In a significant ruling, the Supreme Court said that the anti-dowry law is being increasingly used by women these days to harass in-laws and the apex court ordered police not to arrest the husband and his relatives on mere lodging of a complaint under Section 498A of the Indian Penal Code.
Citing very low conviction rate in such cases, it directed the state governments to instruct police “not to automatically arrest when a case under Section 498A of IPC is registered but to satisfy themselves about the necessity for arrest under the parameters provided under Section 41 of criminal procedure code”.
A bench of Justices C K Prasad and P C Ghose said if police arrested the accused, the magistrate should weigh the preliminary evidence against the Section 41 checklist before allowing further detention. The magistrate, while authorising detention of the accused shall peruse the report furnished by the police officer in terms of Section 41 and only after recording its satisfaction, the magistrate will authorize detention, the bench said.
It also said that this check-list for arrest and detention would apply to all offences, which are punished with a prison term less than 7 years. Punishment under Section 498A is a maximum of three years but it had been made a cognizable and non-bailable offence, which made grant of bail to the accused a rarity in courts.
Writing the judgment for the bench, Justice Prasad said there had been a phenomenal increase in dowry harassment cases in India in the last few years. “The fact that Section 498A 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,” he said.
“The simplest way to harass is to get the husband and his relatives arrested under this provision. In a quite number of cases, bed-ridden grand-fathers and grand-mothers of the husbands, their sisters living abroad for decades are arrested,” he said.
The bench quoted “Crime in India 2012 Statistics” published by National Crime Records Bureau to say that nearly 2 lakh people were arrested in India in 2012 under Section 498-A, which was 9.4% more than in 2011.
“Nearly a quarter of those arrested under this provision in 2012 were women i.e. 47,951 which depicts that parents,relatives and sisters of the husbands were liberally included in their arrest. Its share is 6% out of the total persons arrested under the crimes committed under Indian Penal Code. It accounts for 4.5% of total crimes committed under different sections of penal code, more than any other crimes excepting theft and hurt,” it said.
“The rate of charge-sheeting in cases under Section 498A is as high as 93.6%, while the conviction rate is only 15%, which is lowest across all heads. As many as 3,72,706 cases are pending trial of which on current estimate, nearly 3,17,000 are likely to result in acquittal,” the bench said illustrating the misuse of Section 498A as a tool to harass husband and his relatives.
Describing arrest as a humiliating experience apart from curtailing the freedom, the bench said police have not shed their colonial hangover despite six decades of independence and were still considered “as a tool of harassment, oppression, and surely not considered a friend of public”.
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 officer 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.
According to a statement issued by AIDWA, police officers are required to record the reasons for either arresting or not arresting the accused after registration of the FIR which are open to scrutiny by the court. Moreover, the arrest is usually done only after proper investigation in the reported matter.
The organisation also objected to the language used by the court saying that it was “demeaning of women who are subjected to extreme forms of violence”.
“We fear it will lend a handle to those retrograde forces in the country who are as it is pushing for weakening this section and making it compoundable and bailable,” the statement said.