Section 46(4) CrPC Which Forbids Arrest Of Women Between Sunset & Sunrise Is Not Mandatory: Madras High Court
The Madras High Court, Madurai Bench was deciding a batch of Writ Appeals preferred against the Order of the Single Judge.
The Madras High Court held that Section 46(4) of the Criminal Procedure Code (CrPC)/ Section 43(5) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) which forbids arrest of women between sunset and sunrise is directory and not mandatory.
The Madurai Bench held thus in a batch of Writ Appeals preferred against the Order of the Single Judge, by which a Writ Petition was allowed.
A Division Bench comprising Justice G.R. Swaminathan and Justice M. Jothiraman observed, “Even though we are conscious that Section 46(4) of Cr.P.C is a beneficial provision incorporated to ensure the safety of women, we are unable to hold that it is mandatory. … Though we have held that Section 46(4) of Cr.P.C / 43(5) of BNSS is directory and not mandatory, the provision cannot be rendered otiose by the Police.”
Section 46(4) of CrPC/43(5) of BNSS forbids arrest of women between sunset and sunrise except in exceptional situations and even in exceptional situations, the prior permission of the jurisdictional Magistrate must be obtained.
Senior Advocate M. Subash Babu, Advocates S. Alagusundar, and W. Pamelin represented the Appellants while Government Advocate A. Albert James and Advocate S.R. Anbarasu represented the Respondents.
Brief Facts
The Respondent’s husband was engaged in the business of selling tyres and his brother was also running a similar business on the opposite side of his premises. The relationship between the brothers came under strain. The brother of the Respondent’s husband wanted to grab his premises and hence, he had allegedly obtained his signatures by force in blank stamp papers and fabricated a deed in his favour. Hence, her husband lodged a Complaint before the Police and when she went to her husband’s shop, she was allegedly threatened by his brother and he also videographed her. Resultantly, she lodged a Complaint and then a crime was registered. The local Police wanted the Respondent and her husband to withdraw the cases and since they refused, allegedly a false case was registered against them by the husband’s brother. Thereafter. The Respondent was arrested in front of her husband’s shop premises and was allegedly forcibly taken to the Police Station.
It was claimed that the Respondent was abused and beaten up and an inquiry was caused to her with knife. She was then taken to the hospital and remanded on the next day. She approached the higher authorities and since no action was taken, she went to the High Court seeking departmental action against the erring Police personnel and also for payment of compensation. The Single Judge came to the conclusion that there has been a clear breach of the mandate contained in Section 46(4) of CrPC which prohibited the arrest of women after sunset and before sunrise without the permission of the Judicial Magistrate. Hence, the disciplinary authority was directed to initiate departmental action against the Appellants and was also directed to pay Rs. 50,000/- to the Respondent. Being aggrieved, the Inspector of Police along with other police personnel (Appellants) approached the Division Bench.
Reasoning
The High Court in view of the above facts, noted, “Merely because a provision of law is couched in a negative language implying mandatory character, the same is not without exceptions. The Courts when called upon to interpret the nature of the provision, may, keeping in view the entire context in which the provision came to be enacted, hold the same to be directory (2005) 4 SCC 480 (Kailash vs Nankhu).”
The Court said that Section 46(4) of CrPC has not spelt out the consequence of non-compliance with the requirement set out therein and 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 by Cr.P.C, he 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”, it added.
The Court was 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 his/her prior permission and such a stringent condition would disable Police officers from effectively discharging their public duties.
“There is a laudable reason for incorporating such a provision. It is meant to serve as a note of caution to the officers effecting 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”, it further emphasised.
The Court remarked that it would be too much to expect from a Head Constable to seek clarification from her superior if she had obtained prior permission from the jurisdictional Magistrate.
“Though illegal orders are not meant to be obeyed, the illegality must be evident on the face of it. In a Uniformed force, discipline is paramount”, it also said.
Accordingly, the High Court allowed the Appeals of the Inspector of Police and Head Constable, set aside the Single Judge’s Order, but refused to allow the Appeal of the Sub Inspector of Police who arrested the Respondent.
Cause Title- Deepa v. S. Vijayalakshmi & Ors.
