Sep 29, 2023

Madhya Pradesh High Court Reminds Police to Comply with the Arnesh Kumar Guidelines and not Automatically Arrest in S.498-A cases

To protect a woman from violence and abuse, Section 498-A of the Indian Penal Code codifies any act of cruelty committed by the husband or relatives of the husband as a cognizable crime with imprisonment of 3 years or more and a fine. While this is of utmost importance in the current scenario of increasing incidents of violence against women, weaponising this provision for frivolous and false cases is also a reality. In 2014, the Supreme Court of India had issued a set of Guidelines to safeguard against such unfair arrests and detentions stemming from section 498-A IPC cases.

 Last week, the Madhya Pradesh High Court directed the police and the lower courts in the state to strictly comply with these Guidelines and arrests be made only after the necessity of such a step is established. In this weekly, we’ll discuss when one can get arrested under section 498-A cases and what are the defenses against such arrests. 

What is a crime of cruelty?

Any act which can inflict grave injuries to the physical or mental health of a woman or drive a woman to commit suicide or harass or torture her with demands of dowry will be considered as cruelty under this provision. 

Who can file a complaint of cruelty?

Any married woman suffering from abuse and violence can file a complaint under section 498-A of the IPC against her husband or any other marital relatives. However, only women and more precisely married women can lodge a complaint under this section. In 2009, Koppisetti Subbarao v. State of  A.P (2009), the Supreme Court clarified that while live-in partners and girlfriends do not come under the purview of this section, it is not limited to only women who have legally valid marriage but also extends to women who have entered into some form of marriage as per local customs and traditions. A relative of a married woman can also raise a complaint on her behalf. 

Whom can a section 498-A complaint be brought against?

A complaint of cruelty under this section can be raised against one’s husband or any relative, related to her by blood, marriage or adoption. For example, father, mother, daughter, son, sister, brother, nephew, niece, brother’s wife, sister’s husband etc. 

What are the punishments for the crime of cruelty?

To reinstate the seriousness of this crime, a complaint under this section has been made a cognizable and non-bailable offence. This means that a police officer can arrest an accused under this provision without any warrant and only a court of law may grant bail. Cruelty can be penalised with a jail time of 3 years or more and a fine. Besides this, the cruelty is also recognised as a ground for divorce in India and the court may also order the husband to maintain the survivor and her children, if any. 

What are the checks and balances that the Supreme Court has prescribed in case of arrest under section 498-A?

In 2014, the Supreme Court enlisted a set of Guidelines in the case of Arnesh Kumar Vs. State of Bihar & Anr so that “unnecessary and casual arrests” are prevented. The crux of the Guidelines are;

  • The police must not automatically arrest upon receiving a complaint of section 498-A and only do so after being satisfied that it is necessary. 
  • The Magistrate while authorising the detention by the Police must record the reasons for doing so and only pass an order of authorisation after being satisfied that it is necessary on the basis of the police report furnished. 

The Guidelines have been discussed in detail here

What has the Supreme Court said now?

In July this year in the Md. Asfak Alam vs. The State of Jharkhand & Anr. ( 2023), the Supreme Court has directed all High Courts to issue circulars and notifications to all lower courts and police authorities to ensure stricter compliance to the Arnesh Kumar Guidelines. Pursuant to this direction, the Madhya Pradesh High Court issued a circular for all Sessions Court and Criminal Court and Police officers in the state to take the following steps: 

  1. The Police should only arrest once satisfied that it is absolutely necessary as per the law of arrest for cognizable crimes. 
  2. All police officers must be provided with a checklist containing specific provisions under which you can arrest. 
  3. The police officer shall forward the checklist duly filled and furnish the reasons and materials which necessitated the arrest to the Magistrate.
  4. The Magistrate must only authorise detention after deeming the detention necessary upon considering the police report thoroughly. 
  5. If the police decides to not arrest in a case, such decisions and grounds thereof must be sent to the Magistrate within two weeks.
  6. Notice of appearance must be served on the accused within two weeks from the date of institution of the case. The Superintendent might extend this citing due reasons. 
  7. Failure to comply with these directions will make the police officers liable for departmental action and can also be punished for contempt of court .
  8. A Magistrate may also be subjected to legal action if they authorise an order of detention without recording the due reasons. 

While these Guidelines are reflective of the Arnesh Kumar Guidelines, the current circular also emphasises that these will be applicable to all such offences wherein the prescribed jail time is seven years or less and not just to section 498-A matters.