1.

Constitution and Powers of Criminal Courts Under the Bharatiya

Nagarik Suraksha Sanhita (BNSS), 2023

The Bharatiya Nagarik Suraksha Sanhita (BNSS) has meticulously structured the hierarchy of
criminal courts in India. This legal framework, outlined in the Sanhita, establishes a tiered
system to ensure the effective dispensation of justice.

High Courts:

At the pinnacle of the judicial hierarchy of criminal courts are the High Courts. They hold the
authority to appoint Judges for various courts, including the Courts of Session and Judicial
Magistrates. The High Courts play a pivotal role in shaping the judicial landscape.

Section 6 of the Sanhita says that Besides the High Courts and the Courts constituted under any
law, other than this Sanhita, there shall be, in every State, the following classes of Criminal
Courts, namely:—

(i) Courts of Session;

(ii) Judicial Magistrates of the first class;

(iii) Judicial Magistrates of the second class; and

(iv) Executive Magistrates.

Section 7 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, establishes the framework
for organizing the territorial jurisdiction of criminal courts within a state. Its key points are:

○ Each state is either a single sessions division or comprises multiple sessions

divisions.
○ A sessions division may consist of one or more districts, forming the territorial
basis for the criminal justice system.
○ The State Government, in consultation with the High Court, can modify the limits
or number of sessions divisions or districts as required.
 ○ Districts can be further divided into sub-divisions by the State Government, with
the High Court's consultation.
○ The boundaries or number of sub-divisions can also be altered to suit
administrative and judicial needs.

Court of Session (Section 8):

○ Each sessions division is required to have a Court of Session, established by the

State Government.
○ The High Court appoints the Sessions Judge to preside over the Court of Session
and may also appoint Additional Sessions Judges for the division.
○ The Sessions Judge of one division can also act as an Additional Sessions Judge
in another division if so directed by the High Court.
○ In cases of vacancy or absence, the High Court can authorize an Additional
Sessions Judge or Chief Judicial Magistrate to handle urgent applications.
○ The Court of Session holds its sittings at locations specified by the High Court.
For general convenience or specific cases, it may sit at alternate locations within
the sessions division, provided both the prosecution and the accused consent.
○ The Sessions Judge has the authority to allocate cases among Additional Sessions
Judges and make arrangements for urgent applications in case of their absence.

Courts of Judicial Magistrates (Section 9)

○ Courts of Judicial Magistrates of the first class and second class are established in
districts as per the State Government's notification after consulting the High
Court.
○ Special Courts of Judicial Magistrates may be established for specific cases or
categories of cases, with exclusive jurisdiction in the designated local area.
○ The High Court appoints Judicial Magistrates to preside over these courts.
 ○ Powers of Judicial Magistrates can also be conferred on civil court judges by the
High Court whenever deemed necessary.

Chief Judicial Magistrate and Subordinate Magistrates (Section 10)

○ The High Court appoints a Judicial Magistrate of the first class as the CJM for
each district.
○ The CJM has supervisory powers over other Judicial Magistrates in the district.
○ The High Court may appoint Additional Chief Judicial Magistrates with similar
powers as the CJM.
○ A Judicial Magistrate of the first class can be designated as a Sub-Divisional
Judicial Magistrate, who oversees the work of other Magistrates in the subdivision
under the general control of the CJM.

Special Judicial Magistrates (Section 11)

○ The High Court, on the request of the Central or State Government, can confer
powers of Judicial Magistrates on individuals with requisite qualifications or
experience in legal affairs.
○ Such magistrates are appointed for specific cases or categories of cases and hold
office for a term not exceeding one year.

Executive Magistrates:

Sections 14 to 19 of the BNSS deal with the appointment of Executive Magistrates by the State
Government in every district, their jurisdiction and hierarchy. A major amendment in the BNSS
(Section 15) is that besides the Executive Magistrate, the State Government can also appoint any
police officer not below the rank of a Superintendent of Police or equivalent to be known as a
Special Executive Magistrate.
Powers of Criminal Courts

Powers of High Courts and Sessions Judges (Section 22)

1. High Courts:
○ The High Court has the authority to impose any sentence permitted by law,
including the death penalty.
2. Sessions Judges:
○ Sessions Judges and Additional Sessions Judges can also pass any lawful
sentence, but a death sentence requires confirmation by the High Court.

