BHARTIYA NAGARIK SURAKSHA SANHITA

(PROJECT REPORT)

TOPIC: Case study of Arnesh Kumar vs State of

Bihar(2014)

SUBMITTED TO: SUBMITTED BY:

PROF. SANJEEV KUMAR SANIA
UILS ROLL NO. 121/22
PANJAB UNIVERSITY SECTION B
CHANDIGARH SEMESTER 5
B.A.L.L.B(HONS.)
UILS
PANJAB UNIVERSITY
CHANDIGARH
 ACKNOWLEDGEMENT

I would like to express my gratitude towards my teacher Prof. Sanjeev Kumar for choosing me to work
on this insightful and intriguing topic of Case Study of Arnesh Kumar vs State of Bihar(2014), and for
his valuable guidance and support which helped me immensely during the process of making this
project.
I am also grateful to the University Institute of Legal Studies, Panjab University for providing me with
the beautiful opportunity to work on this project, and for providing me the resources which I needed for
the completion of this project in time.
I would also like to thank my parents and friends for encouraging me during the course of this project.
Finally, I would like to thank all those who have directly or indirectly helped me make this project.
Sania

Roll no. 121/22

B.A.L.L.B(hons.)
5th Semester
 CONTENTS

Introduction

Details of case

Background of case

Facts of the case

Laws Involved

Proceedings before HC
Judgement by SC
Effects of judgement
Conclusion
References
 INTRODUCTION
Arnesh Kumar vs. State of Bihar (2014) is a historic case in criminal law. Indiscriminate arrests and
extended detention were prevalent throughout the country.
Arrests even in petty offences, and offences punishable within seven years of imprisonment were being
carried out. The police arbitrarily exercised its powers of arrest, resulting in a delay of justice, and
overcrowding of prisons. Several fundamental rights of the accused were being violated. There were
ubiquitous violations of the Right to life, movement, and freedom of the arrested. They were illegally
detained based on mere suspicion. Therefore, understanding the grave situation, the Supreme Court,
historically laid down guidelines to regulate arrests in the Arnesh Kumar case. This case laid down
comprehensive rules to be followed by the police during arrest and by the magistrate while deciding upon
the detention of the accused. It laid down the circumstances during when an accused could be arrested and
also provided a thorough interpretation of Section 41 of Code of Criminal Procedure, 1973 (hereinafter
referred to as CrPC) now, Section 35 of Bhartiya Nagarik Suraksha Sanhita, 2023 (hereinafter
referred to as BNSS).
Further, this case also deeply analyses the misuse of Section 498A of the Indian Penal Code (IPC), 1860
(Now, Section 85 of Bhartiya Nyaya Sanhita, 2023) (hereinafter referred to as BNS) or cruelty and laid
down guidelines to prevent them. Additionally, the Dowry Prohibition Act, 1961 was also briefly analysed
in this case. Arnesh Kumar’s case is renowned for ensuring the protection of the incarcerated yet innocent
accused. This case condones arbitrary arrests and lays down strict rules to be adhered to by the police. It
emphasises on protection of the rights of the accused and the principle of ‘innocent until proven guilty’. It
further emphasised that the power of the police is limited and that the fundamental rights of a suspect or an
accused need to be upheld unequivocally. This case is rich in its interpretation of Section 35 of BNSS and
Section 85 of BNS and hence becomes an important precedent for defence counsels to look up to.
 DETAILS OF THE CASE
Case name – Arnesh Kumar vs. State of Bihar

Case no. – Criminal Appeal NO. 1277 of 2014

Equivalent Citations – AIR 2014 SUPREME COURT 2756, 2014 AIR SCW 3930,

(3) SCC (CRI) 449

Acts involved – Bhartiya Nagarik Suraksha Sanhita (BNSS), 2023, Bhartiya Nyaya Sanhita (BNS), 2023
and the Dowry Prohibition Act, 1961.
Important provisions – Section 35(1)(2), section 35(3) to 35(6) and Section 58 of

BNSS, Section 85 of BNS, Article 21 of the constitution, Article 22(2) of The Constitution, Section 4 of
Dowry Prohibition Act of 1961.

