Although most of the time I see that the people joining men’s forums are not getting arrested upon 498A FIR, there are a few who have been arrested. I think they are aware of the SC judgment against arbitrary arrest in 498A, but haven’t taken any action against police/magistrate after that. The Arnesh Kumar SC judgment is already blogged here which gives full judgment text of “no automatic arrests in 498A” judgment by Supreme Court on Jul 2, 2014. This post is meant for anyone who got arrested under 498A after Jul 2, 2014, and wants to do something about it.
After the above judgment has come into force, based on my assessment from calls received, the number of arrests under 498A seem to have come down by 70-80% at least. We cannot be sure of the exact statistics until NCRB (National Crime Records Bureau) releases its update of crime statistics which incorporate data after Jul 2014. It’s also possible that in some states like West Bengal, Bihar, Jharkhand, many of the falsely accused don’t call men’s rights helplines, so with lower awareness of citizens’ rights the number of arrests may be more; and also we don’t get to hear about many of those arrests.
Below, I give the main points from SC judgment, and basic scenarios how police may behave after 498A FIR is filed; and how to complain to authorities if you were unjustifiably arrested after filing of IPC 498A case after Jul 2, 2014. Note that it is possible that along with IPC 498A there was another IPC section in complaint which has more than 7 years punishment, so the SC judgment on 498A/7 years limit may not be applicable.
(1) All the State Governments to instruct its police officers not to automatically arrest when a case under Section 498-A of the IPC is registered but to satisfy themselves about the necessity for arrest under the parameters laid down above flowing from Section 41, Cr.PC;
(2) All police officers be provided with a check list containing specified sub-clauses under Section 41(1)(b)(ii);
(3) The police officer shall forward the check list duly filed and furnish the reasons and materials which necessitated the arrest, while forwarding/producing the accused before the Magistrate for further detention;
(4) The Magistrate while authorising detention of the accused shall peruse the report furnished by the police officer in terms aforesaid and only after recording its satisfaction, the Magistrate will authorise detention;
(5) The decision not to arrest an accused, be forwarded to the Magistrate within two weeks from the date of the institution of the case with a copy to the Magistrate which may be extended by the Superintendent of police of the district for the reasons to be recorded in writing;
(6) Notice of appearance in terms of Section 41A of Cr.PC be served on the accused within two weeks from the date of institution of the case, which may be extended by the Superintendent of Police of the District for the reasons to be recorded in writing;
Now after the above 6 points, follow the main points (7) and (8) in the Arnesh Kumar SC judgment (the headlines are mine, not part of judgment), which defined what action can be taken against police or magistrate or both of them.
Penal actions on police for arbitrary arrests under IPC 498a (and other offences up to 7 years punishment)
(7) Failure to comply with the directions aforesaid shall apart from rendering the police officers concerned liable for departmental action, they shall also be liable to be punished for contempt of court to be instituted before High Court having territorial jurisdiction.
Penal actions on magistrates for routinely allowing arrests without scrutiny
(8) Authorising detention without recording reasons as aforesaid by the judicial Magistrate concerned shall be liable for departmental action by the appropriate High Court.
So what you need to do is check if the points (1) to (6) were followed or not fully. If not, then using points (7) and (8) above you can approach senior police or high courts against police and magistrates for action against them. Below is how various combination of scenarios will work out in any 498A case.
Possible scenarios after 498A FIR is filed with respect to police and CrPC 41, 41A
1. Happy scenario of law abiding police: Police follows CrPC 41 and 41A procedures, and sends notice of appearance under CrPC 41A to accused husband/his family. This seems to be happening in most of cases these days. If the accused cooperate, the police cannot do anything except call them maybe couple of times and take their statement etc.
2. Law abiding police, but accused go into hiding: Police follows CrPC 41 and 41A procedures, and sends notice of appearance to accused husband/his family. The accused husband/family lose nerve fearing arrest, and instead of complying with notice, they go absconding trying to get an anticipatory bail in the meantime. As per law (don’t ask me about the CrPC sections, I am not studying to become a lawyer), they can be declared absconders from law. If they get anticipatory bail while absconding, well and good, but if they don’t, then they will have no choice left but appear in front of court and surrender, and hope to get bail same day or else get remanded to judicial custody. In most places, people get bail after 3 days maximum but in few dark corners of India where men’s rights has not penetrated fully, it may happen only after 14-15 days.
3. Police follows oppressive tactics: Police does not follow CrPC 41 and 41A procedures, and arrest husband/family members arbitrarily and without reason, and police has no good evidence to show to court why arresting the accused was necessary. Now when the accused are produced in front of magistrate, the magistrate has to look at the 6 points given above in Arnesh Kumar SC judgment, and if those points were not followed, then point (7) of the judgment can be used against police. The magistrate finds from the records given by police that they did not follow the CrPC 41A procedure, and grants bail to accused, and also orders for departmental action against police personnel. In fact, in order pasted at end of post, the Punjab and Haryana HC has done exactly that and started departmental action against police personnel by following point (7) of judgment.
4. Police oppressive, magistrates sleeping on job: Same scenario as in point 3 above, where police does not follow CrPC 41 and 41A procedures, and arrest husband/family members arbitrarily and without reason, and police has no good evidence to show to court why arresting the accused was necessary. But what happens now is that the magistrate also does not do the job as he is expected to do, and does not check whether police recorded reasons for arrest, and/or whether the reasons recorded for arrest were justified or not. Now in this case, both police and magistrate have failed and they are both liable for penal action against them. Now along with point (7) against police, point (8) against magistrate will also come into play.
How to initiate action against police or magistrate
1. The complaint against police will lie as both a departmental action started by senior police officers, and a contempt of court complaint in high court having jurisdiction over the police station. One should start with departmental action at the least.
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2. The complaint against magistrate can be filed to the High court registrar/administrative department of high court having jurisdiction over magistrate’s court.
Lastly, the Arnesh Kumar SC judgment is applicable for all offences with punishment upto 7 years, not just IPC 498a. So its scope is much wider and it is really against arbitrary exercise of power of arrest by police and it’s routine authorisation by judiciary rather than just misuse of 498A.
Real life example of action against police personnel for arbitrarily arresting 498A accused
Following is a real example of a departmental action taken against police for having routinely arrested a person under 498A. In this case, the judge while granting bail also made DCP, Panchkula responsible to start departmental action against the police persons who arrested this person without filing the checklist of requirements of CrPC 41A. If the DCP doesn’t take any action, then they will become liable for contempt of high court as per order below.