Sentencing Powers of Magistrates (Section 23)

1. Chief Judicial Magistrate (CJM):

○ The CJM can impose any sentence authorized by law, except for the death
penalty, life imprisonment, or imprisonment exceeding seven years.
2. Judicial Magistrates of the First Class:
○ They may impose imprisonment for up to three years, a fine of up to ₹50,000, or
both. Additionally, they can order community service as a form of punishment.
3. Judicial Magistrates of the Second Class:
○ They may impose imprisonment for up to one year, a fine of up to ₹10,000, or
both, along with the option of community service.

Explanation on Community Service:

Community service involves work beneficial to the community and is ordered as an alternative
punishment, without remuneration to the convict.

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2. Explain the rights of the arrested persons

Any person has to be treated as a human being, irrespective of the fact that such person is a
criminal. The accused persons are also granted certain rights, the most basic of which are found
in the Indian Constitution. The basic assumption behind these rights is that the government has
enormous resources available to it for the prosecution of individuals, and individuals, therefore,
are entitled to some protection from misuse of those powers by the government. An accused has
certain rights during the course of any investigation; enquiry or trial of offence with which he is
charged, and he should be protected against arbitrary or illegal arrest. Given below are some of
the most important rights of an arrested person:

1. Right to Silence

The ‘right to silence’ has been derived from common law principles. It means that normally
courts or tribunals should not conclude that the person is guilty of any conduct merely because
he has not responded to questions which were asked by the police or by the court. As per Article
20(3) of Constitution of India guarantees every person has been given a right against self-
incrimination, it states that any person who has been accused of any offence, shall not be
compelled to be a witness against himself.

2. Right To Know The Grounds of Arrest

As per Section 47(1) of BNSS, every person who is being arrested by any police officer, without
any warrant, is entitled to know the full particulars of offence for which he is being arrested, and
that the police officer is duty bound to tell the accused such particulars and cannot deny it.

As per Section 55 of BNSS, when any person is being arrested by any police officer, who is
deputed by a senior police officer, then such subordinate officer shall before making such arrest,
notify the person to be arrested the substance of the written order given by the senior police
officer specifying the offence or other cause for which the arrest is to be made. If this provision
is not complied with, then the arrest would be rendered illegal.
If the person is being arrested under a warrant, then as per Section 77 of BNSS, any person who
is executing such warrant must notify the person to be arrested, the particulars of such warrant,
or even show such warrant if needed. If the substance of the warrant is not notified, the arrest
would be unlawful.

The Constitution of India also confers this right as one of the fundamental rights. Article 22(2) of
the constitution provides that “no person who is arrested shall be detained in custody without
being informed as soon as may be, of the grounds for such arrest nor shall he be denied the right
to consult, and to be defended by a legal practitioner of his choice.”

3. Information Regarding The Right To Be Released On Bail

Section 47(2) of BNSS states that any person who is to be arrested without a warrant and is not
accused of a non-bailable offence has to be informed by the police officer that he is entitled to be
released on bail on payment of the surety amount. This helps persons who are arrested for
bailable offences and are not aware of their right to be released on bail.

4. Right To Be Taken Before A Magistrate Without Delay

Irrespective of the fact, that whether the arrest was made with or without a warrant, the person
who is making such arrest has to bring the arrested person before a judicial officer without any
unnecessary delay. Further, the arrested person has to be confined in police station only and
nowhere else, before taking him to the Magistrate. These matters have been provided in Cr.P.C.
under sections 56 and 76 which are as given below:

Section 57 of BNSS states that “Person arrested to be taken before Magistrate or officer in
charge of police station- A police officer making an arrest without warrant shall, without
unnecessary delay and subject to the provisions herein contained as to bail, take or send the
person arrested before a Magistrate having jurisdiction in the case, or before the officer in charge
of a police station”.
Section 78 of BNSS states that “Person arrested to be brought before Court without delay- The
police officer or other person executing a warrant of arrest shall (subject to the provisions of
section 71 as to security) without unnecessary delay bring the person arrested before the Court
before which he is required by law to produce such person”.

