The Supreme Court yesterday laid down new directions making police officers and judicial magistrates liable for departmental action and contempt proceedings for making “scurrilous” arrests and ordering “routine” detention under Section 498A of the IPC or under Section 4 of the Dowry Prohibition Act.

Justices CK Prasad and PK Ghose, allowing a man Arunesh Kumar’s criminal appeal for anticipatory bail under Section 498A, said that the new directions will apply not just to arrests and detention under Section 498A and Section 4, but also to any other penal provision for imprisonment up to seven years.

The bench used the “Crime in India 2012 Statistics” published by the National Crime Records Bureau of the Ministry for Home Affairs to point out:

“The fact that Section 498-A 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.”

According to the statistics, 6 per cent (1,97,762) of total arrests made in 2012 were under Section 498A, the rate of chargesheeting under the section was 93.6 per cent while the conviction rate was only 15 per cent and out of the 3,72,706 cases pending trial 3,17,000 are likely to result in acquittal.

The bench said that the reason for these statistics was the abuse of the power to arrest by the police and the improper exercise of the power to detain by the magistrates. Under Section 41 of the CrPC the police can only arrest if satisfied that such arrest is needed to conduct proper investigation or to prevent evidence and witness tampering, or to prevent the accused from absconding. The police are required to record facts which fulfill either of these conditions under Section 41 and forward to the magistrate who has to satisfy himself that the arrest made is legal.

But police presently arrest on a mere complaint being made and mechanically reproduce Section 41 clauses as “reasons for arrest”, while the magistrate authorizes detention “in a routine, casual and cavalier manner”, said the bench.

It therefore laid down eight new directions:

• · State governments are to instruct police officers against routine arrests under Section 498A and to fulfill conditions under Section 41 of the CrPC
• · Provide a checklist of Section 41 sub clauses to all police officers
• · That checklist should be filled and appended with reasons and materials to support arrest, and forwarded by police officers to magistrates
• · Magistrates will peruse this forwarded report and record their satisfaction before ordering detention
• · The decision not to arrest an accused, with written reasons for the same, will be forwarded to the magistrate within two weeks from the date of the institution of the case
• · Notice of appearance in terms of Section 41A of Cr.PC will be served on the accused within two weeks from the date of institution of the case, with written reasons
• · Police officers will be liable for departmental action and punishable for contempt by the high court for failure to comply with these directions
• · Magistrates authorizing detention without recording reasons will be liable for departmental action by the high court

Read the full judgement