Court – Supreme Court of India

Bench – Pinaki Chandra Ghose, Chandramauli K.R Prasad

Petitioner – Arnesh Kumar

Respondent – State of Bihar

Judgement date – 2nd July, 2014

 BACKGROUND OF THE CASE
Prior to 2014, irrespective of the magnitude of the offence, punishment for the offence, and culpability of the
accused, arrest was the consequence. Even individuals with petty offences were put behind bars. The Indian
prisons are filled with persons who have not yet gone to trial, over 2/3rd of inmates are undertrials. The
plight and magnitude of undertrials were accurately highlighted during the outbreak of Covid-19. The
situation of the accused prior to 2014 was bleak. The situation that prevailed was akin to a police state where
the police unnecessarily without competent jurisdiction or authority or evidence indiscriminately arrested the
accused. This was a gross violation of the right to dignity and basic principles of natural justice. It also
violated the fundamental principle of “innocent until proven guilty” of the Indian Legal System.

The provisions of BNSS were blatantly violated by the Executive. In the month of 1994, the first respite was
given, the Supreme Court observed in Joginder Kumar vs. State of Uttar Pradesh (1994) that indiscriminate
arrests violated constitutional provisions. The Court laid down arrest guidelines to be strictly followed by the
police. In the Jogider Kumar case, the Court observed that 60% of arrests at that time were unnecessary and
unjustified. Further, in Siddharam Sarilingappa Mehtre vs. State of Maharashtra and Ors (2010), the
Supreme Court highlighted the menace of indiscriminate arrests. The court re-emphasised adherence to
Section 35 of BNSS. Thereafter, in 2014 the same issue was analysed deeply. The prevalence of arbitrary
and groundless arrests even after some precedents and guidelines, brought the need to analyse the question
again and introduced more comprehensive and stricter guidelines to curb unnecessary arrests. This was
extremely important to safeguard fundamental rights and ensure justice.

FACTS OF THE CASE

This case starts with an allegation of dowry harassment. The appellant is the husband of respondent no. 2
(Swetha Kiran), the wife. Their marriage was solemnised on 1st July 2007. The wife claimed that a Maruti
car, A/C, TV set, and 8 lakh rupees were amongst the items demanded by her mother-in-law and father-in-
law. When the wife brought this to the notice of her husband, he threatened to marry another woman if the
demands were not fulfilled. The wife further alleged that she was driven out of the house because she failed
to provide the Dowry that was demanded. The appellant was charged under Section 85 of BNS and Section 4
of the Dowry Prohibition Act,1961. The appellant after coming to know the charges levied against him
sought to obtain an anticipatory bail (Section 438 of CrPC, now, it is Section 482 of BNSS), which was
refused by the Sessions Judge of Bihar and by the High Court of Patna. Challenging the rejection of his
anticipatory bail, the appellant approached the Supreme Court through a criminal appeal.

LAWS INVOLVED
THE CONCEPT OF WARRANT
A warrant is a legal document issued by the magistrate, judge, or some competent officer to the police,
allowing them to arrest, or search an accused. Warrants can also be issued to demand the presence of the
accused in the court. It is essential that the warrant be in writing, and possess the seal of the court and the
sign of the magistrate. Provisions pertaining to warrants of arrest are mentioned under Sections 70–81 of the
CrPC (Now, Sections 72 – 83 of the BNSS). 2(1)(z) of BNSS defines a warrant case as relating to a case
punishable with death, imprisonment for life, or imprisonment for a term of more than 2 years.
SECTION 41 OF CrPC, 1973
Section 41 of the CrPC enlists the circumstances when the Police can arrest an accused without a warrant.
This Section is one of the most comprehensive sections of CrPC. It contains 4 clauses and multiple sub-
clauses. Section 41 is one of the most violated provisions, where ensuring adherence is difficult. Section 41
specifies that the police can arrest without warrant in the following cases:

