad and Pinaki Chandra Ghose said: “The attitude (of the police) to arrest first and then proceed with the rest is despicable. It has become a handy tool for police officers who lack sensitivity or act with oblique motives.”
To overcome this situation, the Bench directed that any police officer before arresting a person named as accused will have to prepare a report satisfying these questions: Why arrestIJ Is it really requiredIJ What purpose will it serveIJ What object will it achieveIJ
“It is only after these questions are addressed and conditions as enumerated above are satisfied, the power of arrest needs to be exercised,” the bench observed.
Along with the reasons, the police officer will have to attach the material that necessitated the arrest, while producing a person before the magistrate for further detention. This report will have to meet the satisfaction of the magistrate, the court said.
Finally, to ensure its order was complied with, the bench declared that failure to comply with the above order either by the police or the magistrate will render them liable for departmental action and even contempt of court proceedings.
Referring to instances of blatant misuse of anti-dowry law, as in the case before it, the bench was of the opinion that Section 498A, being both cognizable and non-bailable has been used as a “weapon” rather than “shield” by disgruntled wives to harass husbands and his relatives.
The court went on to say that in several cases “bedridden, grandfathers and grandmothers of the husbands, their sisters who had been living abroad for decades were arrested.”
Referring to the Crime in India 2012 statistics published by the National Crime Records Bureau, the Court pointed out that in 2012 arrests made under Section 498A showed a 9.4 per cent rise over last year. “Arrest brings humiliation, curtails freedom and scars people forever,” the court said, adding, that the police, despite knowing it, use this power as a tool of harassment and oppression.
The court observed that of as many as 372,706 ongoing cases under dowry harassment nearly 317,000 are likely to result in acquittal according to a current estimate. It hoped that once its guidelines were enforced, it would drastically bring down cases of anticipatory bail pending in these matters before various courts.