The apex court said the attitude to arrest first and then proceed with the rest is “despicable” which must be curbed and directed all state governments to ensure that police do not resort to arresting in all offences punishable up to seven- year jail term including dowry harassment cases.
“We direct all the state governments to instruct its police officers not to automatically arrest when a case under Section 498-A of the IPC (dowry harassment) is registered but to satisfy themselves about the necessity for arrest under the parameters laid down flowing from Section 41 CrPC,” a bench headed by Justice C K Prasad said.
It said that the police officer shall furnish the reasons and materials which necessitated the arrest before the magistrate.
“Section 498-A 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 498-A is a cognisable 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 quite a number of cases, bed-ridden grand-fathers and grand-mothers of the husbands, their sisters living abroad for decades are arrested,” the bench said.
The bench said the arrest curtails freedom, brings humiliation and casts scars forever and no arrest should be made only because the offence is non-bailable and cognisable.
“The existence of the power to arrest is one thing, the justification for the exercise of it is quite another. Apart from power to arrest, the police officers must be able to justify the reasons thereof.
“No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person.
It would be prudent and wise for a police officer that no arrest is made without a reasonable satisfaction reached after some investigation as to the genuineness of the allegation,” the bench said.
Referring to crime statistics, the apex court said 1,97,762 persons were arrested in 2012 for offence under Section 498-A and nearly a quarter of those arrested under this provision were women depicting that mothers and sisters of the husbands were liberally included in their arrest net.
“Its share is 6 per cent out of the total persons arrested under the crimes committed under Indian Penal Code. It accounts for 4.5 per cent of total crimes committed under different sections of penal code, more than any other crimes except theft and hurt,” it said.
It said the rate of charge-sheeting in cases is as high as 93.6 per cent, while the conviction rate is only 15 per cent, which is lowest across all heads and as many as 3,72,706 cases are pending at trial stage.
The apex court said that police in the country has not come out of its colonial mindset.
“It has not come out of its colonial image despite six decades of Independence, it is largely considered as a tool of harassment, oppression and surely not considered a friend of public. The need for caution in exercising the drastic power of arrest has been emphasised time and again by courts but has not yielded desired result.
“Power to arrest greatly contributes to its arrogance so also the failure of the magistracy to check it. Not only this, the power of arrest is one of the lucrative sources of police corruption.
The attitude to arrest first and then proceed with the rest is despicable. It has become a handy tool to the police officers who lack sensitivity or act with oblique motive,” it said.
The apex court said that failure of police officials will be liable for department proceedings and amount to contempt of court for not complying with its direction.
It said, “Authorising detention without recording reasons as aforesaid by the judicial magistrate concerned shall be liable for departmental action by the appropriate High Court.”
“Our endeavour in this judgement is to ensure that police officers do not arrest accused unnecessarily and magistrate do not authorise detention casually and mechanically,” it said.
The apex court said a person accused of offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years with or without fine, cannot be arrested by the police officer only on its satisfaction that such person had committed the offence.
It said police officer before arrest, in such cases has to be further satisfied that such arrest is necessary to prevent such person from committing any further offence or for proper investigation of the case or to prevent the accused from causing the evidence of the offence to disappear.
“Law further requires the police officers to record the reasons in writing for not making the arrest. In pith and core, the police office before arrest must put a question to himself, why arrest? Is it really required? What purpose it will serve? What object it will achieve?
“It is only after these questions are addressed and one or the other conditions as enumerated above is satisfied, the power of arrest needs to be exercised. In fine, before arrest first the police officers should have reason to believe on the basis of information and material that the accused has committed the offence,” the bench said.
“We are of the opinion that if the provisions of Section 41 CrPC which authorises the police officer to arrest an accused without an order from a magistrate and without warrant are scrupulously enforced, the wrong committed by the police officers intentionally or unwittingly would be reversed and the number of cases which come to the court for grant of anticipatory bail will substantially reduce,” the bench said.