• The offence was grave or serious and specified a punishment of 7 years or more. For example: rape,
murder, dacoity etc.
• Further, an accused found with possession of stolen goods can be arrested without arrest.
• Further, in some instances, an accused of an offence of punishment up to 7 years or more can be
arrested without warrant.
• An accused of an offence punishable with less than seven years can be arrested provided that the
police officer received credible information or complaint regarding the commission of the offence
and reasonably believed that the accused committed the offence or that the arrest of that accused was
necessary.
• Further, an accused declared as a proclaimed offender by the State can be arrested without a warrant.
Proclaimed offenders are defined under Section 82 of the CrPC
(Section 84 of BNSS,2023). The proclaimed offender is an accused who is reasonably believed to be
absconding and against whom a proclamation is issued by the magistrate ordering him to be present
before the court.
• An individual who has deserted the army or is suspected of deserting the army.
• When a released convict breaches the rules, he is obliged to follow.
• An individual who obstructs the police officer from performing their duty or tries to escape from
lawful custody.
• An individual against whom reasonable apprehension exists that he could have committed an offence
outside India, and such an offence would be punishable under
Indian laws if committed in India. The law relating to extradition shall be applicable and the
individual shall be detained in India.
The Section further states that in cases of non-cognizable offences, an arrest cannot be made without a
warrant. Non-cognizable offences refer to offences that are less serious in nature. They are those offences
where the police ought to obtain permission from the magistrate to investigate the cases. (Section 2(l) of
CrPC or Section 2(1)(o) of BNSS,2023.)

Further, under Section 41 an accused can be issued a notice to appear before the police officer if the case
does not fall under the provisions of Section 41(1). The accused, if given the notice is duty-bound to appear
before the police, failing to do the same could lead to the arrest of the accused without a warrant. However,
if the accused appeared before the police officer as instructed then the accused cannot be arrested without a
warrant except with the reasons mentioned. In the present case, the Supreme Court observed that Section 41
cannot be invoked to arrest the accused. Further, the Apex Court also laid down guidelines for arrest under
Section 41 in this case.

SECTION 41(A) OF CrPC,1973

Section 41 (A) of CrPC specifies furnishing a notice to the accused to appear before the police. It enables
the police to order the appearance of the accused if arrest is not necessary. Further, if there is a reasonable
belief that the person has committed a cognizable offence, then a notice to appear before the police may be
given.

Section 41A (2) specifies that once a notice is given the accused is duty-bound to appear.

Section 41A (3) enables the police to arrest the accused if he fails to comply with the notice. Additionally,
sub-section 4 mentions that subject to orders passed by a competent court, accused may even be arrested for
offences for which no warrant has been produced.

SECTION 498 (A) OF IPC (SECTION 85 OF BNS,2023)

Husband or relative of husband of a woman subjecting her to cruelty-

Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall
be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.

Explanation- For the purpose of this section, “cruelty” means-

(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause
grave injury or danger to life, limb or health (whether mental or physical) of the woman; or

(b)harassment of the woman where such harassment is with a view to coercing her or any person related to
her to meet any unlawful demand for any property or valuable security or is on account of failure by her or
any person related to her to meet such demand.

SECTION 4 OF THE DOWRY PROHIBITION ACT, 1961

If any person demands, directly or indirectly, from the parents or other relatives or guardian of a bride or
bridegroom, as the case may be, any dowry, he shall be punishable with imprisonment for a term which shall
not be less than six months, but which may extend to two years and with fine which may extend to ten
thousand rupees: Provided that the court may, for adequate and special reasons to be mentioned in the
judgment, impose a sentence of imprisonment for a term of less than six months.

ARTICLE 21 OF THE CONSTITUION OF INDIA, 1952

Article 21 talks about the ‘right to liberty and life’. Article 21 specifies that no person can be deprived of his
liberty except through the provisions established by law. Liberty refers to freedom of speech, occupation,
expression etc. The Apex Court and the High Courts in several judgments have expanded the scope of
Article 21. Article 21 was broadened to include the right to dignity, the right to privacy, the right to a safe
environment and the right to shelter. The Supreme Court has explained the facets of liberty through several
judgments.

