Decrypting Arnesh Kumar Guidelines For Making Arrest

Background

Arnesh Kumar v. State of Bihar was a case registered against one husband under section 498A IPC and Section 4 of the Dowry Prohibition Act, 1961 by his wife. The wife had claimed that her in-laws tortured her for dowry, and her husband was facilitating it by being a mute spectator. She also claimed that she was driven out of her matrimonial house because she was unable to bring a dowry.

The offence of 498A IPC is both cognizable and non-bailable. Without going deeper into the factual scenario of the case, this SLP was filed before the Supreme Court on the limited point of whether the husband was entitled to anticipatory bail when the same was rejected by lower courts.

The Supreme Court could have heard the case in a routine manner and decided on the limited aspect of whether the lower courts were correct in rejecting his anticipatory bail application. However, the Supreme Court went a step further by issuing guidelines to stop the menace of unnecessary arrests. Based on data provided by NCRB for the year 2012, the Supreme Court came to the conclusion that 498A was being misused by both wives and police to further their gains. The wives, to have greater bargaining power at their matrimonial house, were using this provision as a weapon instead of a protective shield. Police were using it as a handy tool to further their oblique motives.

The Supreme Court observed, “We believe that no arrest should be made only because the offense is non-bailable and cognizable and therefore, lawful for the police officers to do so”.

Through this judgment, the Hon’ble Apex Court hoped to put a bridle on the arbitrary power of arrest.

Section 41 CrPC

This provision provides as to when a person may be arrested without a warrant by a police officer. It provides 10 instances [from 41(1) (a) to 41 (1) (i)] in which a police officer may arrest a person without first obtaining a warrant from a Magistrate. In the aforementioned judgement, the Supreme Court mainly focused on two out of these ten instances [Section 41(1) (b) and Section 41(1) (ba) ] to put a bridle on the police’s power to arrest casually.

Broadly power of police to arrest without a warrant can be segregated into two categories: -

• Arrest in a cognizable offense with punishment for imprisonment up to 7 years provided in section 41(1)(b)
• Arrest in a cognizable offense with punishment for imprisonment of more than 7 years or with a death sentence provided in section 41(1)(ba)

Steps of inquiry

First: Whenever a case is registered, the police officer entrusted with the investigation has to collect evidence, and based on the evidence so collected, he has to arrive at a decision whether the evidence revealed with respect to any accused is prima facie sufficient to make out a cognizable offense against him. Thus, a complaint registered mechanically should not be the sole ground to believe that a cognizable offense has been committed for the purpose of arresting anyone. For the purpose of initial investigation, the accused person can be summoned for examination by utilizing provision under section 160 CrPC.

Second: If a cognizable offence is made out, the police officer has to see whether it is punishable upto 7 years or more than 7 years/ death sentence.

Third: A decision has to be made whether the arrest of the accused is required or not required. If the offence is punishable for imprisonment up to 7 years, provisions under section 41(1) (b) and 41 A of CrPC would be applicable. If the offence is punishable with imprisonment of more than 7 years or with a death sentence, then the provisions under section 41(1) (ba) and 41 A of CrPC would be applicable for deciding the need of arresting.

Procedure when police officer decides that arrest has to be made

Procedure when police officer decides that arrest has to be made in an offence which is cognizable and punishable with imprisonment upto 7 years

Reason to believe	Facts that necessitate arrest	Conclusion arrived at
Police officer should have reason to believe on the complaint that the person against whom complaint is made has committed the offence alleged in the complaint	There must be reasonable facts which enable the police officer arrive at the conclusions mentioned in section 41(1)(b)(ii). For e.g., if a person accused of committing bank fraud and cheating, is about to abscond from India, it would satisfy the conclusion mentioned at Section 41(1)(b)(ii)(e).	There are 5 statutory conclusions which must be arrived at by a police officer based on facts, in order to arrest a person. The law mandates the police officer to state the facts and record the reasons in writing which led him to come to a conclusion. The conclusions are listed in section 41(1)(b)(ii).

IO, before arresting, has to record his reasons in his case diary/general diary. Reasons must be cogent and should show application of mind for arriving at any of the conclusions mentioned under section 41(1)(b)(ii).

IO should prepare a checklist containing specified sub-clauses under section 41(1)(b)(ii) of CrPC, mentioning the reasons and materials that necessitated the arrest.

The checklist prepared by the IO should be forwarded by the Public Prosecutor to the court at the time of producing the accused before the court. The court should judicially scrutinize the check list while deciding on the remand application.

Procedure when police officer decides that arrest has to be made in an offence which is cognizable and punishable with imprisonment of more than 7 years.

In such cases, provisions under section 41(1)(ba) and 41 A CrPC apply.

It is a misconception among police officials that Arnesh Kumar stipulates that when the offense is cognizable and punishable with imprisonment of more than 7 years, then an arrest has to be made.

In fact, arrest for such offenses is not mandatory.

In such cases, an arrest can be made in view of the facts and circumstances of the case and the gravity of the offense.

