Though you have not mentioned under what sections of law, the FIR has been registered against your husband, it appears from the details of your question that the FIR is perhaps under Sections 498-A and 406 of IPC.
Please note that the maximum punishment for both these offences is up to 3 years’ imprisonment.
Power of arrest is contained mainly in Section 41 of the Criminal Procedure Code, which was amended in 2010, as per which power to arrest in offences in which the maximum punishment is up to 7 years’ imprisonment was drastically curtailed and certain conditions were imposed. Moreover, the section uses the word “may… arrest” instead of “shall… arrest”, which means that arrest is not mandatory and depends on the requirements of the case. The relevant part of Section 41 of Cr.P.C. is reproduced as below;
“41. When police may arrest without warrant.—(1) Any police officer may without an order from a Magistrate and without a warrant, arrest any person—
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(b) against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years whether with or without fine, if the following conditions are satisfied, namely:—
(i) the police officer has reason to believe on the basis of such complaint, information, or suspicion that such person has committed the said offence;
(ii) the police office is satisfied that such arrest is necessary—
(a) to prevent such person from committing any further offence; or
(b) for proper investigation of the offence; or
(c) to prevent such person from causing the evidence of the offence to disappear or tampering with such evidence in any manner; or
(d) to prevent such person from making any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to the police officer; or
(e) as unless such person is arrested, his presence in the Court whenever required cannot be ensured,
and the police officer shall record while making such arrest, his reasons in writing:”
There are also certain judgments of the Supreme Court, which lay down that merely because there is a power to arrest, does not mean that this power must be mandatorily exercised in all cases.
In view of all these reasons, nowadays, police officers may not make arrest in all cases, especially where the maximum punishment is up to 7 years, as in your case.
However, you can try to explain to the police as to why arrest is necessary in your case. Or, may be that, after doing some initial investigation, the investigating officer may feel the necessity of arresting the accused person.
If you feel that the investigating officer is influenced by the accused (your husband) due to some mala fide reasons, then you can approach the higher police officers.
As regards the other issue of the police forcing you to take your minor son to the police station so that your husband could meet him there, the police has no power to do that. You need not agree to it, if you are not willing to do so.
Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.
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