The Madras High Court has recently ordered the Tamil Nadu government to develop uniform guidelines to ensure that police officers follow the mandate under Section 46(4) of the Code of Criminal Procedure (CrPC) when arresting a woman after sunset, even in exceptional circumstances.
In a March 16 ruling, Justice Anita Sumanth ordered the State to develop such guidelines within eight weeks of the decision.
Except in exceptional circumstances, Section 46 (4) of the CrPC bans the arrest of a woman after sunset. Even in such exceptional circumstances, a woman may be arrested after sunset only by or in the presence of a female police officer, after filing a written report and obtaining the prior permission of a judicial magistrate of the first class whose local jurisdiction the offence is committed or the arrest is to be made.
The High Court ruled that both conditions are mandatory and that the CrPC does not allow for any variation from either obligation.
“I believe it would be prudent for the authorities to consider this subject and provide appropriate rules to ensure compliance with the mandates under Section 46(4) even in extraordinary, urgent, and emergency situations. In this regard, appropriate recommendations should be given. Guidelines, as specified above, be framed and filed with the Court within eight (8) weeks on receipt of a copy of this order,” the single-judge ordered.
The Court was hearing a petition filed by a female journalist seeking ₹25 lakh in compensation for her arrest in 2012. The petitioner-woman was arrested after an AIADMK member filed a complaint alleging she was distributing pamphlets against the then Chief Minister J Jayalalithaa.
However, she was arrested around 10 p.m., and while a female police officer was there, the police had not sought prior permission from the Magistrate.
The police, on the other hand, contended that the woman was distributing the offensive leaflets to a politically aroused crowd and that she was arrested to avoid law and order problems. As a result, given the extraordinary circumstances, the requirement for prior approval might be waived. The written report was filed by the police after the arrest.
However, Justice Sumanth stated that, while there was no perversity in the arrest itself, the impact of the procedural breach needed to be investigated.
“The conditions are twofold: (i) the presence of a female police officer is required, and (ii) prior permission from a Judicial Magistrate is obtained through the submission of a written report. There is no leeway in this regard, and on a plain and simple reading of Section 46(4), it was incumbent upon the authorities to have submitted a written report to the Judicial Magistrate concerned and obtained prior permission for the petitioner’s arrest,” the High Court stated.
The Court denied the petitioner-woman any compensation. It did, however, state that the legal question of the impact of the procedural error on a woman’s detention would be decided in a more appropriate manner.
As a result, it ordered the State to develop guidelines to guarantee compliance with the mandate under Section 46(4) of the CrPC.
“After all, in today’s advanced technological age, permission/sanction can be obtained electronically/digitally in an instantaneous manner, ensuring that proper electronic trail and record of such sanction is obtained and preserved,” the Court stated.
