Arnesh Kumar v State of Bihar

Cause title and case names

The short version

A husband sought anticipatory bail after his wife accused him and his parents of dowry demands. Both the Sessions Judge and the Patna High Court refused. The Supreme Court gave him bail, and then used his appeal to deal with something bigger.

The Court said police must not arrest only because an offence is cognizable and non-bailable. For offences punishable with up to seven years, the officer has to record reasons for arrest, and the Magistrate has to check them before sending anyone to custody. The directions cover every such offence, not just Section 498A.

What the case was about

Arnesh Kumar married Sweta Kiran on 1 Jul 2007. She alleged that his parents demanded Rs 8 lakh, a Maruti car, an air-conditioner and a television. She said her husband backed his mother, threatened to marry another woman, and that she was driven out of the matrimonial home. He denied all of it.

The case was registered under Section 498A of the Indian Penal Code and Section 4 of the Dowry Prohibition Act, 1961. Fearing arrest, he applied for anticipatory bail. The Sessions Judge refused. The High Court refused too. The judgment as reported does not give the dates of the FIR or of either refusal.

The Court used the case to look at a wider habit. Section 498A is cognizable and non-bailable, and the Court noted that arrest had become a routine first step. The judgment treats that as a problem for the person arrested and for the way the law is meant to work.

Who was involved

Issues before the Court

1. Can the police arrest automatically in a cognizable and non-bailable case such as Section 498A?
2. What do Sections 41 and 41A of the Code of Criminal Procedure require before an arrest?
3. What must a Magistrate check before authorising detention under Section 167 CrPC?

How it reached the Supreme Court

The appellant was refused anticipatory bail by the Sessions Judge and then by the High Court of Judicature at Patna. He came to the Supreme Court by special leave petition. The Court granted leave and, by an order of 31 Oct 2013, gave him provisional bail on conditions. The final judgment made that bail absolute.

The bench

What the Court held

• No arrest should be made only because the offence is cognizable and non-bailable. The officer must first ask why the arrest is needed.
• For offences punishable with up to seven years, Section 41(1)(b) requires the officer to be satisfied that arrest is necessary, for example to prevent further offences, to investigate properly or to stop evidence being tampered with. The reasons go in writing.
• State Governments must tell their police not to arrest automatically in Section 498A cases, and must give them a checklist of the Section 41(1)(b)(ii) conditions.
• When the accused is produced before a Magistrate, the police must send the filled checklist with the reasons and materials. The Magistrate must read it and record satisfaction before authorising detention. The police officer's word alone is not enough.
• Where arrest is not needed, the decision must reach the Magistrate within two weeks of the case being registered. A Section 41A notice of appearance must also be served within two weeks. The Superintendent of Police can extend this with written reasons.
• Police who do not comply face departmental action and contempt proceedings in the High Court. A Magistrate who authorises detention without recording reasons faces departmental action by the High Court.
• These directions apply to all offences punishable with up to seven years, with or without fine. They reach well past Section 498A and the Dowry Prohibition Act.
• The appeal was allowed. A copy of the judgment was sent to the Chief Secretaries and Directors General of Police of all States and Union Territories, and to the Registrars General of the High Courts.

What changed afterwards

In Rajesh Sharma v State of Uttar Pradesh (27 Jul 2017), a bench led by Khehar CJI went further. It directed district-level Family Welfare Committees to look at every Section 498A complaint, and said arrests should normally wait for their report. The Court noted that the Arnesh Kumar safeguards had only partly worked.

On 14 Sep 2018, in Social Action Forum for Manav Adhikar v Union of India, a three-judge bench set that committee mechanism aside. Investigating officers were to be trained and guided by Joginder Kumar, Lalita Kumari and Arnesh Kumar. Arnesh Kumar remained the working rule on arrest.