The Madras High Court has stated that Section 46(4) of the CrPC, which prohibits the arrest of women from sunset to sunrise, is not mandatory.
The Madras High Court ruled that Section 46(4) of the Criminal Procedure Code (CrPC) and Section 43(5) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), which prohibits the arrest of women from sunset to sunrise, is not mandatory but directory. This decision came from the Madurai Bench in response to several Writ Appeals against a Single Judge’s Order that had allowed a Writ Petition. The Division Bench, consisting of Justice G.R. Swaminathan and Justice M. Jothiraman, stated, “While we recognize that Section 46(4) of Cr.P.C is intended to protect women, we cannot classify it as mandatory. … Although we have determined that Section 46(4) of Cr.P.C / 43(5) of BNSS is directory, it should not be ignored by the Police.”
Section 46(4) of CrPC/43(5) of BNSS prohibits the arrest of women during the night unless in exceptional cases, where prior approval from the relevant Magistrate is required. Senior Advocate M. Subash Babu, along with Advocates S. Alagusundar and W. Pamelin, represented the Appellants, while Government Advocate A. Albert James and Advocate S.R. Anbarasu represented the Respondents.
The Respondent’s husband sold tyres, and his brother ran a similar business nearby. Their relationship became tense when the brother allegedly tried to take over the Respondent’s husband’s business. He reportedly forced the husband to sign blank stamp papers and created a fake deed for himself. The husband filed a complaint with the police. When the Respondent visited her husband’s shop, his brother allegedly threatened her and recorded the incident. This led her to file a complaint, resulting in a crime report. The local police pressured the Respondent and her husband to drop their cases, but when they refused, the husband’s brother allegedly filed a false case against them. The Respondent was arrested outside her husband’s shop and taken to the police station against her will.
It was reported that the Respondent faced abuse and was threatened with a knife. She was taken to the hospital and then remanded the next day. After no action was taken by higher authorities, she approached the High Court for disciplinary action against the police and compensation. The Single Judge found that the police violated Section 46(4) of the CrPC, which prohibits the arrest of women after dark without a Judicial Magistrate’s permission. The disciplinary authority was ordered to take action against the police officers and to pay the Respondent Rs. 50,000. The Inspector of Police and other officers (Appellants) were unhappy with this decision and appealed to the Division Bench.
The High Court observed that just because a law is written in a negative way suggesting it is mandatory, there can still be exceptions. When interpreting such laws, courts should consider the full context in which they were created and may decide that the law is actually advisory (2005) 4 SCC 480 (Kailash vs Nankhu). The Court pointed out that Section 46(4) of the CrPC does not specify what happens if the requirements are not followed. If the law was meant to be mandatory, the lawmakers would have included consequences for non-compliance. The Court emphasized that when a police officer makes an arrest under the Cr.P.C, he is performing a public duty. This situation involves not just the officer and the person being arrested, but also a third party, the victim or complainant. The victim should not have to suffer due to the police officer’s failure to fulfill his duties.
The Court believed that requiring a Police officer to write to the local Magistrate for permission before making an arrest would hinder law and order. Such a strict rule would prevent officers from performing their duties effectively. The Court noted that this provision serves as a warning for officers arresting women. While not following this requirement may not make the arrest illegal, the officer must explain why they did not follow the procedure. The Court also stated that it is unreasonable to expect a Head Constable to check with her superior about prior permission from the Magistrate. It emphasized that while illegal orders should not be followed, the illegality must be clear. Discipline is crucial in a uniformed force. As a result, the High Court approved the Appeals of the Inspector of Police and Head Constable, overturned the Single Judge’s Order, but denied the Appeal of the Sub Inspector of Police who made the arrest.
Cause Title: Deepa v. S. Vijayalakshmi & Ors.
