The court held that arrests in all cases where the maximum punishment is up to seven years in jail cannot be made on a reasonable belief that the accused may have committed the offence. It said there has to be adequate material to show that the arrest was necessary to ensure proper investigation or to prevent the accused from committing any further offence or any act to influence the outcome of the case.
The order will affect various cases like dowry harassment, voluntarily causing hurt, domestic violence, wrongful confinement, assault or criminal force against a woman with intent to outrage her modesty, as well as other classes of assault and criminal force defined under the Indian Penal Code where the maximum punishment extends up to seven years in jail.
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, that the power of arrest needs to be exercised, said a bench led by Justice C K Prasad.
Citing the National Crime Records Bureau (NCRB) data to draw attention to the huge number of arrests made under Section 498A and other dowry harassment charges, the court said these provisions were being used as weapons, rather than shields, by disgruntled wives.
According to the NCRB, about two lakh people, including 50,000 women, were arrested under Section 498A in 2012. While the rate of chargesheeting the accused was as high as 93.6 per cent, only 15 per cent of the cases resulted in convictions. The bench noted that about 3.72 lakh cases of dowry harassment are currently pending, of which 3.17 lakh are likely to result in acquittals.
The bench directed all the state governments to issue directives to their police departments against making arrests mechanically, saying they should furnish the reasons why the arrest was necessary. The reasons will be examined by the magistrate, who will order further detention if there is sufficient material, it said.
The bench said both police officers and magistrates will face contempt charges and departmental action if they fail to comply with these guidelines.
The court said the power to arrest contributes to the arrogance of the police. Not only this, the power to arrest is one of the lucrative sources of police corruption... No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent and wise for a police officer that no arrest is made without a reasonable satisfaction reached after some investigation as to the genuineness of the allegation, it said.
Stating that the police department had failed to shed its colonial image despite six decades of independence, and its power to arrest is largely considered a tool of harassment and oppression, the court said, We believe that no arrest should be made only because the offence is non-bailable and cognizable... The need for caution in exercising the drastic power of arrest has been emphasised time and again by courts, but has not yielded the desired result. The attitude to arrest first and then proceed with the rest is despicable. It has become a handy tool to the police officers who lack sensitivity or act with oblique motive.