Why in news
The Madurai Bench of the Madras High Court ruled that the provision in the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, restricting arrests of women between sunset and sunrise, is directory, not mandatory.
A woman was arrested at 8pm, which a single Judge initially ruled was a breach of Section 46(4) of the CrPC.
However, a two-Judge Bench on appeal said it wasn’t mandatory to follow this rule.
What Are the Safeguards?
Two safeguards under Section 43(5) of BNSS (CrPC Section 46(4)):
No arrest of a woman between sunset and sunrise unless in exceptional circumstances.
Prior permission from a jurisdictional magistrate must be sought by a woman police officer for the arrest in such cases.
Additional provision in Section 46(1) ensures that a woman’s body cannot be touched by a male officer unless circumstances demand, or if the officer is a woman.
What Did the Madras HC Rule?
The Madras High Court ruled that Section 46(4) of the CrPC is directory because it doesn’t define consequences for non-compliance.
The Court emphasized that public interest must sometimes outweigh strict adherence to procedure, such as in cases of serious offenses committed by women at night, where a magistrate may not be available for prior approval.
History of Section 46(4) CrPC
Law Commission Reports:
1989 (135th report): Recommended no arrest of women after sunset, except in emergencies where prior approval should be obtained.
1996 (154th report): Similar recommendations.
Section 46(4) of CrPC was then inserted in 2005 with some changes based on these recommendations.
What Has the Supreme Court Said?
The Supreme Court noted that strict adherence to this rule could lead to practical difficulties, especially when a woman’s arrest is needed at night.
The Court has agreed that the provision may not always be followed strictly in exceptional cases.
Will the Ruling Dilute the Provision?
While the Madras High Court ruled the provision as directory, it emphasized that police must still respect the intent of the law.
Failure to adhere to the rule won’t necessarily make the arrest illegal, but the officer must justify non-compliance.
The Court also directed police to issue clear guidelines to define what exceptional circumstances would allow arrests outside the restricted hours.
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