HOW TO TAKE ACTION AGAINST POLICE OR MAGISTRATE FOR 498A ARREST WITHOUT FOLLOWING CRPC 41, 41A
How to initiate action against police or magistrate
1. The complaint against police will lie as both a departmental action started by senior police officers, and a contempt of court complaint in high court having jurisdiction over the police station. One should start with departmental action at the least.
2. The complaint against magistrate can be filed to the High court registrar/administrative department of high court having jurisdiction over magistrate's court.
In the Arnesh Kumar SC judgment, the 6 points at end of the judgment give all the steps which police needs to follow in line with CrPC 41 and 41A; those 6 points are reproduced verbatim below:
(1) All the State Governments to instruct its police officers not to automatically arrest when a case under Section 498-A of the IPC is registered but to satisfy themselves about the necessity for arrest under the parameters laid down above flowing from Section 41, Cr.PC;
(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 filed 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 authorising 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 authorise 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 41A of Cr.PC 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;
Now after the above 6 points, follow the main points (7) and (8) in the Arnesh Kumar SC judgment (the headlines are mine, not part of judgment), which defined what action can be taken against police or magistrate or both of them.
Penal actions on police for arbitrary arrests under IPC 498a (and other offences up to 7 years punishment)
(7) Failure to comply with the 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 High Court having territorial jurisdiction.
Penal actions on magistrates for routinely allowing arrests without scrutiny
(8) Authorising detention without recording reasons as aforesaid by the judicial Magistrate concerned shall be liable for departmental action by the appropriate High Court.
So what you need to do is check if the points (1) to (6) were followed or not fully. If not, then using points (7) and (8) above you can approach senior police or high courts against police and magistrates for action against them. Below is how various combination of scenarios will work out in any 498A case.
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Possible scenarios after 498A FIR is filed with respect to police and CrPC 41, 41A
1. Happy scenario of law abiding police: Police follows CrPC 41 and 41A procedures, and sends notice of appearance under CrPC 41A to accused husband/his family. This seems to be happening in most of cases these days. If the accused cooperate, the police cannot do anything except call them maybe couple of times and take their statement etc.
2. Law abiding police, but accused go into hiding: Police follows CrPC 41 and 41A procedures, and sends notice of appearance to accused husband/his family. The accused husband/family lose nerve fearing arrest, and instead of complying with notice, they go absconding trying to get an anticipatory bail in the meantime. As per law (don't ask me about the CrPC sections, I am not studying to become a lawyer), they can be declared absconders from law. If they get anticipatory bail while absconding, well and good, but if they don't, then they will have no choice left but appear in front of court and surrender, and hope to get bail same day or else get remanded to judicial custody. In most places, people get bail after 3 days maximum but in few dark corners of India where men's rights has not penetrated fully, it may happen only after 14-15 days.
3. Police follows oppressive tactics: Police does not follow CrPC 41 and 41A procedures, and arrest husband/family members arbitrarily and without reason, and police has no good evidence to show to court why arresting the accused was necessary. Now when the accused are produced in front of magistrate, the magistrate has to look at the 6 points given above in Arnesh Kumar SC judgment, and if those points were not followed, then point (7) of the judgment can be used against police. The magistrate finds from the records given by police that they did not follow the CrPC 41A procedure, and grants bail to accused, and also orders for departmental action against police personnel. In fact, in order pasted at end of post, the Punjab and Haryana HC has done exactly that and started departmental action against police personnel by following point (7) of judgment.
4. Police oppressive, magistrates sleeping on job: Same scenario as in point 3 above, where police does not follow CrPC 41 and 41A procedures, and arrest husband/family members arbitrarily and without reason, and police has no good evidence to show to court why arresting the accused was necessary. But what happens now is that the magistrate also does not do the job as he is expected to do, and does not check whether police recorded reasons for arrest, and/or whether the reasons recorded for arrest were justified or not. Now in this case, both police and magistrate have failed and they are both liable for penal action against them. Now along with point (7) against police, point (8) against magistrate will also come into play.
