A Division Bench of Justices A S Oka and S S Shinde directed the DGP and CP to issue the instructions within a period of two weeks asking all police officers to follow the mandate of Section 46 (4) of the Criminal Procedure Code which prohibits the arrest of a woman accused of any offence after sunset and before sunrise except in unavoidable circumstances.
According to the section, if the police wants to arrest a woman after sunset and before sunrise prior permission has to be taken from the Judicial Magistrate in whose jurisdiction the offence was committed, or the arrest has to be made.
The direction was passed by the Bench which was hearing a petition filed by Bharati Khandhar who was arrested by the Matunga police station pursuant to a non-bailable warrant issued against her by a court in Allahabad.
Khandhar was detained in the evening of June 13, 2007, by police sub inspector Maruti Jadhav. Kandhar was brought to Matunga police station where she was made to sit for three hours. Another sub inspector Anant Gurav then prepared paper work to show Khandhar as arrested.
She was produced before a magistrate the next day which released her on bail. After release, Kandhar wrote letters to the Commissioner of Police seeking action against Jadhav and Gurav for illegally detaining and arresting her.
When she didn't receive a reply from the Commissioner, Khandhar approached the high court.
“It is abundantly clear that no woman shall be arrested after sunset and before sunrise without the prior written permission of a magistrate. The respondent police officers have arrested the petitioner in gross violation of the provisions of Section 46 (4) of CrPC,” the high court observed.
According to the prosecution, the lady had around 200 non-bailable warrants against her in connection with cases of cheque bouncing.
The Bench held that the procedure followed by the concerned police officers was “totally illegal and contrary”.
“The intention of the Legislature to add subsection (4) to Section 46 of the Code was to give special protection to a woman from arrest after sunset and before sunrise, unless there exist exceptional circumstances for such arrest, and that too with prior permission of the Judicial Magistrate, First Class on a written report made by the Woman Police Officer,” the court said.
Directing the Commissioner to initiate inquiry against the two police officers, the court also ordered for a compensation of Rs 5,000 to be paid to Khandhar.
The inquiry has to be completed within three months and appropriate action has to be taken within a month thereafter.