Arrest of police officer in unlawful detention under s 498A

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Due to phenomenal increase in matrimonial dispute the Supreme Court in Arnesh Kumar vs State of Bihar & Anr 2014 have passed an order sentencing arrest of police officer for every unlawful detention under section 498A of Indian Penal Code (IPC). The prime objective of s 498A IPC was to combat the menance of the harassment of wife at the hand of her husband or her relative. S 498A was a means to an end of inhumane treatment against woman and therefore sensing the gravity of the offence s 498A constructed cognizable and non-bailable but unfortunately the cause in the course of time has lost it purpose and it has been used more as a weapon than as a shield by disgruntle wives and constantly for one purpose or another husband and his relatives were harassed under this provision. In a report published by National Crime Record Bureau ‘Crimes in India 2012 statistics’ in year 2012, 1,97,762 person all over the India have been arrested u/s 498A of which more than quarter of them were women. It accounts for more than 4.5% of the total crime committed under different sections of Indian Penal Code.

The offence u/s 498A provides for a maximum imprisonment for a term which may be extended upto seven years, with or without fine. However, from the plain reading of s 41(1)(b) CrPC it may be incurred that the 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 police officer only on its satisfaction that such person had committed the offence punishable as mentioned in the code. The police officer before arrest of the accused must satisfy 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 altering the evidence; or to prevent such person from making any inducement, threat or promise to a witness so as to dissuade him from disclosing such facts to the court or the police officer; or unless such police officer is arrested his presence in the court cannot be produced. The main purpose such a restriction on the power of arrest of police officer is that, the police officer before making the arrest must put the question to himself, why arrest? Is it really required? What purpose will it serve? What object will it achieve? Only after satisfaction of such a question the police officer shall exercise its power of arrest.

In Anwar Kumar vs State of Bihar 2014 the apex court ensured that police officer do not arrest accused unnecessarily and Magistrate do not authorise detention casually and mechanically and thus directed the state govt to instruct its police officer not to automatically arrest when a case u/s 498A IPC is registered but to satisfy themselves about the necessarily for arrest under the parameters laid down in s 41 CrPC. Notice of appearance shall be served within two week from the date of registration of the case and only after failure of such terms the accused shall be arrested.

The Supreme Court ordered of departmental action against the police officer on the failure to comply with the provision directed in Anwar Kumar case. The police officer may also be arrested for constant disobeying the order of the hon’ble court. It was also stated that authorising unnecessary detention without recording the reason by Magistrate may welcome adverse consequences for the Magistrate.