Procedure when a police officer decides that an arrest is not to be made

Arrest is not mandatory merely because the offence is punishable with more than 7 years of imprisonment. The existence of the power to arrest is one thing and the justification of its exercise is another thing. Thus a police officer may decide that the arrest of a person is not needed under the provisions of Section 41(1) CrPC covering both sub section 41(b) and 41(ba).

The Supreme court has directed that

“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; 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”.

When a decision is taken not to arrest the accused, then invariably it means that section 41 A CrPC notice would be issued to the accused to appear and cooperate in the investigation. Similarly, when a decision is taken to arrest the accused, then the requirement to issue notice under section 41A CrPC does not arise. The exercise of making a decision whether to arrest or not has to be taken expeditiously so that in the event it is decided that arrest is not required, the same can be communicated to the Magistrate within two weeks of the institution of case. Similarly, a notice of appearance u/s 41 A CrPC has to be served on the accused within two weeks from the institution of the case. Sometimes, due to complexity of the cases, it is not possible to take this decision within span of two weeks. Moreover, the decision can be taken only after some investigation is done and evidence is collected qua the accused. Therefore, in the event the decision cannot be communicated to the magistrate and notice of appearance under section 41A CrPC cannot be served on the accused within two weeks’ time, the time can be extended by the Superintendent of Police after specifying the reasons in writing. The reasons as certified by SP, should also be reflected in the case diary of the investigating officer.

If at any time a decision is taken that the arrest of the accused is not required and communication in this regard is forwarded to the court, IO shall mandatorily issue a notice under the provisions of section 41A of CrPC to the accused for his appearance before him giving reasonable time for his appearance. This is a mandatory requirement and IO does not have any option but to issue such notice if a decision has been taken as per provisions of section 41 (1)(b) or 41(1)(ba) that arrest is not required.

Now let us answer some frequently asked questions

• Do the Arnesh Kumar guidelines only apply to offenses pertaining to matrimonial disputes such as section 498A IPC?

Supreme Court has clarified in the last paragraph of this judgement that, “The directions issued in this judgement shall not only apply to the cases under Section 498-A of the I.P.C. or Section 4 of the Dowry Prohibition Act, the case in hand, but also such cases where 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.”

• Do the police have no power to arrest a person without a warrant who is accused of committing a cognizable offense punishable with imprisonment of less than 7 years?

Arnesh Kumar nowhere restrains the power of police to arrest in offences which are cognizable and punishable with imprisonment of 7 years or less than 7 years.

• Is it mandatory to issue a notice under section 41A CrPC to an accused alleged to have committed an offense punishable with less than 7 years of imprisonment?

No, it is not mandatory to issue notice under section 41A, if the police officer thinks it is necessary to arrest an accused person. But if the police officer decides not to arrest, such a decision has to be communicated to the Magistrate within two weeks of registration of the case and section 41A notice has to be compulsorily issued to the accused person.

• Can an accused person who has been served section 41A CrPC notice, still be arrested?

It is another misconception that once a 41A notice is served on the accused, and he is complying with the terms and conditions of the notice, then he cannot be arrested. The service of notice only shows that during the initial stages of investigation, arrest was not required. There are two situations in which a person can be arrested even after service of notice under section 41A to him:-

• When he does not comply with the terms of notice
• When even though he is appearing in obedience to notice, there are other compelling reasons for arresting him.

• If the IO decides that arrest of accused is not required against whom an offence punishable with imprisonment of more than 7 years has been registered, then is it mandatory to issue notice under section 41A?

Yes.

• What if the decision whether to arrest the accused or not to arrest the accused is not taken within the prescribed 2 weeks?

The time period can be extended by SP.

• Does Arnesh Kumar Guidelines apply to trap cases by police under the Prevention of Corruption Act?

Many times, the accused person is apprehended red-handed while taking bribe. The police in such cases, usually lay a trap for the offence. The trap money i.e. the bribe amount is treated with phenolphthalein powder (or any other chemical) so that once the accused touches those currency notes, the remnants of powder in his hands would turn the solution mixed with sodium carbonate red. Thus, it is said that he is caught red-handed. In such cases, if he is not arrested immediately, there is a possibility that he will wash his hands or hide the bribe amount. Hence arrest has to be effected forthwith at the scene of the crime. Trap cases are an exception to Arnesh Kumar guidelines in which arrests are covered under section 41(1)(a) as well as Section 41(1)(b) of CrPC and the obligation to give Section 41A notice does not arise. But even then, when a police officer is arresting a person in a trap case, the reasons for his arrest must be recorded in the arrest memo and case diary.

Parting remarks

Whenever the accused person appears in a police station in accordance with Section 41A CrPC notice, an acknowledgment signed and sealed by the IO and countersigned by the accused must be given to him as proof of his compliance with the notice. The noticee’s presence should be recorded in the visitor register of the concerned police station. In case, any document or record brought by him is duly seized at the police station, his signature must be taken at the production cum seizure memo.

The author is an Assistant Public Prosecutor at the Central Bureau of Investigation. Views are personal.