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Synopsis

The Madras High Court has held 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," said the bench of Justices G.R. Swaminathan and M. Jothiraman.

Court set aside disciplinary proceedings initiated against police officers for arresting a woman at night without prior approval from the concerned judicial magistrate, stating that while adherence to the provision is essential, non-compliance does not automatically render an arrest illegal.

One S. Vijayalakshmi (the respondent) was taken into custody by police officers in Madurai on January 14, 2019, at around 8:00 p.m. without prior approval from a judicial magistrate. Seeking action against the police officer, the woman approached the high court. A single-judge bench of the high court termed the arrest illegal and directed the authorities to initiate disciplinary proceedings against the officers involved, in addition to awarding compensation to the woman. The affected officers, including a sub-inspector and a woman head constable, challenged this decision before the present division bench.

The division bench overturned the single judge's decision, emphasizing that while Section 46(4) of CrPC aims to safeguard women, it does not strictly invalidate arrests conducted at night without judicial permission. The court reasoned that a provision framed in negative language does not necessarily imply mandatory enforcement and must be interpreted in light of legislative intent, practical realities, and the interests of justice.

While pointing out that though Section 46(4) of Cr.P.C / 43(5) of BNSS, 2023 uses the expression “Shall”, the bench said that 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.

"Mechanical adherence to procedures can injure public interest at times," the bench observed, illustrating scenarios where immediate arrest may be necessary, such as in cases of serious offences committed by women. "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. 

Court further noted that while police officers must justify deviations from the prescribed procedure, the law does not stipulate an automatic consequence for violations, which suggests that the provision is directory. "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," said the bench

The court, however, declined relief to Sub-Inspector Deepa, who had made the arrest, noting discrepancies in her statements regarding the circumstances leading to Vijayalakshmi’s detention. 

On the other hand it allowed the writ petition filed by Women Head Constable Krishnaveni who had carried out the arrest stating that she could not have disobeyed the order of her immediate 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," the bench said. 

Court also allowed the writ petition filed by Anitha, Inspector of Police who was admittedly not on the spot.

Despite ruling that the provision is not mandatory, the division bench underscored the importance of protecting women’s rights and ensuring procedural safeguards in arrests. In view of the same, it directed the Tamil Nadu Police Department to issue clearer guidelines defining "exceptional circumstances" that justify nighttime 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," the bench said.

Case Title: Deepa Vs. S.Vijayalakshmi and Others