Section 46(4) CrPC: Madras High Court Directs State To Frame Guidelines For Obtaining 'Prior Permission' Of Magistrate To Arrest Women At Night

Section 46 of CrPC which deals with procedure to be followed while making an arrest, specifically bars arrest of women before sunrise and after sunset except under exceptional circumstances. Even under exceptional circumstances, the Section requires the arrest to be carried out by/in the presence of a woman police officer. The section also says that the arrest should be made only after making a written report to the Judicial Magistrate (within whose jurisdiction arrest is to be made) and obtaining prior permission.

Justice Anita Sumanth noted that the provision is mandatory; legislature took a restrictive approach in the construction of Section 46(4), perhaps in the face of possibilities for abuse in case of police discretion. However, since even the Supreme Court has noted the procedural difficulties with respect to obtaining prior sanction, the court thought it fit to direct framing of appropriate guidelines for arrest of women in such exceptional circumstances and obtaining of prior permission from Magistrate.

As a foot note, 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… 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 court added that with today’s technology, it was possible to obtain prior sanctions electronically provided the proper electronic trail is obtained and preserved.

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 was hearing the plea filed by Salma, a journalist by profession, seeking compensation for her alleged illegal arrest and to take disciplinary action against the officers involved.

Salma was arrested by the police in September 2012 based on a complaint by MGJ Ramkumar, a member of the Anna Dravida Munntre Kazhagam (AIADMK) party. Ramkumar alleged that Salma was distributing pamphlets containing derogatory observations about the then Chief Minister of Tamil Nadu in front of the party head office. She was thus charged under the TNCP Act and the IPC for riotous behaviour in a public place and for making statements conducing to public mischief.

Salma was arrested on September 25th, 2012 at 10:00 pm and produced before the Judicial Magistrate at 1:00 am. Thereafter, she was remanded to judicial custody in Central prison before being released on bail two days after. The court later acquitted Salma of all charges.

Challenging the manner in which her arrest was made and seeking compensation thereof, Salma contended that there was no woman police officer present at the time of her arrest. She also argued that no prior permission was obtained from the concerned Judicial Magistrate before her arrest.

With respect to the first argument, the court found the same to be factually incorrect. Based on the documents provided, the court concluded that a Grade I woman police constable was present at the time of making the arrest and thereafter.

With respect to the second argument, the authorities argued that the written report for obtaining prior permission can be a post-arrest event, as practically it would delay the arrest thus allowing the accused to disturb the law and order. In the present case, there was an imminent threat of public danger and safety as the pamphlets were being distributed in a crowded area causing heated discussion, it was argued.

The court said the defence of urgency taken by the respondents "does not align with the statutory mandate".

"The recognition accorded to ‘exceptional circumstances’ only carves out an exception to the absolute bar subject to satisfaction of conditions. 37. 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," it observed.

However, the Court also agreed that there was nothing untoward in the decision of the authorities and that there were exceptional circumstances warranting arrest. Thus, the court denied Salma’s prayer for compensation and ordered accordingly.

Case Title: S Salma v. State of Tamil Nadu and others

Citation: 2023 LiveLaw (Mad) 105