Further, it has been mentioned in the proviso of Section 76 that such delay shall not exceed 24
hours in any case. While calculating the time period of 24 hours, the time necessary for the
journey is to be excluded. The same has been enumerated in the Constitution as a Fundamental
Right under Article 22(2). This right has been created with a view to eliminate the possibility of
police officials from extracting confessions or compelling a person to give information.

If the police officials fails to produce an arrested person before a magistrate within 24 hours of
the arrest, the police officials shall be held guilty of wrongful detention.

6. Rights at Trial

Right To A Fair Trial

The Constitution under Article 14 guarantees the right to equality before the law. The Code of
Criminal Procedure also provides that for a trial to be fair, it must be an open court trial. This
provision is designed to ensure that convictions are not obtained in secret. In some exceptional
cases the trial may be held in camera.

Right To A Speedy Trial by the Constitution of India

Though this right has not been specifically mentioned in the Constitution, however, the SC in the
Hussainara Khatoon case has made it mandatory that the investigation in the trial must be
conducted “as expeditiously as possible.” In cases, wherein the maximum punishment that can
be imposed is 2 years, once the accused is arrested, the investigation for the trial has to be
completed within the period of six months or stopped on receiving an order from the Magistrate,
unless the Magistrate receives and accepts, with his reasons in writing, that there is cause to
extend the investigation.
7. Right To Consult A Legal Practitioner

Every person who is arrested has a right to consult a legal practitioner of his own choice. This
has been enshrined as a fundamental right in Article 22(1) of the Constitution of India, which
cannot be denied in any case. Section 38 of the Sanhita also lays down that the person who is
arrested has a right to meet an advocate of his choice. This starts begins as soon as the person is
arrested. The consultation with the lawyer may be in the presence of police officer but not within
his hearing.

8. Rights Of Free Legal Aid

The Supreme Court in the case of Khatri v. the State of Bihar has held that the state is under a
constitutional obligation (implicit in Article 21) to provide free legal aid to an indigent accused
person as is implicit in Article 21 of the Constitution . This right does not come into picture only
at the time of trial but exists at the time when the accused is produced the first time before the
magistrate, as also when remanded from time to time. The Supreme Court further states that
failure on the part of the state to inform the accused of this right will vitiate the whole process of
trial. Therefore, a duty is imposed on all magistrates and courts to inform the indigent accused of
his right to get free legal aid.

9. Right To Be Examined By A Medical Practitioner

Section 53 of BNSS enumerates this right. Section 53, outlines the procedure for the medical
examination of arrested individuals to ensure their physical well-being and document any pre-
existing injuries. The provision states that every arrested person must be examined by a medical
officer employed by the Central or State Government. If such a medical officer is unavailable, a
registered medical practitioner must conduct the examination promptly after the arrest. The
examination of a female arrested person must be conducted only by a female medical officer or
under her supervision. The medical officer or practitioner must record any injuries or marks of
violence on the arrested person, along with an estimation of when such injuries were inflicted. A
copy of the medical report must be provided to the arrested person or a nominee designated by
the arrested person.

Case laws-

D.K. BASU VERSUS STATE OF WEST BENGAL (1997 (1) SCC 416)

The landmark case of D.K. Basu Versus State of West Bengal (1997 (1) SCC 416), the court
laid down certain basic “requirements” to be followed in all cases of arrest or detention till legal
provisions are made in that behalf as a measure to prevent custodial violence. The guidelines are
as follows:

● Identification of arresting officer must be clearly visible and all details must be recorded
in register,
● a memorandum must be prepared containing all the details which must be witnessed by
near or dear of the detainee
● police must ensure that accused should avail right to be informed
● police need to inform him about legal aid organization within 8-12 hours of arrest
● the person arrested must be informed his right as an accused
● an entry must be made in the prescribed diary
● if the arrestee is injured he must be legally examined
● the medical examination should be done within 48 hours
● all details must be sent to magistrate in writing
● the arrestee must be allowed to meet attorney
● a room shall be provided to officers for communication.

