The Tamil Nadu State Government was recently directed by the Madras High Court to frame guidelines in accordance with Section 46(4) of the Code of Criminal Procedure (CrPC) when arresting a woman after sunset in special circumstances [S Salma v The State]
Section 46 (4) of CrPC prohibits the arrest of a woman after sunset except in special circumstances. In such circumstances, the woman will be arrested only in the presence of a woman police officer after filing a written report and obtaining permission from the Judicial Magistrate First Class of that particular local area.
Facts of the Case
The Petitioner, Salma is a journalist by profession and filed a plea in the court for seeking compensation of Rs. Twenty-Five Lakhs against her illegal arrest that took place on September 2012. A member of the Anna Dravida Munntre Kazhagam (AIADMK) party registered a complaint against Salma as she was found distributing pamphlets that contained defamatory observations about the then Chief Minister of Tamil Nadu. When questioned about the actions she threatened the complainant. This led to her arrest around 10 p.m. She claimed that the Inspector of Police, Coimbatore had physically touched her shoulder during the arrest and was produced before the Judicial Magistrate at 1 a.m. after which she was sent to judicial custody and two days later was released on bail. Salma challenged the conduct of her arrest as there was no woman police officer present nor prior permission from the Judicial Magistrate First Class was obtained.
The Respondents, however, argued that the Grade I woman police officer was present during the time of arrest, and concerning the second allegation the Respondents stated that obtaining the written report for prior permission would allow the accused to disturb further the law and order. Given the circumstances, the police had filed for the report after the arrest.
Judgment by Court
Justice Anita Sumanth noted:
“(i) there is an absolute bar generally as against the arrest of a woman prior to sunrise and after sunset on any given day. Legislature has noted the possibility of exceptional circumstances and has carved out an exception in such situations.”
“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”
The Court concluded that Ms. Shanthi Priya (Police Officer) was present at all times during the arrest, thus condition (a) of Section 46(4) was fulfilled. Whereas (b) was carved out as an exception although the conditions are not in alignment with the Code. Hence, there was a lapse in the procedure which needed to be examined.
The Court refused to grant compensation to the Petitioner and directed the state to frame guidelines to ensure compliance with Section 46(4) of the CrPC within a period of eight weeks from the date of receipt of a copy of this order.
Source: Bar and Bench, LiveLaw