Calcutta High Court lays down norms for Section 498A arrests : Follow-up measure after directive issued by SC

Follow-up measure after directive issued by SC

TAPAS GHOSH, DEBRAJ MITRA | TT  |  30.08.23 : Police should not make unnecessary arrests while dealing with cases under Section 498A of the Indian Penal Code, Calcutta High Court has said in a notification.

Section 498A is a law that aims to protect women from harassment and torture by the husband and in-laws.

Magistrates should not authorise detention “casually and mechanically”, says the notification dated August 23 and signed by Calcutta High Court registrar-general Chaitali Chatterjee (Das).

In case of an arrest, the police should furnish a list of reasons. A magistrate should grant police custody of the accused only after being satisfied by the reasons cited by the cops, the notification says.

On Tuesday, court officials shared copies of the notification with reporters. The legal remembrancer of the state is entrusted with sharing the notification with the government. All police stations must have a copy of the notification, said a court official.

SC directive

The notification was issued in the wake of a Supreme Court judgment on July 31, quashing an order by Jharkhand High Court that denied anticipatory bail to a man charged under Section 498A.

The apex court had asked all high courts to issue guidelines for lower courts to deal with such cases.

The aim of the Supreme Court judgment is to “ensure that police officers do not arrest the accused unnecessarily and magistrates do not authorise detention casually and mechanically”, says the high court notification.

The apex court has ordered all 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”.

The CrPC section provides “for arrest by police on receiving a reasonable complaint/information or has reasonable suspicion of a cognizable offence having been committed, which is punishable with imprisonment of less than 7 years, or which may be extended to 7 years if the given set of conditions are satisfied”.

Checklist

All police officers have to be provided with a checklist containing specified sub-clauses under the section, says the high court notification.

The notification also says:

While producing the arrested person before a magistrate to seek custody, the police officer “shall forward the checklist duly filled and furnish the reasons and material which necessitated the arrest”

The magistrate “shall peruse the report... and only after recording its satisfaction... will authorize detention”

The decision not to arrest an accused must also be forwarded to the magistrate within two weeks from the date of the “institution of the case”. The decision “may be extended” by the district police superintendent and the reasons have to be recorded in writing.

Penalty

Failure to comply with the directives would make police officers concerned liable for “departmental action” as well as for punishment for “contempt of court”.

Similarly, allowing detention “without recording reasons” will make the “concerned judicial magistrate liable for departmental action by the appropriate high court”.

‘Elaborate’ list

Police sources in Kolkata said the notification has been circulated in the internal WhatsApp group of the officers in charge of the police stations.

“That the Supreme Court has said that arrest is not mandatory in 498A is not unknown. But what this notification has done is that it clearly states that any arrest in a dowry case needs an elaborate list of reasons, to be furnished by an officer and validated by a magistrate,” said an officer.

“Some complaints (under 498A) accuse elderly in-laws along with the husband. In such cases, we do not make arrests,” he said.

A 2018 advisory from the Union home ministry had asked all states to exercise restraint and be judicious while handling cases under Section 498A.