Report No. 243
13.4 The Explanation to Section 498-A which defines cruelty is in two parts. Clause (a) of the Explanation deals with aggravated forms of cruelty which cause grave injury. Firstly, wilful conduct of such a grave nature as is likely to drive the woman to commit suicide falls within the ambit of clause (a). The second limb of clause (a) lays down that willful conduct which causes grave injury or danger to life, limb or health (whether mental or physical) of the woman is to be regarded as 'cruelty'. Dowry related harassment is within clause (b) of the Explanation.
When the FIR coupled with the statement of the victim woman discloses cruelty of grave nature falling within clause (a), the police officer has to act swiftly and promptly especially if there is evidence of physical violence. In the first instance, proper medical aid and the assistance of counselors shall be provided to the aggrieved woman and the process of investigation should start without any loss of time. The need for arresting the husband may be more demanding in such a situation in a case of cruelty falling under clause (b).
We are adverting to this fact in order to make it clear that our observations earlier do not mean that under no circumstances, the power of arrest shall be initially resorted to or that the I.O. should invariably postpone the arrest/custodial interrogation till the reconciliation process comes to close. We would like to stress that the discretion has to be exercised reasonably having due regard to the facts of each case. Of course, the conditions subject to which the power of arrest has to be exercised should always guide the discretion to be exercised by the police officer.
While no hard and fast rule as to the exercise of power of arrest can be laid down, we would like to point out that a balanced and sensitive approach should inform the decision of the I.O. and he shall not be too anxious to exercise that power. There must be good and substantial reasons for arriving at the satisfaction that imminent arrest is necessary having regard to the requirements of clause (ii) of Section 41(1)(b) of Cr. P.C.
In this context, the Commission would like to stress that the practice of mechanically reproducing in the case diary all or most of the reasons contained in the said clause for effecting arrest should be discouraged and discontinued. The Head of Police department should issue necessary instructions in this regard which will serve as a safeguard against arbitrary arrests in Section 498-A cases.(ii) is extracted hereunder:
13.5 The investigating officers should remind themselves of the pertinent observations made by the Supreme Court in Joginder Kumar v. State of U.P., AIR 1994 SC 1349 : (1994) 4 SCC 260. After referring to the 3rd report of National Police Commission, the Supreme Court placed the law of arrest in a proper perspective by holding:
"The above guidelines are merely the incidents of personal liberty guaranteed under the Constitution of India. No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest apart from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person.
No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reasonable satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest. Denying a person of his liberty is a serious matter.
The recommendations of the Police Commission merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reasonable justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified.
Except in heinous offences, an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave the Station without permission would do. Then, there is the right to have someone informed. That right of the arrested person, upon request, to have someone informed and to consult privately with a lawyer was recognised by Section 56(1) of the Police and Criminal Evidence Act, 1984 in England".
13.6 In Siddaram Satlingappa v. State of Maharashtra, AIR 2011 SC 312 (Para 123) it was observed:
"The arrest should be the last option and it should be restricted to those exceptional cases where arresting the accused is imperative in the facts and circumstances of that case".