8 years since “Arnesh Kumar Guidelines” what has changed ?

– Prakhar Bajpai

Arnesh Kumar serves to be the landmark judgement in the judicial history of India. The Supreme Court in this judgment made it clear that police must follow the “investigate first and then arrest” doctrine in the cases that are registered under section 498-A. The offence registered under Section 498-A of Indian Penal Code, 1860 [“IPC”]  is punishable with the imprisonment of less than 7 years and considering this factor the court also made it clear to follow the procedure laid in Section 41(1)(a) of Criminal Procedure Code, 1973 [“CrPC”] while arresting the person against whom the FIR is filed in the case of offences which are punishable by less than 7 years of imprisonment. In the case of Harsh Kilachand & Anr v. State of Uttrakhand and Ors  the Apex Court did not appreciate the way in which the single judge bench has disposed of various criminal writ petitions in a “cyclostyled manner” just by directing the Station House Officer (SHO) and Investigating Officer (IO) to follow the guidelines of “Arnesh Kumar Guidelines” [HEREINAFTER “The Guidelines”] given by the Supreme Court. However, the Apex court has requested the Chief Justice of the Uttarakhand High Court to appoint another judge to look into the present matter.  It was rightly propounded in the case of Dharamveer Singh v. State of UP  that cyclostyled order shows complete absence of objectivity and non-application of mind of the assessing authority.

What is it about the guidelines that have generated heated debates since its inception till this juncture? Do the guidelines stand as the ivory walls in protecting the arrested person under “cognizable” and “non-bailable” offences? How strongly are the guidelines being followed by the subordinate courts and police? The article seeks to answer all these questions while focusing on the circumstances that led to the framing of these guidelines.

Need for framing the guidelines

Section 498-A of Indian Penal Code, 1860 [“IPC”] states that a woman’s husband or any of his relatives who subjects the woman to cruelty shall be punished for imprisonment not exceeding 3 years. In the case of Shilpa Mittal v. State of Nct of Delhi it was observed that offences for which the maximum punishment provided under any law including the IPC, is imprisonment up to 3 years will fall under the category of ‘Petty offences’. The Juvenile Justice Act of 2015 defines “heinous offences” as offences under act whose punishment is imprisonment for seven or more years. This concludes with the interpretation that in India, offences having punishment of 7 years or less are not considered a ‘heinous’ crime and the person committing the same is considered as “less serious risk” to society.  In IPC, offences that have an imprisonment period of less than 7 years are considered to be ‘non-cognizable’ offences. Therefore, a person who has not committed a more heinous crime should not be arrested immediately. However, cruelty against a woman by her husband was an offence that ought to be regarded as a serious crime. The problem of dealing effectively with social offences is not a new one. From time to time, the legislature, on merits, being concerned with the need for proper enforcement of a particular enactment on the subject, has devoted its attention to the measures necessary in that connection and that making a distinction in s. 498-A to “cognizable offence” will upheld the rule of law.  

However, this led to its misuse Different courts are of the view that this provision has been misused by the wives to harass the husband and his parents. Several state governments have also stated that they have no objections to this offence being made non-cognizable and compoundable. In Ramgopal v. State of MP, the offence was regarded as being falling private in nature and could be made compoundable if the parties are willing to settle the dispute mutually. Verdicts ranging from the increasing number of 498-A cases are a reflection of “exaggerated versions of the incident” and this has led to the unleashing of new legal terrorism

The Police and Criminal Evidence Act of 1984 of the United Kingdom u/s 24A lays down certain conditions where a police officer may arrest a person without warrant nowhere does it authorizes the IO  to immediately arrest the person on the sole basis of information given to the police in the form of FIR. In Philippines the revised rules of Criminal Procedure, 2000 section 5 of which Rule 113 states that the police officer can only arrest a person if the crime has been committed in front of IO, or police has the probable reason to believe that the person has committed crime or the person has escaped the penal establishment. In United States according to Federal Rules of Criminal Procedure, Rule 5(b) person can only be arrested if he has committed felony or misdemeanour in front of the police or that the police has the reasonable grounds to believe that so has been committed. In India, Section 2(c) defines a cognizable offence as wherein a police officer ‘may’ arrest without warrant. The use of the word ‘may’ show that a police officer is not bound to arrest even in a case of a cognizable offence. It was observed in Som Mittal v. State of Karnataka that arrests in the country were unnecessary or unjustified. Also, 43.2 % of the expenditure in jails was over such prisoners only who need not have been arrested at all.

Inception of the Guidelines

There was a lopsided approach regarding 498-A, which prompted the Supreme Court in 2014 to make a particular set of guidelines which will stop the police from making arbitrary arrests. In Arnesh Kumar v. State of Bihar, while discussing the apprehensions about the arrests falling under Section 498-A of IPC, the Court ordered that no arrests will be made automatically in cases under Section 498-A. The bedrock of this contention was the frivolous cases filed by the wife against her husband for ulterior motives. The Court was of the view that the paramount issue here is whether the police were right in arresting prior investigation. The Supreme Court also mentioned the data by the National Crime Records Bureau (NCRB) which showed that 1,97,762 persons all over India were arrested under 498-A of the IPC in 2012 showing a rise of about 9.4 % compared to the previous year among which 47,951 are women which depicts the sisters and mother of the husband are casually included in the arresting net. Thus, the court concluded that there is a need for caution in the exercise of the power of arrest vested in the police. As per the recent data released by NCRB, the cases registered in 2020 u/s 498-A are 1,11,549, the recent vigour with which the judicial branches are pursing the enforcement of the guidelines has decreased the total number of registered cases by 44 %. Although by adding cases from previous years the tally goes up to 1,67,067. 

