amit kumar choubey (Advocate) 17 August 2008

Is there any Judgement

Respected All,

Is there any recent Supreme Court or High Court Judgement related to dowery case where police needs higher authorities order to arrest the husband or immediate family members.

If any then need your help.

Regards,

Amit Choubey

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3 Replies

kirankumar (Part time Employee/ student of BL) 21 February 2009

Madras High Court had given in 2007

where police needs higher authorities order to arrest the husband or immediate family members

kirankumar (Part time Employee/ student of BL) 21 February 2009

The former Chief Justice Of India, M.N. Venkatachalliah, in this landmark judgment (JOGINDER KUMAR Vs. STATE OF U.P, 25/04/1994), defined the powers of the police to arrest a person. This judgment especially applies in the case of a cognizable offence such as 498A. He stated that:

“No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest apart from his power to do so. Arrest and detention in police lock-up of a person cause incalculable harm to the reputation and self–esteem of a person. 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 for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own

interest that no arrest should be made without a reasonable satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person’s complicity and even so as to the need to effect arrest. Denying a person of his liberty is a serious matter.

There are significant other requirements that need to be fulfilled for an arrest. These are:

1. The case involves a grave offence like murder, dacoity, robbery, rape etc., and it is necessary to arrest the accused and bring his movements under restraint to infuse confidence among the terror stricken victims.2. The accused is likely to abscond and evade the processes of law.

3. The accused is given to violent behavior and is likely to commit further offences unless his movements are brought under restraint.

4. The accused is a habitual offender and unless kept in custody he is likely to commit similar offences again. It would be desirable to insist through departmental instructions that a police officer making an arrest should also record in the case diary the reasons for making the arrest, thereby clarifying his conformity to the specified guidelines.

In yet another judgment dated 22.8.2004 (Criminal Misc.Writ Petition No.4861 of 2000, Ajeet Singh alias Muraha Vs. State of U.P. and others), Supreme Court Justice Markandeya Katju, while serving as a judge on the Allahabad High Court, had the following to say:

(1) If, from information received or otherwise, an officer in charge of a police station has reason to suspect the commission of an offence which he is empowered under section 156 to investigate, he shall forthwith send a report of the same to a Magistrate empowered to take cognizance of such offence upon a police report and shall proceed in person, or shall depute one of his subordinate officer not being below such rank as the State Government may, by general or special order, prescribe in this behalf to proceed, to the spot to investigate the facts and circumstances of the case and if necessary to take measures for the discovery and arrest of the offender."

The above provision clearly shows that it is not necessary to arrest in every case wherever a FIR of cognizable offence has been registered. No doubt investigation has to be made in every case where a cognizable offence is disclosed but in our opinion investigation does not necessarily include arrest. Often the investigation can be done without arresting a person, and this legal position becomes clear from section 157(1) of the Cr.P.C. because that provision states that the Police Officer has to investigate the case, and, if necessary, to take measures for the arrest of the offender. The use of words ' if necessary' clearly indicates that the Police Officer does not have to arrest in every case wherever FIR has been lodged and this position has been clarified in Joginder Kumar's case (supra).

In our country unfortunately whenever an FIR of a cognizable offence is lodged the police immediately goes to arrest the accused. This practice in our opinion is illegal as it is against the decision of the Supreme Court in Joginder Kumar's case, and it is also in violation of Article 21 of the Constitution as well as section 157 (1) Cr.P.C. No doubt section 157(1) Cr.P.C. gives a police officer discretion to arrest or not, but this discretion cannot be exercised arbitrarily and it must be exercised in accordance with the principles laid down in Joginder Kumar's case (supra).”

The police will say that 498A is a cognizable offence. By cognizable, it means they have to REGISTER an FIR and INVESTIGATE, not arrest the accused immediately. Think about it. If a king has been stripped of his power to arrest without cause 800 years ago, how can the police in a democracy claim to have that power?

Keeping these judgments in mind, I am interested in seeing how a grandmother or a grandfather, young nieces and nephews, married and unmarried sisters and parents, without a prior criminal record, can fall into any of the categories described by Justice M.N. Venkatachalliah.

To summarize, the police have discretionary powers to arrest, but they need to justify the arrest and Supreme Court and High Courts judgments have established that some investigation must be done before an arrest is made and even then, only if necessary.

The Late Justice AN Mulla (A former Judge of the Allahabad HC and author of the Mulla Committee on prison reform) said:

“I say it with all sense of responsibility that there is not a single lawless group in the whole country whose record of crime is anywhere near the record of that organized unit which is known as the Indian Police Force.”

Keeping the words of Justice AN Mulla in mind, and knowing that the police have been granted wide discretionary powers to arrest, be prepared for an arrest by the police.

If they do arrest you, they need to respect your rights and treat you professionally and with courtesy. Later on, you may seek redress in the form of contempt of court, writ mandamus, Habeas Corpus, compensation for illegal detention, etc.

Read on to understand what other safeguards the hon’ble courts of the country have set in place to protect you from the excesses of the police.

PALNITKAR V.V. (Lawyer) 21 February 2009

At least CrPC doesnt say that permission of higher officer is needed. However, the local Police Acts have defined powers of police officers. In Maharashtra, no police officer below the rank of a Head Constable has powers to arrest under a warrant. But that is limited to execution of arrest warrant. Otherwise any police officer can arrest any accused if he is found committing a cognizable offence or is trying to flee away after commission of crime. I am not aware what madras High Court has ruled. Similarly, the SC in the case of Joginder has laid down guidelines about arrest.