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

Team SoOLEGAL 30 Mar 2023 5:17pm

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

New Delhi:The Madras High Court recently ordered the Tamil Nadu government to develop uniform guidelines to ensure that police officers follow the mandate under Section 46(4) of the Code of Criminal Procedure (CrPC) when arresting a woman after sunset, even in exceptional circumstances [S Salma v The State].

In a judgement passed on March 16, 2023 where Hon’ble  Justice Anita Sumanth directed the State to develop such guidelines within eight weeks of the order.

In exceptional circumstances, Section 46 (4) of the CrPC states that a woman may be arrested after sunset only by or in the presence of a female police officer, after filing a written report and obtaining the prior permission of a judicial magistrate of the first class within whose local jurisdiction the offence or arrest is committed.

According to the High Court, both requirements are mandatory, and the CrPC does not allow for any deviation from either mandate.

The High Court observed"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 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.

The court further observed that "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,".


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