KHATRI & ORS. V STATE OF BIHAR & ORS., (1981) 1 SCC 627
In 1980, in an infamous incident of brutal custodial torture and violence against undertrials, jail
officials blinded several men lodged at Bhagalpur Central Jail by pouring acid into their eyes.
This has since been known as the ‘Bhagalpur blindings incident’.

Afterwards, when those undertrials were produced before Judicial Magistrates for remand
proceedings for the first time after their blinding, most were not represented by any lawyer. Even
the Magistrates did not offer them any legal representation at State cost, supposedly for the
reason that they had not asked for it. Due to this lack of legal representation, most of them
continued to languish in jail despite being subjected to custodial torture and violence.

SUPREME COURT - The right to free legal services was an essential ingredient of ‘reasonable,
just and fair’ procedure for the person accused of an offence, and was implicit in the Article 21
right to life and liberty. Thus, right to legal representation was a Fundamental Right under the
Constitution of India. In furtherance, the State has a constitutional mandate to provide a lawyer
to an accused who was unable to afford one on their own. Yet, most States in the country had not
ensured free legal services for accused persons. The argument of ‘financial constraints’ raised by
the state as a reason to deny free legal representation was also rejected. It also held that judges
were under an obligation to inform the accused about their right to obtain free legal services at
state cost, if they could not afford it on their own. It noted the failure of the Magistrates in this
regard when the blinded undertrials were produced before them.

JOGINDER KUMAR v STATE OF UP, AIR 1994 SC 1349

A young lawyer was called to the police station by the Senior Superintendent of Police,
Ghaziabad, along with his brothers, to make enquiries from them in a criminal case. After the
enquiry, his brothers were let go, but the Petitioner was illegally detained by the police. The next
day, his family was informed that instead of being produced before a Magistrate, he had been
taken to another police station. Later he was moved from that police station to an undisclosed
location. His family filed a writ of habeas corpus 21 in the Supreme Court on his behalf, seeking
his production.
During the hearing of the writ petition, the Petitioner was produced by the police before the
Supreme Court, and the police claimed that he had never been detained, but had merely been
cooperating with the police in the investigation of a case.

SUPREME COURT - The Court held that although the police had the unquestionable legal
powers to arrest a person in a cognizable criminal case, every arrest had to be justified. Arrests
could not be made in a routine manner, merely on an allegation or a suspicion of their
involvement in a crime. Every arrest should be made after the police officer reached a reasonable
satisfaction after some investigation that the complaint was genuine and bona fide, the accused
was complicit in the crime, and the arrest was necessary and justified.

Guideline By Apex Court

These rights are inherent in Articles 21 and 22(1) of the Constitution and require to be
recognised and scrupulously protected. For effective enforcement of these fundamental rights,
we issue the following requirements:

1. An arrested person being held in custody is entitled, if he so requests, to have one friend,
relative, or other person who is known to him or likely to take an interest in his welfare
told as far as is practicable that he has been arrested and where he is being detained.
2. The police officer shall inform the arrested person when he is brought to the police
station of this right.
3. An entry shall be required to be made in the diary as to who was informed of the arrest.
These protections from power must be held to flow from Articles 21 and 22(1) and
enforced strictly.

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3. What is Complaint? Explain the procedure to be followed by the Magistrate

on receiving complaints.

What is a Complaint?
Section 2(h) of BNSS - “complaint” means any allegation made orally or in writing to a
Magistrate, with a view to his taking action under this Sanhita, that some person, whether known
or unknown, has committed an offence, but does not include a police report.

