Arresting woman after sunset: Madras High Court orders State to frame guidelines to ensure compliance with Section 46(4) CrPC

The Madras High Court recently directed the Tamil Nadu government to come up with uniform guidelines to ensure that the police comply with the mandate under Section 46(4) of the Code of Criminal Procedure (CrPC) while arresting a woman after sunset even under special circumstances [S Salma v The State]. .In a judgement passed on March 16, Justice Anita Sumanth directed the State to frame such guidelines within eight weeks of the order.Section 46 (4) of the CrPC prohibits arrest of a woman after sunset except in special circumstances. Even in such special circumstances, a woman can be arrested after sunset only by or in the presence of a woman police officer and after filing a written report and obtaining prior permission of a the judicial magistrate first class within whose local jurisdiction the offence is committed or the arrest is to be made.The High Court said that both the requirements are mandatory and that CrPC does not provide any elbowroom for any deviation from either of the mandates. "I believe that it would be, in the fitness of things, for the authorities to apply their mind to this question and frame appropriate guidelines to ensure compliance with the mandates under Section 46(4) even in exceptional, urgent and emergent situations....Let suitable guidelines be issued in this regard. Guidelines, as directed above, be framed and placed before the Court within a period of eight (8) weeks from date of receipt of a copy of this order," the single-judge directed.The Court was hearing a petition filed by a woman journalist seeking a compensation of ₹25 lakh for her arrest in 2012. The petitioner-woman had been arrested follow a complaint by an AIADMK member claiming the woman had been distributing pamphlets against the then Chief Minister J Jayalalithaa. However, she was arrested at 10 pm and while a woman police officer was present, the police had not obtained the Magistrate's prior permission. The police, however, argued that the woman had been distributing the provocative pamphlets to a politically charged crowd and she had been arrested to avoid law and order issues. Therefore, given the exceptional circumstance, the need for prior permission could be dispensed with. The police had filed the written report after the arrest, it was submitted..Justice Sumanth, however, said that while there was no perversity in the arrest itself, the impact of the lapse in procedure needed to be examined."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 High Court said. The Court refused to grant any compensation to the petitioner-woman. It, however, said the legal question regarding the impact of the procedural irregularity on an arrest of a woman was open to be determined in a more appropriate matter.It, therefore, directed the State to frame guidelines to ensure compliance with the mandate under Section 46(4) of CrPC. "After all, in today’s times of advanced technology, permission/sanction can well be obtained electronically/digitally in an instantaneous manner, ensuring that proper electronic trail and record of such sanction, is obtained and preserved," the Court said.Advocate Shri Varshini V and Abrar Md Abdullah appeared for the petitioner-journalist. Additional Advocate General P Kumaresan and Government Advocate Alagu Gowtham appeared for the respondent State and the Police. .[Read Judgment]