What are the Guidelines ?

Considering the merits of the case, the Court issued guidelines, which ought to be followed when the cases are registered u/s 498-A. The guidelines instructed police officers not to immediately arrest a person against whom a complaint has been made u/s 498-A, provided a checklist mentioned under 41(1)(a) of CrPC to the investigating officer to fully comply with while arresting the person and hence notice of appearance u/s 41 of the code be served upon the accused. The policer officer will have to record the reasons for such an arrest, moreover Magistrate while authorizing the further detention of the arrestee will have to examine the reasons of such arrest. Additionally, the police officer will be liable for contempt of court in case they fail to follow the guidelines.  

In Kundam Kumar v. State of Bihar, it was brought to court’s notice that Judicial Officer had merely looked at the reasons of arrest as the mere formality and had detained the person until further orders. The Apex Court in response of the writ petition filed held that the detention was illegal as the Judicial officer did not follow “The Guidelines.” In Rajinder Kumar v. State of Bihar, it was observed that cases under 498-A are being filed mostly in the matters arising out of matrimonial disputes which can be settled through mediation between the parties and are not criminal in nature. Frivolous complaints often waste the prestigious time of courts. Almost in every case, there is the blatant use of this power by them, sometimes even for ulterior monetary benefits. In Joginder Kumar v. State of Uttar Pradesh Apex Court vehemently stated that no arrest shall be made lawful just because it is well within the power of police officers to do so, the existence of the power to arrest is one thing and justification for its exercise is another. 

Compliance with the Guidelines

Malimath Committee on Criminal Justice Reforms (2003) observed that it is necessary for the offences u/s 498-A to be bailable and compoundable and arresting the person immediately on the basis FIR is against the fundamental law of the state.  The basic idea of the ‘doctrine of binding precedent’ is that it seeks to have consistency and certainty in judicial precedents and thus enabling the organic development of law. Therefore, it becomes necessary that guidelines be followed strictly so that people are not arrayed as accused, arrested, and remanded to judicial custody.  There have been various instances post the year 2014 that is after the guidelines were issued that executive did not follow the direction of SC. So to say that Supreme Court rightly propounded in Citizens for Democracy v. State of Assam, that every police officer is bound to follow the direction of SC, otherwise they will be liable under the Contempt of Court Act, 1971.

The High Court of Karnataka fined the officers the penalty of Rs.1 Lakh for infringing the fundamental rights of the person. Telangana High Court has also sentenced four police officers including one IPS to 4 weeks of imprisonment for not following “The Guidelines”, wherein the police had issued a lookout circular against the petitioner without following the procedure u/s 41(1)(a). Courts have so far come forward to protect the rights of the person about to be arrested. The case of Bollineni Rajagopal Naidu v. State of Andhra Pradesh also highlighted the duty of Judicial Magistrates to apply their minds to follow Sec. 167 of CrPC and examine whether or not stipulations contained in Section 41(1)(a) are followed, and only upon the fulfilment of this, they can mandate the extension of the detention order. 

Conclusion and Suggestion

Violations which are likely to infringe upon the faith of the public in the administration of justice and the court system must be punished, to prevent the repetition of such behaviour and restore the faith of citizens in rule of law. When it is brought to the court’s notice that the particular provision is been misused, it should make the implementation of the law more reasonable and consistent with the object and policy of the Act. Furthermore, Court should look at the statute as a whole and consider the appropriateness of the meaning in a particular context avoiding inconsistencies or unreasonableness.

In conclusion, it can be set forth that author is not suggesting taking away all the powers u/s 498-A and make it a toothless provision but rather to implement it effectively to uphold the rule of law. A suggestive point here is that just after the registration of FIR there has to be a cooling period of say two months during which no coercive action may be taken against the husband or his family members by police. Moreover, these issues can also be referred to the Family Welfare Committee which would be established in every district with the help of state mechanism. Thus, it will make offences under 498-A compoundable. However, if this offence u/s 498A is accompanied by other penal offences then putting all kinds of cruelty against the woman under one blanket would mean going against the fundamental feature of modern jurisprudence and putting the other sex on a higher pedestal legally. Therefore, only cases with no injury and offences which has less than 10 years of imprisonment shall only be referred to the Committee.

There another contentious issue is the backlog of cases which needs to be addressed on an urgent basis. For expeditious disposal of cases u/s 498-A there must be a monitoring mechanism in the police department to keep track of these cases which with the assistance of manpower would be categorised on the basis of alleged offences against the party and additionally comply with the system which would overlook the observance of the guidelines.

The Supreme Court has kept its doctrinal torch light high enough to make it shine on the subordinate courts, guiding them on the right path. So, when the contradictory instance taken by the Uttarakhand High Court was brought to the notice of the Apex Court bench consisting of Justices B.R. Gavai and Hima Kohli, it immediately came to action by first condemning the way in which the petitions were getting disposed of and took appropriate actions. Judicial activism by various high courts has also come to play its role in the establishment and strict adherence to the “Arnesh Kumar guidelines.” 

[ He is a 2nd year law student at NLU, Punjab and has interests in Constitutional, Criminal and Arbitration Laws.]


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