The term “complaint” refers to any assertion made before a magistrate, either orally or in
writing, according to the code of criminal procedure. It is done without a police report but with
the intention of initiating action under this Code against some person, known or unknown, who
has committed an offence.

Procedure to be Followed by a Magistrate Upon Receiving a Complaint

1. Examination of the Complainant (Section 223)

When a magistrate receives a complaint, they are required to examine the complainant and any
witnesses present under oath. The key provisions under Section 223 are:

1. The magistrate must reduce the substance of the examination to writing and obtain
signatures from the complainant, witnesses, and themselves.
2. Certain exceptions to the examination are provided:
○ If the complaint is made in writing by a public servant acting in their official
capacity or by a court.
○ If the magistrate transfers the case to another magistrate under Section 212.
3. Complaints against public servants require additional safeguards:
○ The public servant must be given an opportunity to explain the circumstances
leading to the alleged offense.
○ A report from a superior officer regarding the incident must be received before
cognizance is taken.

Significance:
This section ensures that only genuine complaints are entertained. By examining complainants
and witnesses under oath, it helps deter false or malicious allegations and maintains judicial
efficiency.

2. Procedure for Incompetent Magistrates (Section 224)

If a magistrate receives a complaint but is not competent to take cognizance of the offense, they
must:

● Return the complaint (if in writing) for presentation to the appropriate court with an
endorsement stating the lack of jurisdiction.
● Direct the complainant to the proper court if the complaint is oral.

Significance:
This provision ensures that cases are heard by the appropriate judicial authority, preventing
jurisdictional errors and safeguarding the rights of the complainant and the accused.

3. Postponement of Issuance of Process (Section 225)

Upon receiving a complaint, a magistrate may decide to postpone issuing a process against the
accused. This section empowers the magistrate to:

1. Conduct an inquiry themselves or direct an investigation by the police or another

authorized individual to determine if sufficient grounds exist to proceed.
2. Take evidence of witnesses on oath during the inquiry.

Prohibitions:

● The magistrate cannot direct an investigation:

○ If the offense is triable exclusively by a Court of Session.
○ Unless the complainant and witnesses have been examined on oath, except where
the complaint is made by a court.
 3. If an investigation is conducted by a person other than a police officer, they are granted
all investigative powers, excluding the authority to arrest without a warrant.

Significance:
This section provides the magistrate with flexibility to verify allegations before initiating
proceedings, ensuring that only credible cases are taken forward.

4. Dismissal of Complaint (Section 226)

If the magistrate, after examining the complainant and witnesses or considering the findings of
an inquiry or investigation under Section 225, concludes that there is insufficient ground to
proceed, they may dismiss the complaint. In such cases, the magistrate must briefly record their
reasons for dismissal.

Significance:
This provision prevents unnecessary harassment of individuals by dismissing baseless
complaints. Requiring written reasons for dismissal promotes accountability and transparency in
judicial decision-making.

The BNSS, 2023, provides a robust and detailed procedure for handling complaints, empowering
magistrates to exercise discretion judiciously while maintaining procedural integrity. By striking
a balance between accessibility for complainants and safeguards against misuse, these provisions
strengthen the criminal justice system and uphold the principles of fairness and justice.

Case Law-

GURUDAS BALKRISHNA VS CHIEF JUDICIAL MAGISTRATE GOA, 1992

In this case, a complaint was filed before the learned Magistrate on July 31, 1992, but it was
taken on record only on August 3, 1992, and no further action was taken until September 25,
1992. According to the court record, on September 25, the court was engaged with other urgent
cases, and hence, the case was adjourned to February 19, 1993. The High Court observed that the
delay in recording the complaint due to the court’s engagement in other work could not be
justified, especially when the delay extended to around five months. Such a delay could
potentially frustrate the very purpose for which criminal complaints are filed. As a result, the
High Court directed the Chief Judicial Magistrate, Panaji, to record the evidence of the
complainant and his witnesses within a week from the date of its order.

