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Section 498-A IPC: Guidelines to arrest

Section 498-A of the Indian Penal Code, 1860 is a criminal offence to combat domestic violence andWhoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.” The offence of cruelty under section 498-A is cognizable, non-bailable and non-compoundable.
protect women from dowry harassment. Section 498-A reads as “

Section 498-A was inserted in the year 1983 with the intention of protecting women from marital violence, abuse and dowry demands. But unfortunately, the formulation of this law left a host of loopholes for exploitation and abuse. The wives and daughter-in-law started misusing this law for their personal gains and grudges. There have been countless instances where, without any investigation, the police has arrested elderly parents, unmarried sisters, sister-in-laws and even young children. In these cases unsuspecting family of husband has to go through a lot of mental torture and harassment by the Indian legal system.

Supreme Court in the case of Sushil Kumar Sharma v. Union of India (2005) has condemned 498A as “Legal Terrorism”, though ruling 498A constitutional.

Recently in the case of Arnesh Kumar vs. State of Bihar & Anr. (2014) Supreme Court recorded the rampant abuse of sec. 498-A. Supreme Court observed “Section 498-A of the IPC was introduced with avowed object to combat the menace of harassment to a woman at the hands of her husband and his relatives. The fact that Section 498-A 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. 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.”

So, in order to prevent unnecessary arrest and causal and mechanical detention, the Court issued following directions to the police officers and Magistrates:

a) 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, CrPC;

b) All police officers be provided with a check list containing specified sub- clauses under Section 41(1)(b)(ii);

c) 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;

d) 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;

e) 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;

f) Notice of appearance in terms of Section 41A  of  CrPC  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;

g) 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.

h) Authorising  detention  without  recording  reasons  as  aforesaid  by   the judicial Magistrate concerned shall be liable  for  departmental  action  by the appropriate High Court.

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