Calcutta High Court Issues Guidelines for Arrest to Address the Misuse of Section 498A

Introduction

Section 498A of the Indian Penal Code (IPC) was enacted in 1983 to protect women from cruelty and harassment by their husbands and in-laws. The section defines “cruelty” as any act or omission which is likely to cause physical or mental pain or suffering to a woman.

The section has been widely used by women to seek justice against their abusers. However, there have also been cases of misuse of the section, where women have filed false complaints against their husbands and in-laws in order to extort money or property from them. There are a number of reasons why Section 498A is being misused. One reason is that the law is very broad and does not require any specific act of cruelty to be committed. This means that women can file a complaint under Section 498A even if they have not been physically or mentally abused.

Another reason for the misuse of Section 498A is that the law provides for stringent punishment, including imprisonment up to three years. This makes it a very attractive option for women who are looking to get revenge on their husbands or in-laws. The misuse of Section 498A has had a number of negative consequences. It has led to the erosion of public trust in the law, and it has made it more difficult for genuine victims of domestic violence to get justice. It has also led to the arrest and imprisonment of innocent men.

The Calcutta High Court has issued a cicular bringing into light the guidelines which are to be followed by the State police machinery and the criminal courts while taking cognisance of a complaint under Section 498A of Indian Penal Code. The said guidelines come immediately after the very recent notification which had been issued by the Supreme Court on 31st July under which the apex court made it incumbent upon all the high courts to frame and issue directions which had been issued in the landmark case of Arnesh Kumar which shall monitor the conduct of the police machinery and the state judiciary over matters related to cruelty.

Calcutta High Court’s Directions for Arrest to Address the Misuse of Section 498A

“In pursuance of the direction of the Hon’ble Supreme Court of India, contained in the Judgment dated 31.07.2023 passed in Criminal Appeal No. 2207 of 2023 arising out of SLP (Crl.) No. 3433 of 2023 [Md. Asfak Alam –vs- The State of Jharkhand & Anr] and with the approval of the Hon’ble the Chief Justice, the following guidelines are framed by the High Court at Calcutta to be followed by the Sessions courts and all other and Criminal courts within the territory of West Bengal and Andaman & Nicobar Islands, dealing with various offences :

1. 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 of Cr.P.C.
2. All police officers be provided with a check list containing specified sub-clauses under Section 41(1) (b)(ii).
3. 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.
4. 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.
5. 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.
6. Notice of appearance in terms of Section 41-A of Cr.P.C. 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.
7. Failure to comply with 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.
8. Authorizing detention without recording reasons as aforesaid by the Judicial Magistrate concerned shall be liable for departmental action by the appropriate High Court.

The Hon’ble Supreme Court hasten to add that the directions aforesaid shall not only apply to the case under Section 498-A IPC or Section 4 of the Dowry Prohibition Act, the case in hand, but also such cases where offence is punishable with imprisonment for a terms which may be less than seven years or which may extend to seven years, whether with or without fine”.

Conclusion

The guidelines on arrest issued by the Calcutta High Court on matters related to Section 498A are a step in the right direction because they aim to prevent the misuse of the law. The guidelines state that the police should not automatically arrest a person accused of an offense under Section 498A. Instead, they should satisfy themselves about the necessity for arrest under the parameters flowing from Section 41 of the Criminal Procedure Code (CrPC).
Section 41 of the CrPC lays down the grounds on which a person can be arrested. These grounds include the likelihood of the person absconding, the likelihood of the person tampering with evidence, and the likelihood of the person committing further offenses.

The guidelines issued by the Calcutta High Court require the police to consider all of these factors before making an arrest. This will help to ensure that arrests are made only in cases where they are necessary, and that innocent people are not harassed. The guidelines also state that the police should provide a written explanation to the accused person if they are arrested. This explanation should state the reasons for the arrest and the evidence that the police have against the accused person.

This will help to ensure that the accused person is aware of the reasons for their arrest and that they have the opportunity to challenge the arrest. The guidelines issued by the Calcutta High Court are a welcome step in the fight against the misuse of Section 498A. They will help to ensure that the law is used to protect women from domestic violence, and not to be misused for personal gain.

This article is written and submitted by Sanskar Singhal during his course of internship at B&B Associates LLP. Sanskar is a 5th Year BBA LLB student at Geeta Institute of Law, Panipat.