No, you cannot be arrested immediately after a case under Section 85 BNS (cruelty against a married woman) is filed. The Supreme Court of India, through landmark judgments and guidelines, has emphasized the importance of a fair preliminary inquiry by the police before making arrests in Section 85 BNS cases. This ensures that there is no arbitrary detention and protects individuals from the misuse of the provision. Below is a detailed explanation of the procedures, legal safeguards, and guidelines related to arrests in Section 85 BNS cases.
Key Legal Guidelines Governing Arrests in Section 85 BNS
1. Supreme Court’s Judgment in Arnesh Kumar v. State of Bihar (2014):
This landmark case established clear guidelines to prevent misuse of Section 85 BNS. Key points from the judgment:
- Preliminary Inquiry by Police: Police must conduct a preliminary inquiry to verify the credibility of the allegations before arresting the accused.
- Approval by Senior Police Officials: Arrests in Section 85 BNS cases require approval from senior police officers, ensuring that they are not made frivolously.
- Compliance with Section 35 B.N.S.S: Police must issue a Notice of Appearance under Section 35 B.N.S.S. The accused must appear before the police for questioning.
Significance of the Arnesh Kumar Guidelines
The judgment curtails arbitrary arrests, especially in matrimonial disputes, and ensures that legal processes are followed with due diligence.
2. Role of Section 35 B.N.S.S
Under this provision:
- The police must issue a written notice to the accused to appear for questioning if the offense is punishable by less than seven years of imprisonment (which applies to Section 85 BNS).
- Arrest without issuing this notice can result in disciplinary action against the police officers.
3. Family Welfare Committees (FWC) (Modified in Later Judgments)
In Rajesh Sharma v. State of Uttar Pradesh (2017):
- The Supreme Court suggested creating Family Welfare Committees to scrutinize Section 85 BNS complaints before the police could register FIRs or make arrests. However, this provision has since been modified, and welfare committee intervention is no longer mandatory.
4. Prohibition of Automatic Arrests
Automatic arrests for Section 85 BNS cases are prohibited. Courts have frequently cautioned against making arrests without substantial evidence, as this can lead to harassment and misuse of legal provisions.
What Should You Do If a Section 85 BNS Case Is Filed?
1. File for Anticipatory Bail
- What is Anticipatory Bail? It is a pre-arrest bail that protects you from being detained by the police once a Section 85 BNS case is filed.
- Where to Apply? You can apply for anticipatory bail in the Sessions Court or High Court.
- Key Requirements for Granting Bail:
- Evidence of innocence or lack of wrongdoing.
- Proof that the allegations are malicious or false.
2. Cooperate with Police Investigation
- Attend questioning when summoned under Section 35 B.N.S.S
- Provide documentation or evidence that supports your case.
3. Collect and Preserve Evidence
To contest the allegations effectively:
- Maintain all forms of communication (texts, emails, phone recordings) with your wife or her family.
- Gather witnesses who can testify about your innocence or lack of cruelty.
- Preserve financial records, such as bank statements, to refute claims of dowry harassment.
4. File a Counter-Complaint
If you suspect the allegations are false, you can file a counter-complaint alleging:
- Defamation (Section 356(1) BNS).
- Filing a false case (Section 217 BNS).
- Extortion, if money was demanded (Section 308 BNS).
Arrest Procedure in Section 85 BNS Cases
- Filing of FIR: Once a complaint is filed, the police will register an FIR if the allegations are deemed serious.
- Preliminary Inquiry: The police are obligated to verify the truth of the allegations before making an arrest.
- Notice Under Section 35 B.N.S.S : Police will issue a notice requiring your appearance for questioning.
- Decision on Arrest: Only if there is credible evidence after the inquiry can the police proceed with an arrest.
Precautions to Take
- Do Not Ignore the Case: Respond to summons and court notices promptly.
- Hire a Lawyer: Engage a competent lawyer experienced in matrimonial and criminal law.
- Maintain a Cool Demeanor: Avoid arguments or actions that may aggravate the situation.
Penalties for Police Misconduct
If the police arrest you without following proper procedures:
- Legal Redress: You can approach the court for quashing the FIR or wrongful arrest.
- Disciplinary Action: Higher authorities may take action against the police for non-compliance with the Arnesh Kumar guidelines.
FAQs on Arrests in Section 85 BNS Cases
1. Can I be arrested immediately after my wife files a Section 85 BNS complaint?
No, as per the Supreme Court’s guidelines, arrests cannot be made without a preliminary investigation and compliance with Section 35 B.N.S.S.
2. What is the punishment under Section 85 BNS?
Section 85 BNS prescribes imprisonment of up to three years and a fine for cruelty against a married woman.
3. Do I need to inform my family if a case is filed?
Yes, informing family members ensures they are prepared for any legal action, and they can provide emotional and legal support.
4. Can my family members also be arrested in a Section 85 BNS case?
Yes, relatives of the husband are often implicated. They too are entitled to anticipatory bail and legal protection.
5. How can I prove my innocence?
Maintain documentation, present witnesses, and highlight inconsistencies in the wife’s allegations during legal proceedings.
Conclusion
While you cannot be arrested immediately after a Section 85 BNS case is filed, it is essential to stay vigilant and proactive. The law provides safeguards against misuse, including mandatory preliminary inquiries and the issuance of notices before arrest. By filing anticipatory bail, preserving evidence, and cooperating with investigations, you can protect yourself and your family from arbitrary arrests and false allegations. Always seek legal guidance to navigate the complexities of such cases effectively.
Disclaimer: This information is intended for general guidance only and does not constitute legal advice. Please consult with a qualified lawyer for personalized advice specific to your situation.
Adcocate J.S. Rohilla (Civil & Criminal Lawyer in Indore)
Contact: 88271 22304