A police patrol car parked on the main road near the Juinian Hill Checkpoint near Hyderabad in 2019. Image source: Nagara Gopal
Story so far: Madurai of Madras High Court Deepa and S. Vijayalakshmi et al. The law ruled in the 2023 Bharatiya Nagarik Suraksha Sanhita (BNSS) limits the catalog of arrests of a woman after sunset and before sunrise, rather than mandatory. In this case, a woman was arrested at 8 p.m. A judge in the High Court ruled that the arrest was a violation of section 46(4) of the Criminal Procedure Code (CRPC). However, two judges of the High Court ruled in the appeal that CRPC Section 46(4) is a catalogue, not a mandatory one.
What is security?
Under Article 43(5) of the BNSS (corresponding to Article 46(4) of the CRPC), a woman was arrested by the police, providing two safeguards. First, women are not allowed to be arrested after sunset and before sunrise unless in special circumstances. Secondly, even in exceptional circumstances, the female police officer must seek the prior permission of the magistrate of the jurisdiction through written reports. Section 46(4) of CRPC is a beneficial provision to ensure the safety of women. However, this provision cannot explain what would constitute a special case. Furthermore, in Article 46(1), the arrest of a police officer shall not touch the woman unless it is a woman police officer, or if otherwise required.
What does Madras HC dominate?
The Madras High Court said that Article 46(4) of CRPC did not specify the consequences of the non-compliance of the provision. If the provision is mandatory, the legislature will certainly provide for the consequences of non-compliance. A police officer who influences arrest is responsible for public duties. The court stressed that in some cases a woman committed an outrageous crime at night and that a magistrate may not be able to obtain permission. In this case, the defendant woman may escape. Therefore, this mechanical compliance may harm the public interest.
Article 46 (4) What is the history of CRPC?
The 135th report of the Indian Legal Women’s Guardianship Commission (1989) recommends that no arrests of women should be normally not be made before sunset and sunrise. If there are exceptions, prior permission from the direct superior official should be obtained, or the case is very urgent, an arrest report should be submitted to the direct superior official and the magistrate judge. Similar recommendations were made in the 1996 Law Commission Report No. 154, and some changes were made in CRPC Article 46 (4) in 2005.
What did the Supreme Court say?
In the case, the Nagpur bench at the Mumbai High Court directed the state to issue instructions to all police officers that there are no women’s officers present and that no women will be detained after sunset and before sunrise. Here, the Supreme Court pointed out that, in a given case, strict compliance with the above directives would create practical difficulties.
Will the ruling dilute the provisions?
The Court made it clear that although Article 46(4) of CRPC/43(5) was used as a catalog and not as mandatory, the provision was not futile for the police. While non-compliance with statutory requirements may not result in an arrest being declared illegal, the officer may have to provide an explanation to avoid complying with the provision. The court also directed the police to issue guidelines and clarified what special circumstances constituted.
RK Vij is a former IPS official.
publishing – February 26, 2025 at 08:30 am IST
