Reiterating Arnesh Kumar guidelines, the SC ordered the High Courts and DGPs to strictly follow the guidelines

On 31 July 2023, the Supreme Court (SC) of India heard MD. Asfak Alam vs. The State of Jharkhand & Anr. case, where the bench reiterated the guidelines passed by the top Court for arrest under Section 498A of the IPC (Indian Penal Code) in its 2014 Arnesh Kumar judgment. These guidelines were also issued in context with the offences punishable by a maximum ail term of 7 years. The SC ordered, “Once the charge sheet was filed and there was no impediment, at least on the part of the accused, the court having regard to the nature of the offences, the allegations, and the maximum sentence of the offences they were likely to carry, ought to have granted the bail as a matter of course. However, the court did not do so but mechanically rejected and, virtually, to rub salt in the wound directed the appellant to surrender and seek regular bail before the Trial Court. Therefore, in the opinion of this court, the High Court fell into error in adopting such a casual approach. The impugned order of rejecting the bail and directing the appellant, to surrender and later seek bail, therefore, cannot stand, and is hereby set aside.” The matter was heard by a two-judge bench of the SC including Justice Aravind Kumar and Justice Ravindra Bhat. 

On 5.11.2020, the appellant (husband) and the respondent (wife) were married. The appellant alleged that the respondent was not happy with the marriage and her father used to interfere and pressurize him and his family. This resulted in various complaints lodged against the wife’s family for threatening the appellant’s family. The appellant apprehended arrest and applied for anticipatory bail under Section 438 of the Code of Criminal Procedure, 1973 before the Sessions Judge, that application was dismissed on 28.06.2022. The matter was then mentioned before the Jharkhand High Court by the appellant seeking anticipatory bail. The High Court protected the appellant with the interim order directing that he may not be arrested. Further, when the application was heard by the HC on 18.01.2023, without adverting, the pending anticipatory bail was rejected, and the HC went on to direct the appellant to surrender before the competent Court and seek regular bail. The matter was then mentioned before the SC.

The SC opined that “there are no startling features or elements that stand out or any exceptional fact disentitling the appellant to the grant of anticipatory bail. What is important is not that the matrimonial relationship soured almost before the couple could even settle down but whether allegations leveled against the appellant are true or partly true at this stage, which at best would be matters of conjecture, at least for Supreme Court. The appellant is directed to be enlarged on bail subject to such terms and conditions that the Trial Court may impose.” It also directed the HCs and police chiefs to issue notifications for the same and ensure strict compliance. The order reads, “The High Court shall frame the directions in the form of notifications and guidelines to be followed by the Sessions courts and all other and criminal courts dealing with various offences. Likewise, the Director General of Police in all States shall ensure that strict instructions in terms of the directions are issued. Both the High Courts and the DGPs of all States shall ensure that such guidelines and Directives/ Departmental Circulars are issued for the guidance of all lower courts and police authorities in each State within eight weeks from today. Affidavits of compliance shall be filed before this court within ten weeks by all the states and High Courts, through their Registrars.”

Reiterating Arnesh Kumar guidelines, the SC ordered the High Courts and DGPs to strictly follow the guidelines. The Supreme Court reminded that “Our endeavor in this judgment is to ensure that police officers do not arrest the accused unnecessarily and Magistrate do not authorize detention casually and mechanically. In order to, ensure what we have observed above, we give the following directions:” 

• “All the State Governments to instruct its police officers not to automatically arrest when a case under Section 498-A IPC is registered but to satisfy themselves about the necessity for arrest under the parameters laid down above flowing from Section 41 CrPC;” 
• “All police officers be provided with a check list containing specified sub-clauses under Section 41(1)(b)(ii);”
• “The police officer- shall forward the check list duly filled and furnish the reasons and materials which necessitated the arrest, while forwarding/producing the accused before the Magistrate for further detention;”
• “The Magistrate while authorizing 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 authorize detention;”
• “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;” 
• “Notice of appearance in terms of Section 41-A CrPC be served on the accused within two weeks from the date of institution of the case, which may be extended by the 10 Superintendent of Police of the district for the reasons to be recorded in writing;” 
• “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 the High Court having territorial jurisdiction.”
• “Authorizing detention without recording reasons as aforesaid by the Judicial Magistrate concerned shall be liable for departmental action by the appropriate High Court.”