Pranav B Prem

The Madras High Court has ruled that the prohibition on arresting women after sunset and before sunrise without judicial magistrate's permission, as outlined in Section 46(4) of the Code of Criminal Procedure (CrPC), is directory rather than mandatory."Section 46(4) of Cr.P.C 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," observed the bench comprising Justices G.R. Swaminathan and M. Jothiraman.

Background of the Case

The case arose from the arrest of S. Vijayalakshmi by police officers in Madurai on January 14, 2019, at approximately 8:00 p.m. without prior judicial approval. She subsequently approached the High Court, alleging that her arrest was illegal and sought action against the police officers involved. A single-judge bench deemed the arrest unlawful and directed disciplinary proceedings against the officers while awarding compensation to Vijayalakshmi. The officers, including a sub-inspector and a woman head constable, challenged this decision before the division bench.

Court’s Observations on Section 46(4) of CrPC

The division bench overturned the single judge's ruling, clarifying that "while adherence to the provision is essential, non-compliance does not automatically render an arrest illegal." The court reasoned that a provision framed in negative language does not necessarily imply mandatory enforcement and must be interpreted considering legislative intent and practical realities. While acknowledging that Section 46(4) of CrPC / 43(5) of BNSS, 2023 employs the term “shall,” the bench highlighted, "The construction of a statutory provision as directory or mandatory must depend on the legislative intent and context in which it was made and not upon the language in which the intent is clothed."

The court also emphasized that mechanical adherence to procedures could sometimes be impractical. "Let us conceive of this situation: a woman commits murder after sunset and before sunrise; the information reaches the local Police Station; the accused is about to escape; in such a situation, should the officer concerned prepare a written report, send it to the local Magistrate, wait for His Honour's permission and upon receipt thereof, proceed to arrest the accused?" the bench questioned.

Disciplinary Proceedings Against Officers

The court ruled in favor of Women Head Constable Krishnaveni, who had carried out the arrest, stating that she could not have defied the order of her superior. "Though illegal orders are not meant to be obeyed, the illegality must be evident on the face of it. In an Uniformed force, discipline is paramount. The conduct of Krishnaveni must be viewed from this perspective." Similarly, relief was granted to Inspector of Police Anitha, who was not present at the scene. However, the court declined relief to Sub-Inspector Deepa, who had executed the arrest, citing inconsistencies in her statements regarding the circumstances leading to Vijayalakshmi’s detention.

Guidelines for Future Arrests

Despite ruling that Section 46(4) is not mandatory, the court stressed the need to protect women’s rights and uphold procedural safeguards. The court directed the Tamil Nadu Police Department to formulate clear guidelines on what constitutes "exceptional circumstances" justifying night time arrests of women. "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 in its 154th report."

Cause Title: Deepa Vs. S.Vijayalakshmi and Others

Case No: W.A(MD)Nos.1155 of 2020, 1200 & 1216 of 2019

               and C.M.P(MD)Nos.6322, 10380 & 10467 of 2019

Bench: Justice G.R. Swaminathan,  Justice M. Jothiraman

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