In A.K Gopalan vs. State of Madras (1950), the court observed that liberty refers to liberty of the body, that
is, freedom from arrest or detention. In the case of Maneka Gandhi vs. Union of India (1978), the court
observed that Article 21 includes the right to dignity and life. In the case of Olga Tellis vs. Bombay
Municipal Corporation (1985), the right to livelihood is an essential part of the right to liberty under Article
21. In the case of Puttaswamy vs. Union of India (2018), the Supreme Court observed that the right to
privacy was a part of Article 21. It was held that individual privacy cannot be compromised except by the
procedure established under law.
 PROCEEDINGS BEFORE THE COURTS
THE HIGH COURT OF PATNA
CONTENTIONS OF PARTIES
• PETITIONER
The petitioner submitted that he is a software engineer and denied all allegations of dowry demands
put forth by the respondents. The Petitioner alleged that a prima facie case does not exist and that the
allegations of torture or dowry demand have not been substantiated by the respondent at the Court.
Further, it was submitted that no injury reports were presented to prove the claims of injury and that
therefore, he should be given anticipatory bail.
• RESPONDENT
It was alleged that the Husband had tortured the wife, stating that the wife faced dowry harassment
and physical torture while staying with her husband in Hyderabad. Further, it was alleged that the
husband was having an illicit relationship with another woman.
Furthermore, it was stated that the wife was physically and mentally assaulted over the non-
fulfilment of the dowry demand.
JUDGEMENT BY PATNA HIGH COURT
Looking into the serious allegations levelled against the appellant- accused, the Hon’ble High Court
dismissed the anticipatory bail application of the accused, dismissing the above-mentioned averments made
by the counsel for the appellant-accused. Being aggrieved by the dismissal of anticipatory bail, the
appellant-accused preferred an appeal before the Apex Court.

THE SUPREME COURT

ISSUES RAISED BEFORE THE SUPREME COURT
• Whether anticipatory bail ought to have been given to the appellant or not?
• Whether indiscriminate arrests were prevalent or not?
• Whether guidelines to curb indiscriminate arrests were necessary or not?
JUDGEMENT BY THE SUPREME COURT
OBSERVATIONS OF THE COURT

The Supreme Court while dealing with the issue of grant of anticipatory bail with regard to an offence under
section 498-A of the Indian Penal Code (Section 85 OF BNS, 2023) first of all highlighted the misuse of
Section 498-A and observed that:

Section 498-A was introduced with a prime object to combat the harassment and cruelty of woman at the
hands of her husband and his relatives. The offence under Section 498-A is Cognizable and Non-Bailable
which has made it a dubious place of pride amongst the provisions that are used as weapons rather than a
shield by disgruntled wives. The simplest way to harass is to get the husband and his relatives arrested under
this provision. In a quite number of cases bed ridden grand-fathers and grand-mothers of the husband, their
sister living abroad for decades are arrested.

The Supreme Court also referred to the Crime in India Statistics published by National Crime Records
Bureau by Ministry of Home Affairs. The data shows that 1,97,762 persons were arrested in the year 2012
for the offence under Section 498-A of the Indian Penal Code and out of which 47,951 were women which
depicts the mother and sister of the husband that are caught in the net of this offence. The rate of filing
charge sheet for the offence under section 498-A is 93.6% while the conviction rate is only 15% which may
likely states that in pending trial maximum cases would end up in acquittal.

The Supreme Court thereafter made observation with regard to arrest. Supreme Court observed that:

Arrest brings humiliation, curtails freedom and cast scars forever. Law makers know it so also the police.
There is a battle between the law makers and the police and it seems that police has not learnt its lesson; the
lesson implicit and embodied in the code of criminal procedure. It has not come out of its colonial image
despite six decades of independence; it is largely considered as a tool of harassment, oppression and surely
not considered a friend of public.

The need for caution in exercising drastic power of arrest has been emphasized time and again by the courts
but has not yielded the desired result. Power of arrest greatly contributes to its arrogance so also the failure
of the Magistracy to check it. Not only this, the power of arrest is one of the lucrative sources of police
corruption. The attitude to arrest first and then proceed with the rest is despicable. It has become a handy
tool to the police officer who lack sensitivity or act with oblique motive.

MANDATORY PROVISIONS

The Supreme Court of India, in order to ensure that police officer do not arrest the accused
unnecessarily and magistrate do not authorize detention, the Court giving the following directions:

1. All the State Governments should instruct its police officers not to automatically arrest a person
when an offence under section 498-A of the Indian Penal Code is registered. The necessity of arrest
arises when the case falls under the parameter of Section 41 of the Code of Criminal Procedure.

