'Strictly Follow Arnesh Kumar Guidelines On Arrest' : Supreme Court Directs High Courts & DGPs To Ensure Compliance

“The high courts shall frame the directions in the form of notifications and guidelines to be followed by the sessions courts and all other and criminal courts dealing with various offences. Likewise, the Director General of Police in all states shall ensure that strict instructions in terms of above directions are issued. Both the high courts and the DGPs of all states shall ensure that such guidelines and directives/departmental circulars are issued for guidance of all lower courts and police authorities in each state within eight weeks from today. Affidavits of compliance shall be filed before this court within ten weeks by all the states and high courts, though their registrars.”

What are the Arnesh Kumar guidelines?

Section 498A, which punishes ‘cruelty’ against married women at the hands of her husband or his relatives, has been given a wide import to include any wilful conduct which is likely to drive a woman to kill herself by suicide or cause grave harm to her life, limb, or health – mental or physical; as well as any harassment related to a demand for dowry. The Arnesh Kumar bench, however, noted that the law, despite its avowed object to combat the menace of harassment meted out to married woman by her husband and his family, especially in connection with dowry demands, was susceptible to misuse:

“Section 498A of the IPC was introduced with avowed object to combat the menace of harassment to a woman at the hands of her husband and his relatives. The fact that Section 498A is a cognizable and non-bailable offence 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. In a quite number of cases, bed-ridden grandfathers and grandmothers of the husbands, their sisters living abroad for decades are arrested.”

In view of this, the apex court bench of Justices Chandramauli Kumar Prasad and Pinaki Chandra Ghose issued a set of guidelines, inter alia, restraining the police from automatically arresting the accused in dowry related cases. In this significant verdict, the top court categorically said that arrests could not be made solely on the belief that the accused may have committed an offence that would attract Section 498A of the Indian Penal Code. For an arrest to be justified, the court said that there needed to be adequate material to show the reason for the arrest as well as explain why it was necessary for the purposes of the investigation. The court also clarified that these guidelines would apply equally to other provisions in the Indian Penal Code under which an accused could be sentenced to imprisonment for seven years or less.

In 2015, the Supreme Court declined the request of the National Commission for Women (NCW) to review these guidelines. The commission had argued that the July 2014 judgement went beyond the statutory mandate and gave wide discretion to the police with respect to the arrest of a person under Section 498A of the Indian Penal Code.

What do the Arnesh Kumar guidelines state?

“Our endeavour in this judgment is to ensure that police officers do not arrest accused unnecessarily and magistrate do not authorise detention casually and mechanically,” the Arnesh Kumar bench said, before issuing a set of eight guidelines. These, the court clarified, would apply not only to the cases under Section 498A of the Indian Penal Code or Section 4 of the Dowry Prohibition Act, but also such cases where an offence is 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. The guidelines are as follows:

1. All the State Governments to instruct its police officers not to automatically arrest 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 above flowing from Section 41 CrPC;
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 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;
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 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;
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.

What has the Supreme Court said now?

Yet again, the Supreme Court has stressed the importance of strictly observing the Arnesh Kumar guidelines, besides directing the high courts and police chiefs of all states to issue notifications and circulars containing these guidelines within eight weeks.

These observations were made while setting aside a Jharkhand High Court order denying anticipatory bail to a husband accused of offences under various provisions of the Indian Penal Code, including Section 498A, and those under the Dowry Prohibition Act, 1961. Not only was the plea for anticipatory bail rejected, but the high court also directed the accused husband to surrender and later, seek regular bail. The order states:

“Once the charge sheet was filed and there was no impediment, at least on the part of the accused, the court having regard to the nature of the offences, the allegations and the maximum sentence of the offences they were likely to carry, ought to have granted bail as a matter of course. However, the court did not do so but mechanically rejected and, virtually, to rub salt in the wound directed the appellant to surrender and seek regular bail before the trial court. The high court fell into error in adopting such a casual approach. The impugned order, therefore, cannot stand, and is hereby set aside.”

Case Details

Md Asfak Alam v. State of Jharkhand & Anr. | Criminal Appeal No. 2207 of 2023

Citation : 2023 LiveLaw (SC) 583

Click Here To Read/Download Judgment