“No arrest should be made only because the offence is cognizable and non- bailable and therefore, lawful for the police officers to do so”.
The Supreme Court in its recent judgement in Arnesh Kumar v. State of Bihar and Anr said that no arrest should be made immediately in the offences which are allegedly committed by the accused and the offence is cognizable and non-bailable, with particular reference to S. 498 A of Indian Penal Code (IPC). The judgement since then has been the subject of constant scrutiny and discussions.
It laid down certain guidelines for the police officers to follow relating to the arrests made under S. 498A of IPC. The guidelines apply not only to 498A of IPC but all the cognizable offences having punishment less than or which may extend to seven years, with or without fine. Disregard of the guidelines issued in the case will result in the disciplinary and contempt proceedings against the police officers and disciplinary proceedings against Judicial Officers.
Though the guidelines are applicable to a variety of offences, the Hon’ble Court expressed its concerns over the growing misuse of S. 498A. This article will discuss this section briefly, the response of our Judiciary in recent years and the implications of this judgement on S. 498A.
S. 498A of IPC was introduced in the Criminal Amendment Act, 1983 by the Parliament to curb the growing menace of harassment and cruelty being inflicted by the husband and his relatives upon the wife chiefly for dowry. There was an unusual growth in the number of cases of violence against women for non fulfillment of dowry demands and deaths of newly-wed brides by burning during 80s and 90s. This pushed the Parliament to introduce specific provisions in the criminal law which could tackle this growing threat. The new additions were S. 498 A in IPC (which made it an offence to commit cruelty on the wives), in S. 174 of Cr.P.C. and S. 113A in Indian Evidence Act. Since then there have been several complaints made under the section -some true, some false.
There are several cases in which the higher Judiciary has expressed its concerns over the misuse of this law to satisfy personal vendetta. The Supreme Court of India in State of Haryana v. Bhajan Lal asked the Parliament of India to seek the possible ways by which frivolous and vexatious complaints under the section can be reduced. The Hon’ble Court also said that due to the misuse of law, it has become a tool for ‘legal terrorism’. Similar concerns were expressed in cases like Sushil Kumar Sharma v. Union Of India, Preeti Gupta V. State of Jharkhand. Many directions for the police regarding the manner of making arrests were issued -such as requiring the police officers to not to make immediate arrests and first trying for mediation- by some High Courts like in Chandrabhan V. State by Delhi High Court.
However, the Supreme Court in the present case took serious note of the “rise in the false allegations” of cruelty against husband and his relatives. In the words of the Supreme Court, “the fact that S. 498A is 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 Hon’ble court also referred to the ‘Crime in India 2012 Statistics’ published by National Crime Records Bureau which says that there were 1,97,692 arrests under the section and these arrests share 6% in total arrests. It also says that the rate of charge sheeting under the section is as high as 93.6%, and the rate of conviction, on the other hand, is just 15% .
The Hon’ble court remarked that arrest curtails liberty and the police have to maintain the balance between the liberty of individual and responsibility owed to the society. Therefore, S. 41 (1) (b) lays down certain guidelines which the police officers have to keep in mind before making an arrest for the cognizable offences whose punishment may be less than or extend to seven years with or without fine.On the basis of these guidelines, the natural corollary is that the police officer has to apply his mind and reason before making an arrest in cognizable offences. He must answer the questions put to him by himself like “why arrest? What purpose will it serve?”
Even when the arrest is made by police officer after applying his mind, the detention has to be authorized by Magistrate under S. 167 of Cr.P.C. The accused has the right to be produced before the magistrate within 24 hours (excluding the time for journey) and either get his detention authorized or set free by judge.
The recent judgement of the Hon’ble Supreme Court has invited mixed responses. Women’s rights activists said that the ‘dilution’ will make women more vulnerable. Kiran Singh, an advocate at Delhi High Court and also a counselor at Delhi State legal Services Authority said that the conviction rate of 15% can’t be taken for its misuse as the parties get tired of long court proceedings and in 90% cases, they agree on compromises. On the other hand, the men’s groups have welcomed the judgement and called it a ray of hope for hundreds of innocent men.
However, apart from these responses, there are already several views, which are pro S. 498 A, that immediate arrests should not be made without being reasonably satisfied for the need of arrest and more efforts should be made to have conciliation between the parties by the police department through proper counseling centers before the arrests as the arrests will make the settlement impossible.
The Supreme Court has not created any new law but interpreted the S. 41 of Cr.P.C. The Court does not bar the arrests completely rather tries to delay them in order to solve the disputes through conciliation and save the institution of marriage and children born of those wed locks. The cases under this law are both grave and petty. The guidelines take care of both the situations. While petty cases can be solved through conciliation without the need of arrests whereas grave cases which demand immediate action, the police officers can always go for the arrests as they would satisfy the guidelines.
Moreover, the immediate arrests do not give teeth to this law rather it is the ultimate punishment and justice which makes this law strong. However, the provision of initiation of disciplinary and contempt proceedings against those police officers who will flout the guidelines may desist them from lodging FIRs and making arrests even in genuine cases.
But, as it is in every case, it depends upon the society in what manner it implements and uses the law. Prudence and careful understanding of the guidelines and the cases at hand can certainly make S. 498A a boon for all women as it will achieve twin purposes- save the marriage and punish the guilty.
About the Author
Kanchan is a second year law student at National Law University, Delhi. Out of the subjects that she has studied till now, she takes interests in criminal Law. Her hobbies include painting, watching movies, listening to songs etc.
SLP (Cri) No. 9127 of 2013.
 Indian Penal Code, 1860 § 498 A.
 AIR 1992 SC 604.
 2005 6 SCC 281.
 AIR 2010 SC 3363.
 Bail application 1627/2008, Also see Tr. Ramaiah v. State Cr. O.P. No. 10896 of 2008.
 SLP (Cri) No. 9127 of 2013.
 Figures at a Glance, http://ncrb.gov.in/CD-CII2012/cii-2012/figure%20at%20a%20glance.pdf
 SLP (Cri) No. 9127 of 2013.
 Code of Criminal Procedure, 1973 § 41 (1)(b).
 SLP (Cri) No. 9127 of 2013.
 Constitution of India, 1950 Art. 22 & Code of Criminal Procedure, 1973 § 57.
 Pallavi Pollanki, Activists on SC ruling : Why Single out Dowry Abuse Law as case of Misuse? 4 July 2014 http://www.firstpost.com/india/activists-on-sc-ruling-why-single-out-dowry-abuse-law-as-case-of-misuse-1601823.html
 Similar views shared by Ministry of Women and Child Development and National Women Commission of India as discussed by Law Commission in its 243rd Report on S. 498A (Aug 2012) http://indiankanoon.org/doc/174997460/