Clarify guidelines on arresting women after sunset: Madras High Court

MADURAI: The Madurai Bench of the Madras High Court held that Section 46(4) of the CrPC, which prohibits the arrest of women before sunrise and after sunset hours without prior permission from the judicial magistrate, is directory and not mandatory. The court also directed the police department to issue further guidelines clarifying what would constitute exceptional situations under the section.

A division bench of Justices GR Swaminathan and M Jothiraman further said the state legislature also can consider bringing a local amendment to Section 43 of BNSS on the lines suggested by the Law Commission of India. It would not be in the interest of maintaining law and order if a police officer is expected to write to the judicial magistrate and effect arrest only after obtaining the prior permission. Such a stringent condition would disable police officers from effectively discharging their public duties, the court stated. While failure to adhere to the statutory requirement may not lead to the arrest being declared illegal, the officer concerned may have to offer an explanation for the inability to comply with the procedure. Even though Section 46(4) of CrPC is beneficial to ensure the safety of women, the court is unable to hold that it is mandatory.

The Madras High Court, in an earlier case, had directed the authorities to frame appropriate guidelines in this regard and the Deputy General of Police had issued guidelines governing the arrest of women. However, the guidelines merely reiterate the statutory language and they do not appear to shed light on the problem that may be faced by the arresting officers tasked with discharging public duty.

The court was issuing the direction while hearing a batch of three appeal petitions filed by a police inspector, a sub-inspector and a head constable seeking to quash the single judge order of the Madurai Bench of the Madras High Court to initiate departmental action against the appellants to pay compensation for the breach of the mandate as per Section 46(4) while arresting the de facto petitioner Vijayalakshmi.

Vijayalakshmi was arrested around 8 pm on January 14, 2019, in a case by Thilagar Thidal police of Madurai city and there was no prior permission from the judicial magistrate before effecting the arrest.

After hearing the arguments of both sides, the court dismissed the appeal petition of Sub-Inspector Deepa, but allowed the appeals of Inspector Anitha and Head Constable Krishnaveni and set aside the punishment passed by the single judge.