The Madras High Court has ruled that while arresting a woman after sunset and before sunrise without prior permission from a Magistrate is a violation of Section 46(4) of the Criminal Procedure Code (Cr.P.C.), such arrests are not automatically illegal. The ruling was delivered by a division bench comprising Justice G.R. Swaminathan and Justice M. Jothiraman while deciding on a batch of writ appeals in Deepa v. S. Vijayalakshmi (W.A.(MD) Nos. 1155 of 2020, 1200 & 1216 of 2019).
Background of the Case
The case arose from a petition filed by S. Vijayalakshmi, who alleged that she was illegally arrested on January 14, 2019, at around 8:00 PM by police officers attached to the Thilagar Thidal Police Station, Madurai, in violation of Cr.P.C. provisions. She contended that she was forcibly taken to the police station, abused, beaten, and even sustained a knife injury while in custody. Her complaint alleged that the arrest was made at the behest of one Madhu Pandian, with whom her husband had a property dispute. Vijayalakshmi sought disciplinary action against the police personnel involved and compensation for the violation of her rights.
The single judge of the High Court had ruled in her favor, directing disciplinary action against Inspector S. Anitha, Sub-Inspector S. Deepa, and Woman Head Constable Krishnaveni. The court also ordered the government to pay a compensation of ₹50,000 to the petitioner, to be recovered from the salaries of the officers.
Legal Issues Considered
The High Court framed three key legal issues:
- Maintainability of the Writ Appeals – The respondents contended that since the single judge exercised criminal jurisdiction, an intra-court appeal under Clause 15 of the Letters Patent Act would not be maintainable.
- Interpretation of Section 46(4) of Cr.P.C. – Whether arresting a woman at night without prior judicial permission is mandatory or directory.
- Entitlement to Relief for the Appellants – Whether disciplinary action and cost recovery ordered against the police personnel were justified.
Court’s Observations and Decision
1. Writ Appeals Maintainable
The court ruled that the appeals were maintainable since the proceedings before the single judge did not involve the exercise of criminal jurisdiction. The court reasoned that the petitioner was not seeking bail or relief from a criminal case but rather departmental action against police officers and compensation, which are civil law remedies.
2. Section 46(4) of Cr.P.C. is Directory, Not Mandatory
The court examined previous judgments and held that while Section 46(4) of Cr.P.C. prohibits arresting a woman after sunset without prior judicial permission, it does not automatically render such arrests illegal.
Quoting legal precedents, the court noted:
“A provision of law may be mandatory in form but directory in substance. The intent of the legislature and practical difficulties must be considered.”
The court also highlighted that emergency situations may necessitate an immediate arrest, such as in cases of heinous crimes. The court observed that mechanical adherence to the provision could lead to practical difficulties in law enforcement and may even be misused by accused persons to evade arrest.
However, the court emphasized that police officers must explain their failure to obtain prior judicial permission in exceptional cases.
3. Relief for Appellants
- The court allowed the appeals of Inspector Anitha and Woman Head Constable Krishnaveni, stating that there was no direct evidence of their involvement in the wrongful arrest.
- However, it dismissed the appeal of Sub-Inspector Deepa, noting inconsistencies in her statements and ruling that she had not come to the court with clean hands. The court observed that her justification for the arrest contradicted her own remand report.
