Citing very low conviction rate in such cases, it directed the state governments to instruct police "not to automatically arrest when a case under Section 498A of IPC is registered but to satisfy themselves about the necessity for arrest under the parameters (check list) provided under Section 41 of criminal procedure code".
Section 41 lays down a 9-point check list police to weigh the need to arrest after examining the conduct of the accused, including possibility of his absconding.
Expressing exasperation over rampant misuse of Section 498A, a bench of Justices C K Prasad and P C Ghose said if police arrested the accused, the magistrate should weigh the preliminary evidence against the Section 41 checklist before allowing further detention.
"The magistrate, while authorising detention of the accused shall peruse the report furnished by the police officer in terms of Section 41 and only after recording its satisfaction, the magistrate will authorize detention," the bench said.
It also said that this check-list for arrest and detention would apply to all offences, which are punished with a prison term less than 7 years. Punishment under Section 498A is a maximum of three years but it had been made a cognizable and non-bailable offence, which made grant of bail to the accused a rarity in courts.
But the court singled out the dowry harassment cases as the most abused and misused provision, though the legislature had enacted it with the laudable object to prevent harassment of women in matrimonial homes.
Writing the judgment for the bench, Justice Prasad said there had been a phenomenal increase in dowry harassment cases in India in the last few years. "The fact that Section 498A is a cognizable and non-bailable offence has lent it a dubious place of pride amongst the provisions that are used as weapons rather than shield by disgruntled wives," he said.
"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 husbands, their sisters living abroad for decades are arrested," he said.
The bench quoted "Crime in India 2012 Statistics" published by National Crime Records Bureau to say that nearly 2 lakh people were arrested in India in 2012 under Section 498-A, which was 9.4% more than in 2011.
"Nearly a quarter of those arrested under this provision in 2012 were women i.e. 47,951 which depicts that others and sisters of the husbands were liberally included in their arrest net. Its share is 6% out of the total persons arrested under the crimes committed under Indian Penal Code. It accounts for 4.5% of total crimes committed under different sections of penal code, more than any other crimes excepting theft and hurt," it said.
"The rate of charge-sheeting in cases under Section 498A is as high as 93.6%, while the conviction rate is only 15%, which is lowest across all heads. As many as 3,72,706 cases are pending trial of which on current estimate, nearly 3,17,000 are likely to result in acquittal," the bench said illustrating the misuse of Section 498A as a tool to harass husband and his relatives.
Describing arrest as a humiliating experience apart from curtailing the freedom, the bench said police have not shed their colonial hangover despite six decades of independence and were still considered "as a tool of harassment, oppression, and surely not considered a friend of public".
The need for caution in exercising the drastic power of arrest had been emphasized time and again by courts but has not yielded results, the court said and tasked the magistrates to check illegal arrests.
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