Arresting women after sunset and before sunrise as per the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 is directory and not mandatory as ruled by the Madras High Court recently.

• Case Name: The ruling of The Madurai Bench of the Madras High Court came in Deepa versus S. Vijayalakshmi and Others case
• Judgement: 
• • A two-Judge Bench of the High Court, in an appeal, held that Section 46(4) of the Code of Criminal Procedure (CrPC) was directory and not mandatory
    • It overruled the single Judge judgement of the High Court which held that the arrest was in breach of Section 46(4) of the (CrPC).
  • Not Illegal: The failure to adhere to the statutory requirement may not lead to the arrest being declared illegal.
  • Not in Public Interest: The mechanical adherence to the procedure can injure public interest as it can lead to women criminals escaping the law of the land.
  • Safeguard: The HC clarified that the officer violating the directive will have to offer a written explanation.
  • Guidelines: The Court has directed the police to issue guidelines, clarifying as to what constitute exceptional circumstances.
• Reason: The provision cannot be considered mandatory because the section does not spell out the consequence of non-compliance of the provision.

Legal Provision related to Women Arrest

• Section 46(4) of Code of Criminal Procedure (CrPC) 
  • Introduction: The section was introduced in 2005, accepting the recommendation of the 135th report of the Law Commission of India on Women in Custody (1989) and 154th report of the Law Commission in 1996 with some changes.
  • Objective: It was incorporated as a beneficial provision to ensure the safety of women.
  • Provision: 
    • No woman shall be arrested after sunset and before sunrise
    • Exceptional Circumstances: In exceptional circumstances necessitating an arrest, the prior permission of the jurisdictional magistrate must be sought by a woman police officer by making a written report.
      • The provision does not explain what would constitute an exceptional situation
    • The arresting police officer should not touch the woman physically, unless it is a woman police officer or if the circumstances otherwise require it.
• Section 43(5) of Bharatiya Nagarik Suraksha Sanhita (BNSS)
  • It mirrors the Section 46(4) of CrPC for the arrest of a woman by the police.
• Supreme Court’s Stance:
• • The Supreme Court has in an observation of the Bombay High Court directive to the State of Maharashtra has stated that, strict compliance with the said directive in a given circumstance would cause practical difficulties.
    • The Bombay High Court Directive: It issued directions to all police officials that no female persons shall be detained without the presence of a lady constable, and in no case after sunset and before sunrise.

Remedy For Wrongful Arrest

• Section 358 of the Code of Criminal Procedure, 1973: It lays down a provision for compensation to persons arrested without sufficient grounds for arrest.
  • The Magistrate has the authority to award compensation to the arrested person of Rs100 by the person on whose complaint police made the arrest which shall be recovered as a fine and failure to collect shall be sentenced to imprisonment for 30 days.
• Section 342 of the Indian Penal Code: If a person is illegally arrested or where the arrest is proved to be mala fide or actuated by extraneous considerations, the police officer concerned can be prosecuted for wrongful confinement.
• Habeas Corpus: This is a legal remedy that allows a person to challenge unlawful detention or imprisonment before a court. 
  • It can be issued by the Supreme Court under Article 32 and by the High Court under Article 226 of the Constitution of India.
• Civil Claims:
• • Sue the Police: A civil lawsuit against the police or relevant authority for damages resulting from the unlawful arrest can be filed.