Men’s Rights activist have been fighting against abuse of IPC 498A for about twenty years. Amendment to section 41 of CrPC was made through The Code of Criminal Procedure Amendment Bill 2010.
The salient points of the bill are:-
- To make police officer duty bound to not only record his reason for making an arrest , but also for not making arrest under sec 41.
- To substitute the word may in section 41A by word shall.
- To add a proviso in section 41A, whereby police could arrest a person if he fails to comply with the terms of notice or is unwilling to identify himself during issuance of a notice of appearance by the police.
The object of the bill was to end arbitrariness of police, stress the importance of investigation, issue of notice of appearance and introduce transparency in the system.
However police continued arrests in IPC 498A unabated.
A turning point came when in an appeal filed by Arnesh Kumar of Bihar challenging the criminal cases registered against him and his family members by his estranged wife in a matrimonial dispute, the bench of Supreme Court comprising of Justices C K Prasad and P C Ghosh asked police and magistrates to desist from mechanical arrests and detention, specifically mentioning that IPC’s Section 498A.
The Hon’ble court observed that: – “The fact that Section 498A 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 a 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 grandfathers and grandmothers of the husbands, their sisters living abroad for decades are arrested,”
“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.” The court drew a distinction between the “existence of power” and the “justification to exercise it”.
The Hon’ble court the following guidelines about arrests :-
- All state governments shall instruct police officers not to automatically arrest when a case under Section 498A, IPC, is registered
- The police must satisfy themselves about the necessity for arrest. The parameters for arrest are laid down in Section 41, CrPC
- All police officers must be provided with a checklist of sub-clauses under Section 41(1)(b)(ii). The sub-clauses say an officer needs to satisfy himself or herself that only detention can prevent another offence or inducements/threats to the complainant or ensure proper investigation or avert destruction of evidence or ensure the presence of the accused in court
- While producing the accused before the magistrate, the police officer should file the checklist and furnish the reasons and materials that necessitated the arrest
- The magistrate should peruse the report furnished by the police and order detention only after recording his or her satisfaction
- If an accused is not arrested, that reason should also be forwarded to the magistrate within two weeks from the date of the institution of the case. This may be extended by the SP but the reasons must be recorded in writing
- The accused should be asked to appear for questioning within two weeks from the date of institution of the case. This also may be extended by the SP but the reasons should be recorded in writing.
- Failure to comply will invite departmental action against the police officers as well as contempt proceedings in the high court concerned
- Magistrates who authorise detention without recording the reasons will face department action by the high court.
However a lot still needs to be done to end this dangerous game of legal terrorism and extortion.