Section 46(4) Cr.PC: Madras High Court directs to State Government to frame proper guidelines to arrest woman at night.

 

Madras High Court directs the State Government to frame proper guidelines for obtaining ‘prior permission’ of Judicial Magistrate to arrest women at night in exceptional circumstances.

 

The High Court of Madras has issued a direction to the State Government to ensure compliance of Section 46 of the Criminal Procedure and to frame guidelines for obtaining ‘prior permission’ of Judicial Magistrate to arrest women at night in exceptional circumstances.

          A writ Petition under Article 226 of Constitution of India was filed by Salma, a journalist directing the respondent, State of Tamil Nadu to pay a compensation of 25 lakhs and to take disciplinary action against the police, who arrested her under Section 75(1)(c) of the Tamil Nadu Police Act 1988, Section 506(1) and 505(1) (b) of the Indian Penal Code based on a complaint. The complainant, a member of All India Anna Dravida Munnetra Kazhagam claimed that pamphlet received from the petitioner contained defamatory observations about the then Chief Minister of Tamil Nadu and was also distributing the same to the public..

She was thus charged under Tamil Nadu Police Act and the IPC for riotous behaviour in a public place and for making statements conducing to public mischief. She was arrested at 10 PM, incarcerated for two days and was released on bail thereafter. By a judgment, the petitioner was acquitted of all the charges as alleged. The petitioner claimed that the respondent police physically touched her soldier. The petitioner then filed a writ petition under Article 226 with prayers to compensate her and to initiate disciplinary action against the concerned police officers. It was also prayed that her arrest at 10 PM at night time was illegal by relying on a provision under Section 46 (4) of the Cr.PC.  Section 46 deals with the procedure to be followed in making an arrest which also  places an absolute bar on the arrest of women before sunrise and after sunset, except under exceptional circumstances. Where such exceptional circumstances exist or arise, the arrest shall be carried out, by a woman police officer, or in the presence of a woman police officer, and only after making a written report and obtaining prior permission of a Judicial Magistrate of first class within whose local jurisdiction the offence is committed or the arrest is to be made.

 

          Before the High Court, petitioner contended that no woman police officer was present at the time of arrest but the High Court found the fact to be factually incorrect as a woman police constable had accompanied the Inspector of Police

         

She made contention that no prior permission from the Judicial Magistrate was obtained by taking reliance on the case of Kavitha Manikikar of Mumbai vs. Central Bureau of Investigation (2018) and Barathi S. Khandhar vs. Maruti Govind Jadhav and Others (2012). The decisions in the case emphasises mandatory nature of Section 46(4) of the Cr.PC.

 

On the contrary Additional Advocate General stated that though compliance under Section 46(4) is mandatory with all condition thereunder yet, immediate arrest is permitted in exceptional cases and the requirement for submission of written report for obtaining prior permission of the Judicial Magistrate can be post-arrest.  

 

Such procedure would delay the arrest, creating avenues for law and order disturbance and danger to the public – State countered.

 

Dr. Anita Sumanth, Justice  noted, the Hon'ble Supreme Court have taken note of the ground reality that strict implementation of the directions may not be practical and legislature has been far more restrictive in the construction of Section 46(4) of the Cr.P.C. Evidently, this construction  bears note of the possibilities for abuse of discretion, if provided, in such a situation, by the police authorities.

         

          The Court examined, the defence of the respondent, that exceptional circumstances would preclude the necessity for compliance with this condition, does not align with the statutory mandate.

 

“The recognition accorded to ‘exceptional circumstances’ only carves out an exception to the absolute bar subject to satisfaction of conditions” – the Court added.

 

“37. The conditions are two-fold: (i) necessitating the presence of a woman police officer and (ii) obtaining prior permission from a Judicial Magistrate by submission of written report. There is no elbow room provided 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 arrest of the petitioner”-  judgment reads.

 

“As a foot note, I believe that it would be, in the fitness of things, for the authorities to apply their mind to this question and frame appropriate guidelines to ensure compliance with the mandates under Section 46(4) even in exceptional, urgent and emergent situations” – Hon’ble Justice said.

 

The Hon’ble Court also added –

“After all, in today’s times of advanced technology, permission/sanction can well be obtained electronically/digitally in an instantaneous manner, ensuring that proper electronic trail and record of such sanction, is obtained and preserved”.

 

The Hon’ble High Court, in the present case did not allow the prayer for the writ of Mandamus but only directed the State Government to frame proper guidelines for obtaining ‘prior permission’ of Judicial Magistrate to arrest women at night in exceptional circumstances, for the reason that the High Court found that the decision of the police authorities to arrest was not perverse.

 

The Court also held that – the  relief sought for by the petitioner is a discretionary one, in exercising which, this Court will be guided by not just the explicit language of Section 46(4), but the spirit, object, purpose as well as practical considerations of implementing the same.

 Also Read:

Whether Magistrate can dismiss criminal complaints because of non-appearance of complainant?

Case:

 S. Salma vs The State of  Tamil Nadu and Others.  (WP.No.29972 of 2015)

Judgment pronounced on 16.06.2023.

Click here for judgment.