JACOB HAROLD ARANHA V. VERA ARANHA (1979)

In the case of Jacob Harold Aranha v. Vera Aranha (1979), the Bombay High Court made a
crucial observation regarding Section 204 of the Code of Criminal Procedure, 1973. The court
noted that a magistrate has a legal duty to thoroughly analyze the allegations and the evidence
presented before the court to determine whether a prima facie case exists or not. This analysis
must be conducted before issuing summons under Section 204 of the Code of Criminal
Procedure, 1973. The decision was later accepted as a precedent in the case of Roshan Lal v. P
Hemchandran (1996), where the Rajasthan High Court agreed that although the issuance of
summons to the accused is a subjective satisfaction of the magistrate, it must be exercised
judiciously, in accordance with the law, and based on sound reasoning.

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5. What do you meant by arrest? Explain when a police officer can arrest
without warrant.

Arrest is the process of taking a person into custody, with the intention of bringing them
before a court to face criminal charges. The Bhartiya Nagrik Suraksha Sanhita in India lays down
the procedure for the arrest of an individual suspected of having committed a crime. The main
purpose of arrest is to ensure the attendance of the accused before the court, and to prevent the
accused from absconding or tampering with evidence. Arrest is a crucial tool in the hands of law
enforcement agencies to ensure that persons accused of committing a crime are brought to
justice. It helps in ensuring that the accused is available for investigation and trial, and prevents
them from evading the legal process. Arrest also plays an important role in maintaining law and
order by deterring individuals from committing crimes. It acts as a deterrent against potential
offenders by creating a fear of being caught and punished for their actions.

Furthermore, Sections 35 to 62 defined under Chapter V of BNSS deal with arrest of a person.
Each section of this chapter outlines the arresting procedures and guidelines that police or law
enforcement authorities must follow when arresting an individual. For example, Section 35 (1)
defines “when police may arrest without warrant;” likewise, this provision empowers a police
officer to arrest a person without a judicial magistrate’s order or arrest warrant provided that if
any cognizable offence committed by the respective person in front of the arresting officer; or, if
the police officer has a reasonable belief that the person has committed a cognizable offense.

Arrest without warrant -

Section 35 of BNSS provides for the circumstances of when a police officer may arrest a person
without warrant.

9 Points for When Arrest is Necessary under BNSS Sec 35 -

1. Section 35(1)(a): Empowers police officer to arrest a person without warrant when a
cognizable offence is committed by a person in the presence of police.

2. Sec 35(1)(b): 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. The additional conditions
for such arrest as per Section 35(1)(b)(i) require the police officer to have reason to
 believe on the basis of such complaint, information, or suspicion that the said offence has
been committed.

The BNSS Sec 35(1)(b)(ii) gives additional set of conditions satisfying the police officer
regarding necessity of arrest on the following conditions:

● To prevent further offence

● For proper investigation
● To prevent tampering with evidence
● To prevent inducement/threat/promise to anyone related dissuading from
disclosing facts
● When presence before the Court cannot be ensured unless the person is arrested

In any case, the police have to record reasons in writing for not making an arrest, if such
an arrest is not required.

3. Sec 35(1)(c): Provides that arrest may be made if police have reason to believe or if they
received credible information of a cognizable offence with punishment of more than 7
years or death penalty.

4. Sec 35(1)(d): Provides for arrest if a person has been proclaimed offender under the
Criminal Procedure Code, or a State Government order.

5. Section 35(1)(e): When a person is found in possession of stolen property or such thing,
he/she can be arrested as per this provision.

6. Section 35(1)(f): The clause provides for arrest of the person who obstructs police while
such police officer is executing duty or escaped or attempts to escape from custody.
 7. Section 35(1)(g): If a person is suspected of being a deserter from the Army, he/she can
be arrested.

8. Section 35(1)(h): If reasonable information is received by the police regarding

commitment of an offence outside India, which is also a punishable offence if committed
in India, such a person is liable to be apprehended in India.

9. Section 35(1)(i): The provision empowers police officer to arrest if a released convict
commits breach of rule under Section 394(5) of BNSS.