2. All police officers be provided with the check list containing specified clauses under Section 41
(1) (b) (ii).

3. The police officer shall forward the check list duly filed and furnished with the reason and material
necessitated the arrest while producing accused before the magistrate for further detention.

4. The magistrate while authorizing the order of further detention shall rely upon the report furnished
by the police officer and only after recording the reason duly furnished on Police report and on
the satisfaction, the Magistrate will authorize further detention.

5. The decision not to arrest an accused be forwarded to Magistrate within two weeks from the date of
institution of the case with a copy of Magistrate which may extended by the Superintendent of police
of the district for the reason to be recorded in writing.

6. Notice of Appearance in terms of Section 41-A of the Code of Criminal Procedure be served upon
the accused within two weeks from the date of institution of case which may be extended by the
Superintendent of Police after recording the reason in writing.

7. Failure to comply with the directions mentioned above shall rendered the police officer liable to be
punished for contempt of court before High Court having jurisdiction.

8. Authorizing detention by the Judicial Magistrate without recording the reason, the concerned Judicial
Magistrate shall be liable for Departmental Proceedings by the High Court.
The court pointed out that the legislature, even after these grave situations, has not introduced any changes.
Further, based on the 177th Law Commission, the parliament intervened and passed Section 41 of CrPC.
Further, the court observed that Section 41 was necessary to curb indiscriminate arrests.

EFFECTS OF THE SUPREME COURT JUDGEMENT

This judgement had several ramifications for police officers, jurists, and the members of society. This
was the first time the court laid down comprehensive guidelines recognising the existence and negative
effects of indiscriminate arrests. The court also specified severe consequences of not adhering to the
established guidelines. This judgement has been the guiding light for several cases. The court in subsequent
cases, analysed compliance with the guidelines laid down in the Arnesh Kumar case and on violation
dismissed the arrest.

Further, this case also impacted the law enforcement bodies. Law enforcement bodies are being forced to
abide by these guidelines to avoid departmental action. Several law enforcement bodies have actively begun
adhering to these guidelines fearing the negative consequences. Additionally, this case establishes a three-
layered protection against misuse of power to arrest. First, it laid down guidelines for the police to follow,
secondly, this case also mandates supervision by the magistrate while allowing or dismissing the police’s
application for detention. Thirdly, this case also laid down a checklist of guidelines that the court needs to
look for while deciding the application for bail or illegal arrests.

CONCLUSION
The case of Arnesh Kumar vs. State of Bihar (2014) is an important judgement for constitutional and
criminal cases. The court recognised the menace of arbitrary arrests even in non-cognisable offences.
Further, the court analysed the misuse of Section 498A of IPC and Section 4 of the Dowry Prohibition Act
by wives seeking to get back at their husbands or their relatives. The court observed the vulnerability of
misuse of these Sections and observed that it was necessary to lay down guidelines. Though this case related
to the offence of Domestic violence, the court laid down universal guidelines to be followed while arresting
and detaining persons accused of offences punishable with seven years or lesser imprisonment. The court
laid down that the police officers must prepare a checklist, specifying reasons for arrest in accordance with
Section 41A of CrPC. Further, magistrates are also required to properly peruse the reasons provided by the
police with the application for detention and state proper reasons for allowing or dismissing the same. Non-
compliance by the police or magistrate with the above guidelines would lead to strict departmental action
against them.
 REFERENCES
ACTS:

Bhartiya Nagarik Suraksha Sanhita,2023

Code of Criminal Procedure,1973

Constitution of India Act,1982

WEBSITES:

https://indiankanoon.org/doc/2982624/ Accessed on 25 October,2024

https://digiscr.sci.gov.in/view_judgment?id=OTEzNw== Accessed on 26 October,2024

https://blog.ipleaders.in/arnesh-kumar-vs-state-of-bihar-2014/ Accessed on 28 October,2024

https://www.drishtijudiciary.com/landmark-judgement/code-of-criminal procedure/arnesh-kumar-v-state-of-
bihar-2014-8-scc-273 Accessed on 30

October,2024