Guidelines for arrest of Husband in cruelty cases issued by Calcutta HC; No automatic arrest

The Calcutta High Court issued a circular last week outlining arrest procedures to be followed by the State police and criminal tribunals, particularly in cases involving cruelty to wife under Section 498A of the Indian Penal Code (IPC) or the Dowry Act.

According to a notification issued by the Calcutta High Court on August 23, the High Court has ordered the State police to ensure that no individual is ‘automatically’ apprehended upon the filing of a Section 498A complaint.

“All the State Governments shall instruct their police officers not to automatically arrest when a case under Section 498-A is registered, but to satisfy themselves as to the necessity of arrest under the parameters derived from Section 41 of the Criminal Procedure Code (CrPC),” stated the notification.

The notification was issued after the Supreme Court ordered all High Courts on July 31 to formulate the directions issued in an earlier judgement in the Arnesh Kumar case as notifications and guidelines for sessions courts and other criminal courts to follow.

The Supreme Court had taken note of the widespread abuse of Section 498A provisions.

In its ruling, the highest court also instructed the directors general of police in all states to guarantee strict adherence to these guidelines.

The notification issued by the High Court pursuant to the same states that all police officers must be provided with a checklist containing specified subclauses under Section 41(1) (b)(ii), which details the procedure for arresting a person.

The notifications state, “The police officer shall forward the duly completed check list and provide the reasons and evidence for the arrest while forwarding/producing the accused before the Magistrate for further detention.”

Before authorising the detention of the defendant, the magistrate must investigate the police officer’s report and, only if he or she is satisfied, issue the detention order.

The guidelines state, “The decision not to arrest an accused shall be forwarded to the Magistrate within two weeks of the date of the institution of the case with a copy to the Magistrate. This period may be extended by the Superintendent of Police of the district for reasons to be recorded in writing.”

The accused must be served with a notice of appearance pursuant to Section 41A of the Criminal Procedure Code within two weeks of the date of the institution of the case, unless the Superintendent of Police of the district grants an extension for reasons recorded in writing.

“Any failure to comply with these directives will subject the offending police officers to departmental action and contempt of court charges to be brought before the High Court with territorial jurisdiction,” the notification explains.

Magistrates who authorise a detention without recording reasons would be subject to a similar sanction.

The High Court clarified that these guidelines will apply not only to cases under Section 498A or Section 4 of the Dowry Prohibition Act, but also to cases where the offence is punishable by imprisonment for a term of less than seven years or up to seven years, with or without fine.

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