10. Section 35(1)(j): If requisition is received from another police officer specifying a person
to be arrested and the very cause of arresting, the police may arrest such person as per the
given provision.

BNSS Section 35(2) clarifies that subject to Section 39, no person can be arrested by police for a
non-cognizable offence except under a warrant or Magistrate order.

Sub-section (3) states that - No arrest shall be made without prior permission of an officer not
below the rank of Deputy Superintendent of Police in case of an offence which is punishable for
imprisonment of less than three years and such person is infirm or is above sixty years of age.

Case Laws-

RINI JOHAR V. STATE OF MADHYA PRADESH (2016) 11 SCC 703

The petitioners—Dr. Rini Johar, a doctor, and Gulshan Johar, a senior advocate—were arrested
following a complaint alleging fraud in a business transaction involving the sale of machines and
a laptop. The arrests were carried out by the Cyber Cell, Bhopal, without issuing prior notice
under Section 41A CrPC, and the petitioners were subjected to humiliating treatment, including
denial of medical aid and basic necessities. They were not produced before a local magistrate
within 24 hours, violating procedural safeguards. The petitioners challenged the arbitrary arrest
and sought compensation for the curtailment of their liberty under Article 21 of the Constitution.

The Court observed that the arrest failed to satisfy the prerequisites of Section 41 CrPC, which
governs arrests without a warrant. Section 41 requires "reasonable satisfaction" based on credible
information, but in this case, no sufficient grounds for arrest were recorded. The police failed to
issue notice to the petitioners under Section 41A, which is mandatory for offenses punishable
with imprisonment of less than seven years unless deemed necessary. The arrest was conducted
arbitrarily without recording reasons in the case diary. The Court held that the petitioners’
dignity and liberty, guaranteed under Article 21 of the Constitution, were grossly violated and
State would be liable to compensate for arrest without warrant when the procedure is not
followed and is a flagrant violation/deviation from Sec.41 and 41A.

ARNESH KUMAR V. STATE OF BIHAR, (2014) 8 SCC 273

The case of Arnesh Kumar is a landmark judgement on misuse of Section 498A IPC. The
Supreme Court in this case provided guidelines for making an arrest. The Court analysed the
provision of Section 41(1)(A) of the Criminal Procedure Code (CrPC) which lays down certain
procedures before an arrest is made (Now Section 35 of Bharatiya Nagarik Suraksha Sanhita
2023).

The Supreme Court found that Section 498A which was intended to address dowry-related
harassment, had become a tool for disgruntled wives and resulted in the arrest of innocent
individuals without any substantial evidence. The Court considered that some women were
misusing the law to harass their husbands and in-laws.
The Supreme Court in order to ensure that police officers do not make unnecessary arrests and
Magistrates do not authorize unwarranted detention issued the following directions -

○ State Governments must direct police officers not to automatically arrest individuals in
cases registered under Section 498A of the Indian Penal Code. Instead, they must assess
the necessity for arrest based on the parameters mentioned in Section 41 of the Criminal
Procedure Code (CrPC)
○ Police officers must be provided with a checklist containing the specified sub-clauses of
Section 41(1)(b)(ii) of the Criminal Procedure Code (CrPC)
○ The police must submit the completed checklist along with the reasons and evidence
justifying the arrest when producing the accused before the Magistrate for detention
○ Magistrates must review the report submitted by the police and record their satisfaction
regarding the necessity for detention, before authorizing detention.
○ If the police decide not to arrest the accused, this decision must be communicated to the
Magistrate within two weeks of the institution of the case.
○ As per Section 41A of the CrPC a notice to appear must be served on the accused within
two weeks of the case being instituted with an extension permissible by the
Superintendent of Police upon recording reasons in writing.
○ Non-compliance with these directions will subject the concerned police officers to
departmental action and contempt of court proceedings before the High Court with
territorial jurisdiction.
○ Judicial Magistrates authorizing detention without recording appropriate reasons will face
departmental action initiated by the respective High Court.