Key Judgment (Deepa vs. S. Vijayalakshmi & Others)
The Madurai Bench of the Madras High Court ruled that the provision restricting the arrest of women between sunset and sunrise is directory, not mandatory.
The case arose when a woman was arrested at 8 PM, violating Section 46(4) of the Code of Criminal Procedure (CrPC).
A Single-Judge Bench initially ruled the arrest as illegal.
A Two-Judge Bench later held that non-compliance does not automatically make the arrest unlawful, as the provision lacks consequences for violations.
Provisions of Section 46(4) of CrPC / Section 43(5) of BNSS, 2023
Restriction: Women cannot be arrested after sunset and before sunrise, except in exceptional circumstances.
Procedure: If an exceptional case arises, the prior permission of the jurisdictional magistrate must be obtained by a woman police officer through a written report.
Safeguards:
The provision is meant to protect the safety of women in custody.
It does not define what qualifies as an “exceptional circumstance.”
As per Section 46(1) proviso, a male officer cannot touch a woman during an arrest unless a woman officer is unavailable, and the situation demands it.
Key Observations by the Madras High Court
Section 46(4) of CrPC does not specify penalties for non-compliance.
If Parliament had intended for it to be mandatory, consequences for violations would have been explicitly provided.
A police officer’s duty to prevent crime and ensure justice should not be compromised due to rigid adherence to procedural norms.
In cases where a heinous crime is committed by a woman at night, and a magistrate is unavailable, a strict application of the provision could allow the accused to escape justice.
Practical implementation should prioritize public interest while maintaining safeguards.
History and Evolution of Section 46(4) CrPC
Law Commission of India’s 135th Report (1989): Recommended that women should not be arrested at night except in urgent cases with prior permission from a superior officer.
154th Report (1996): Reaffirmed the need for special provisions for the arrest of women.
CrPC Amendment (2005): Incorporated Section 46(4), incorporating these recommendations.
Supreme Court’s View on the Arrest of Women
The Nagpur Bench of the Bombay High Court ruled that women should not be detained at night without the presence of a woman constable.
The Supreme Court acknowledged that strict adherence to this directive may cause practical difficulties in certain cases.
Impact of the Madras High Court Ruling
The ruling does not dilute the provision, but clarifies its flexibility in exceptional cases.
Police officers must justify their inability to comply with the requirement in case of deviations.
Guidelines should be issued to define what constitutes an “exceptional circumstance” to prevent misuse of discretionary power.
