Arnesh Kumar Guidelines or Arnesh Kumar vs State of Bihar (2014) is a landmark judgement of the Indian Supreme Court, stating arrests should be an exception, in cases where the punishment is less than seven years of imprisonment. The guidelines asked the police to determine whether an arrest was necessary under the provisions of Section 41 of the Criminal Procedure Code (CrPC). Police officers have a responsibility to guarantee that the principles established by the Supreme Court in its numerous decisions are followed by the investigating officers. Before authorising further detention, the judicial magistrate must read the police officer's report and make sure they are satisfied
Legal proceedings can be initiated against the police officials if the procedure for arrest under Section 41A CrPC and Arnesh Kumar Guidelines are violated.
BACKGROUND OF JUDGEMENT
In 1983, Section 498A was enacted, together with Section 304B on dowry deaths, to combat the threat of rising dowry deaths and violence against married women by their in-laws.
In 2010, the Supreme Court asked the government to amend the dowry law to stop its misuse. The dowry laws, particularly the section 498A of the Indian Penal Code is observed by many in India as being prone to misuse because of mechanical arrests by the police. The criticism of these laws have been growing. According to the National Crime Records Bureau statistics, in 2012, around 200,000 people including 47,951 women, were arrested in dowry related cases but only 15% of the accused were convicted. The period between 2006 and 2015, has seen a continuous fall in the conviction rate for cases, filed under this section. It has the lowest conviction rate among all the crimes under Indian Penal Code.
In many cases of 498a, huge amounts of dowry are claimed without any valid reasoning. A low income household's wife can allege that she gave crores of money as dowry and since it is a cognizable case, police are bound to register the case. And in most cases, the capacity of the wife or her parents and the source of the funds are never tracked.
In 2005, Section 498A IPC was upheld by the Supreme Court of India when it was challenged. In 2010, the Supreme Court spoke about the misuse of anti-dowry laws in Preeti Gupta & Another v. State of Jharkhand & Another and more detailed investigation was recommended. Following the observations of the Supreme Court Indian parliament set up a committee headed by Bhagat Singh Koshyari.
JUDGEMENT
On 2 July 2014, the Supreme Court while framed the guidelines the response to a Special Leave Petition (SPL) filed by one Arnesh Kumar challenging his arrest and of his family under this law. In the case of Arnesh Kumar v. State of Bihar & Anr., a two-judge bench (Justice Chandramauli Kumar Prasad & Justice Pinaki Chandra Ghose) of the Supreme Court reviewed the enforcement of section 41(1)(A) of CrPC which instructs state of following certain procedure before arrest. The bench observed that the Section 498A had become a powerful weapon for disgruntled wives, where innocent people were arrested without any evidence due to non-bailable and cognizable nature of the law. The Supreme Court said that the anti dowry law (Section 498A) is being used by some women to harass their husband and in-laws. The court prohibited the police from making arrests on the mere basis of a complaint. The court asked the police to follow Section 41 of the Code of Criminal Procedure, 1973, which provides a 9-point checklist which must be used to decide the need for an arrest. The court also said that a magistrate must decide whether an arrested accused is needed to be kept under further detention.
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CrPC Section 41 : When police may arrest without warrant.
(1) Any police officer may without an order from a Magistrate and without a warrant, arrest any person—
(a) who commits, in the presence of a police officer, a cognizable offence;
(b) against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years whether with or without fine, if the following conditions are satisfied, namely:—
(i) the police officer has reason to believe on the basis of such complaint, information, or suspicion that such person has committed the said offence;
(ii) the police officer is satisfied that such arrest is necessary—
(a) to prevent such person from committing any further offence; or
(b) for proper investigation of the offence; or
(c) to prevent such person from causing the evidence of the offence to disappear or tampering with such evidence in any manner; or
(d) to prevent such person from making any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to the police officer; or
(e) as unless such person is arrested, his presence in the Court whenever required cannot be ensured,
and the police officer shall record while making such arrest, his reasons in writing:
Provided that a police officer shall, in all cases where the arrest of a person is not required under the provisions of this sub-section, record the reasons in writing for not making the arrest.
(ba) against whom credible information has been received that he has committed a cognizable offence punishable with imprisonment for a term which may extend to more than seven years whether with or without fine or with death sentence and the police officer has reason to believe on the basis of that information that such person has committed the said offence;
(c) who has been proclaimed as an offender either under this Code or by order of the State Government; or
(d) in whose possession anything is found which may reasonably be suspected to be stolen property and who may reasonably be suspected of having committed an offence with reference to such thing; or
(e) who obstructs a police officer while in the execution of his duty, or who has escaped, or attempts to escape, from lawful custody; or
(f) who is reasonably suspected of being a deserter from any of the Armed Forces of the Union; or
(g) who has been concerned in, or against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists, of his having been concerned in, any act committed at any place out of India which, if committed in India, would have been punishable as an offence, and for which he is, under any law relating to extradition, or otherwise, liable to be apprehended or detained in custody in India; or
(h) who, being a released convict, commits a breach of any rule made under sub-section (5) of section 356; or
(i) for whose arrest any requisition, whether written or oral, has been received from another police officer, provided that the requisition specifies the person to be arrested and the offence or other cause for which the arrest is to be made and it appears therefrom that the person might lawfully be arrested without a warrant by the officer who issued the requisition.
(2) Subject to the provisions of section 42, no person concerned in a non-cognizable offence or against whom a complaint has been made or credible information has been received or reasonable suspicion exists of his having so concerned, shall be arrested except under a warrant or order of a Magistrate.
41A. Notice of appearance before police officer.—(1) The police officer shall], in all cases where the arrest of a person is not required under the provisions of sub-section (1) of section 41, issue a notice directing the person against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence, to appear before him or at such other place as may be specified in the notice.
(3) Where such person complies and continues to comply with the notice, he shall not be arrested in respect of the offence referred to in the notice unless, for reasons to be recorded, the police officer is of the opinion that he ought to be arrested.
(4) Where such person, at any time, fails to comply with the terms of the notice or is unwilling to identify himself, the police officer may, subject to such orders as may have been passed by a competent Court in this behalf, arrest him for the offence mentioned in the notice.
41B. Procedure of arrest and duties of officer making arrest.—Every police officer while making an arrest shall—
(a) bear an accurate, visible and clear identification of his name which will facilitate easy identification;
(b) prepare a memorandum of arrest which shall be—
(i) attested by at least one witness, who is a member of the family of the person arrested or a
respectable member of the locality where the arrest is made; (ii) countersigned by the person arrested; and
(c) inform the person arrested, unless the memorandum is attested by a member of his family, that he has a right to have a relative or a friend named by him to be informed of his arrest.
Where such a notice is issued to any person, it shall be the duty of that person to comply with the terms of the notice.
41C. Control room at districts.—(1) The State Government shall establish a police control room—
(a) in every district; and
(b) at State level.
(2) The State Government shall cause to be displayed on the notice board kept outside the control rooms at every district, the names and addresses of the persons arrested and the name and designation of the police officers who made the arrests.
(3) The control room at the Police Headquarters at the State level shall collect from time to time, details about the persons arrested, nature of the offence with which they are charged and maintain a database for the information of the general public.
41D. Right of arrested person to meet an advocate of his choice during interrogation.—When any person is arrested and interrogated by the police, he shall be entitled to meet an advocate of his choice during interrogation, though not throughout interrogation.]
