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Women’s Arrest and Section 46(4) of CrPC
Context:
The Madurai Bench of the Madras High Court’s ruling in Deepa vs. S. Vijayalakshmi and Others sheds light on the interpretation of Section 46(4) of the Criminal Procedure Code (CrPC), which restricts the arrest of women after sunset and before sunrise, and its applicability in the context of Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023.
Historical Context of Section 46(4) CrPC
- The provision on the arrest of women after sunset has its roots in the 135th Report of the Law Commission of India (1989), which recommended restrictions on the arrest of women after dark.
- The recommendations were aimed at protecting women’s dignity and safety, considering the risks involved in such arrests.
- The 154th Law Commission Report (1996) reiterated this, and Section 46(4) was subsequently introduced in the CrPC in 2005.
- The intention behind this provision was to safeguard women from arbitrary or unjustified arrests, particularly during vulnerable hours. It was meant to ensure that women are not subjected to detention under questionable circumstances, especially at night.
The Legal Safeguards for Women’s Arrest
- Under Section 46(4) of the CrPC and Section 43(5) of BNSS, certain safeguards are established to protect women during their arrest.
- Specifically, two main safeguards are laid out:
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- No arrest after sunset and before sunrise: The arrest of a woman is prohibited after sunset and before sunrise, except in exceptional circumstances.
- Permission of the jurisdictional magistrate: Even in exceptional cases, prior permission must be obtained from a jurisdictional magistrate. The arresting woman police officer must submit a written report to the magistrate to seek this permission.
- Additionally, the CrPC’s proviso to Section 46(1) mandates that the arresting police officer should not touch a woman unless a woman police officer is present, or if the situation otherwise demands it.
What Did the Madras High Court Rule?
- The Madras High Court ruled that Section 46(4) of CrPC is directory and not mandatory. This means that while the provision sets a guideline, it does not make the arrest illegal if it occurs during restricted hours (after sunset and before sunrise) without meeting the criteria set out (such as exceptional circumstances or prior permission from a magistrate).
- The key reasons for this ruling were:
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- Lack of Consequences for Non-Compliance: The Court noted that Section 46(4) of CrPC does not specify any consequences for non-compliance. Had the provision been intended to be mandatory, the legislature would have included such consequences.
- Public Interest Considerations: The Court acknowledged that in cases where a heinous crime is committed by a woman during night hours and it is impractical to obtain permission from a magistrate (due to unavailability), strict adherence to the provision could hinder justice.
- In such a scenario, the accused woman could escape without facing arrest, which may go against the public interest.
Supreme Court’s Stance
- The Supreme Court has also weighed in on similar issues. In a case handled by the Nagpur Bench of the Bombay High Court, the court directed that no woman should be detained without the presence of a female constable and certainly not after sunset or before sunrise.
- The Supreme Court recognised that rigid compliance with this directive in every circumstance could pose practical difficulties, reflecting a more flexible approach similar to the High Court’s ruling.
Will the Madras High Court Ruling Dilute the Provision?
- Despite the ruling that Section 46(4) of the CrPC is directory, the Madras High Court has made it clear that this provision cannot be ignored or rendered futile.
- While non-compliance with the provision does not automatically make the arrest illegal, the police officer must provide a valid explanation if they fail to comply with the statutory requirements.
- The Court also directed the police to establish clearer guidelines on what constitutes “exceptional circumstances” under which the arrest of a woman after sunset or before sunrise may be allowed. This step aims to ensure that the provision’s intent—to protect women from arbitrary and unsafe arrests—is still upheld.
