Bombay HC fines CBI Rs 50,000 for illegal arrest of a woman [Read Order]

The Bombay High Court recently pulled up the Central Bureau of Investigation (CBI) for having arrested a woman after sunset, in direct contravention of Section 46 (4) of the Code of Criminal Procedure (CrPC), even going so far as to impose a fine of Rs 50, 000 for their error..The petitioner, Kavita Manikakar had appeared before the CBI’s office on February 20 at around 3 in the afternoon, in connection with the investigation in the Punjab National Bank fraud case. However, at 8 in the evening, the CBI proceeded to arrest Manikakar, after preparing an Arrest-cum-Personal Search Memo..The CBI, through Advocate Ameeta Kuttikrushnan, contended that the arrest was made because Manikakar was not cooperating with the investigation and as there was a strong suspicion that the would abscond if not arrested..On the other hand, Advocate Yashwardhan Tiwari, appearing for Manikakar, referred to Sections 46 (4) and 60A of the CrPC, besides Section 12 of the CBI Manual to argue that the arrest was illegal..Whereas Section 46 (4) provided that no woman may be arrested after sunset and before sunrise, Section 60 A reiterated that all arrests have to be made in consonance with the CrPC. Section 12 requires that the CBI follow the procedure prescribed by law in their activities..In consequence, Tiwari also contended that the subsequent 14-day remand of the petitioner to CBI custody allowed by the Special Judge, Greater Bombay was also void..The Bench of Justices SJ Kathawalla and Bharti H Dangre found merit in these arguments, observing that Section 46 (4) of the CrPC, undoubtedly creates an embargo on the arrest of a woman who is an accused in an offence to be arrested after sunset and before sunrise..Furthermore, the Court found that the law requires that prior permission of the Judicial Magistrate, First Class be obtained to arrest a woman beyond the permissible hours, if at all there are exceptional circumstances. However, there was nothing to indicate that the CBI had followed this procedure..“No doubt true, Section 46 (4) of the Code itself carves out an exception incorporating the provision of obtaining written permission from the Judicial Magistrate First Class. .The said procedure can be set into motion for dealing with such an exigency. However, the CBI has failed to demonstrate any such exercise being undertaken ….… Except expressing that there was a strong suspicion of the petitioner being absconding, no exigency has been pointed out in the affidavit justifying non-compliance of mandatory requirement in sub-section (4). In any case, if such an exigency were in existence, recourse could have been sought to the exception carved out in Section 46 (4) itself.”.Moreover, such arrest is only permissible if it is made by a woman officer. On the contrary, in this case, the Arrest memo disclosed that the arrest was made by a male officer. The CBI’s defence that there were women officers present in the office was found to be irrelevant..“Further, the arrest is not made by the female Police Inspector and it can be seen that the police inspector making arrest is D. Damodaran, Inspector of Police, CBI, BS&FC, Mumbai. The presence of the other lady police official in the office of the CBI at the time of effecting arrest or presence of her husband is of no consequence.”.As explained in its order, the mere presence of a woman officer, while the arrest is made by a male officer, would not serve the purpose behind introducing this safeguard..“Section 46(4) contemplates that while making arrest, the police officer or the person making the same shall actually touch or confine the body of the person to be arrested and in case of a female, it shall be necessarily done by a female police officer since there is apprehension that the male police officer might touch the person of a woman while making arrest.”.The contention of the CBI that since the woman was already in custody at 3 in the afternoon, the formal arrest at 8 pm would not stand vitiated was also rejected by the Court..Holding that there is a clear distinction between “custody” and “arrest” for the purpose of Section 46, CrPC, the Court held,.“…The Legislature was conscious while it used the term as ‘Arrest’ as distinct from ‘Custody’ and the safeguard which it intended to be provide[d] to a woman is in relation to ‘Arrest’. .The petitioner may have been in custody before the sunset, however, she is arrested at 20:00 hrs. which is after sunset and therefore the action of the CBI clearly falls within the prohibition imposed under Sub Section (4) of Section 46 of the Code.”.It was also noted that in identical circumstances, a division bench has previously ruled in favour of the detainee in the case of Mrs. Bharti S Kjandhar v Maruti Goving Jadhav PSI..On these grounds, the Court allowed Manikakar’s writ petition, declaring that the February arrest was illegal and contrary to the provisions of Section 46 (4) of the Code of Criminal Procedure. The remand allowed by the Special Judge thereafter was also found to be null and void..However, it also held that the CBI may arrest Manikakar, if warranted by following the due legal procedure..Before parting with the case, the Court also imposed a fine of Rs 50, 000 on the CBI to be paid to Manikakar within eight weeks. The CBI was granted liberty to recover the said amount from the errant officers who carried out the arrest, after disciplinary proceedings moved against them for the flagrant violation of the statutory provisions..Read order below: