Taking a divergent view from the Bombay High Court (Nagpur Bench), the Madras High Court (Madurai Bench) has held that Section 46(4) of CrPC which corresponds to Section 43(5) of BNSS, which prohibited the arrest of women after sunset and before sunrise without the permission of the Judicial Magistrate, is directory and not mandatory.
A Division Bench of Justices G. R. Swaminathan and M. Jothiraman observed that Section 46(4) of CrPC was inserted by Act 25 of 2005 with effect from June 23, 2006. The report of the Law Commission of India on Women in Custody (1989) recommended that ordinarily no women shall be arrested after sunset and before sunrise and in exceptional cases calling for arrest during these hours, prior permission of the immediate, superior officer shall be obtained or if the case was of extreme urgency, then after arrest report with reasons shall be made to the immediate superior officer and to the Magistrate.
Section 46(4) of CrPC has not spelt out the consequence of non-compliance with the requirement set out therein. If the provision was intended to be mandatory, the legislature would definitely have provided for the consequences of non-compliance. It cannot be denied that when a police officer effects arrest pursuant to the power conferred on him/her by CrPC, he/she is carrying out a public duty. The matter is not between the official effecting arrest and the arrestee. There is a third party involved, namely, victim / defacto complainant. The victim cannot be allowed to suffer for the neglect of duty by the police officer, the court observed.
The statutory provision envisages that the woman police officer should make a written report and obtain the prior permission of the Magistrate before making arrest. One can very easily imagine situations when the investigating officer is left with very little time to respond. Suppose a heinous offence takes place at midnight. The jurisdictional Magistrate may not be available or accessible. Digital solutions may not also work. The Magistrate may be fast asleep. The written report sent by mail would be lying in the inbox. The accused will not be waiting for the police officer to obtain permission from the Magistrate, the court observed.
Mechanical adherence to procedures can injure public interest at times. When the Nagpur Bench of the High Court of Bombay directed the State government to issue instructions to all police officials that no female persons shall be detained or arrested without the presence of the lady constable and in no case after sunset and before sunrise, the Supreme Court observed that while it agreed with the object behind the direction, a strict compliance with the direction in a given circumstance would cause practical difficulties to the investigating agency and even might give room for evading the process of law by unscrupulous accused, the court observed.
We are therefore of the view that it would not be in the interest of maintaining law and order if a police officer is expected to write to the local Magistrate and effect arrest only after obtaining prior permission. Such a stringent condition would disable police officers from effectively discharging their public duties, the court observed.
Though we have held that Section 46(4) of CrPC / Section 43(5) of BNSS is directory and not mandatory, the provision cannot be rendered otiose by the police. There is a laudable reason for incorporating such a provision. It is meant to serve as a note of caution to the officers effecting the arrest of women. While failure to adhere to the statutory requirement may not lead to the arrest being declared illegal, the officer concerned may have to offer explanation for inability to comply with the procedure, the court observed.
We direct the Police Department to issue further guidelines clarifying as to what would constitute exceptional situations. Even the State legislature can consider bringing a local amendment to Section 43 of BNSS on the lines suggested by the Law Commission of India, the court observed.
The court was hearing appeals filed by women police personnel who effected the arrest of a woman accused in a case in Madurai.
Published – February 08, 2025 06:24 pm IST