While striking the right chord in the direction of protecting the paramount interest, dignity and safety of women, the Madras High Court in a most learned, laudable, landmark, logical and latest judgment titled S Salma v. State of Tamil Nadu and others in WP.No.29972 of 2015 and cited in 2022 LiveLaw (Mad) 105 that was reserved on March 2, 2023 and then finally pronounced on March 16, 2023 has directed the State government of Tamil Nadu to ensure compliance with Section 46 of the Criminal Procedure Code (CrPC) and frame guidelines for obtaining ‘prior permission’ of Judicial Magistrate to arrest women at night in exceptional circumstances.

It must be mentioned here that the Court was hearing the plea that was filed by Salma who is a journalist by profession and who is seeking compensation for her alleged illegal arrest and to take disciplinary action against the officers involved. The Single Judge Bench of Hon’ble Dr 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. The guidelines needs to be framed accordingly as directed.

At the very outset, this remarkable, refreshing and rational judgment authored by the Single Judge Bench of Hon’ble Dr Justice Anita Sumanth sets the ball in motion by first and foremost putting forth in para 1 that:
The petitioner is a journalist. She is aggrieved by her arrest by the 4th respondent, the Inspector of Police, B-15 Rathinapuri Police Station, on 25.09.2012 for offences under Section 75(1)(c) of the Tamil Nadu City Police Act, 1988, and Sections 506(1) and 505(1)(b) of the Indian Penal Code in Crime No.379 of 2012 based on the complaint of M.G.J. Ramkumar (in short ‘complainant’).

To put things in perspective, the Bench envisages in para 2 that:
The complainant is a member of the All India Anna Dravida Munnetra Kazhagam (AIADMK). He had claimed to have received a pamphlet from the petitioner that contained defamatory observations about the then Chief Minister of Tamil Nadu. He alleged that the petitioner was distributing the same among the public, right outside the AIADMK Head office at Sivanandha Colony, Coimbatore.

Adding more, the Bench then states in para 3 that:
The complainant further alleged that when he questioned her about the propriety of her actions, the petitioner threatened him with dire consequences and continued indulging in the distribution. She was arrested on 25.09.2012 at around 10.00 p.m. Though she claims that the 4th respondent had physically touched her shoulder when he arrested her, that allegation is not pursued in the hearing before me.

As we see, the Bench then mentions in para 4 that:
The petitioner was, admittedly, produced before Judicial Magistrate No.2, Coimbatore at 1.00 a.m. and remanded to judicial custody in the Central prison. She was incarcerated for two days and released on bail thereafter.

Further, the Bench discloses in para 5 that:
The respondents point out that in the remand order dated 26.09.2012, there is a specific noting by Judicial Magistrate No.II, Coimbatore that there were no complaints that were raised as against the police and they would thus urge that all the grievances expressed in the Writ Petition are only an afterthought. A charge sheet was filed on 07.10.2014 in C.C.No.809 of 2014 and judgment was passed in the Criminal case on 02.03.2019 acquitting the petitioner of all the charges alleged.

Simply put, the Bench then observes in para 6 that:
In this Writ Petition, the petitioner has sought a mandamus directing the respondents to compensate her by paying a sum of Rs.25.00 lakhs. She further seeks a direction to R1 to R3, being the State, the Director General of Police/DGP/R2 and the Commissioner of Police/CP/R3 to initiate disciplinary action against the concerned officers in a timely manner.

Be it noted, the Bench notes in para 34 that:
I am concerned with whether the arrest that was made was lawful and in compliance with the mandate of Section 46(4) of Cr.P.C. Section 46 deals with 'Arrest how made'. Sub-section (4) reads thus:

46. Arrest how made –

(1) ………

(2)………..

(3) ……….

(4) Save in exceptional circumstances, no woman shall be arrested after sunset and before sunrise, and where such exceptional circumstances exist, the woman police officer shall, by making a written report, obtain the prior permission of the Judicial Magistrate of the first class within whose local jurisdiction the offence is committed or the arrest is to be made.

Do also note, the Bench then notes in para 35 that:
Thus,

(i) there is an absolute bar generally as against the arrest of a woman prior to sunrise and after sunset on any given day. Legislature has noted the possibility of exceptional circumstances and has carved out an exception in such situations.

(ii) In the presence of exceptional circumstances, a woman may be arrested prior to sunrise and after sunset, a) in the presence of a woman police officer and b) after submission of a written report to the jurisdictional Judicial Magistrate of first class, who has to permit the same.

It is worth noting that the Bench then notes in para 36 that:
In the present case, there has been a police officer Ms.Shanthi Priya in attendance at all times during the arrest. Thus condition (a) stands complied. No written report was made to the jurisdictional Judicial Magistrate and no prior permission obtained and the defence of the respondents is that the existence of exceptional circumstances would preclude the necessity for compliance with this condition. This defence 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.

Quite significantly, the Bench then enunciates in para 37 that:
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.

On a practical note, the Bench states in para 38 that:
The respondents would maintain that such a strict interpretation of Section 46(4) would make the practical enforcing of law and order very difficult as the authorities would be hard pressed to do the needful quickly enough to prevent any untoward incident.

While citing the relevant case law, the Bench observes in para 39 that:
This situation has been taken note of by the Hon’ble Supreme Court in the case of Christian Community Welfare Council of India (supra) that had travelled to the Hon’ble Supreme Court from a decision of the Nagpur Bench of the Bombay High Court on the criminal side. That judgment was rendered on 15.10.2003 prior to the insertion of sub-section (4) to Section 46 of Cr.P.C. by Act 25 of 2005, with effect from 23.06.2006. The facts, briefly put, are that one Junious Adam Illamatti was found dead in police custody on 23.06.1993. It was alleged that when his wife Jarina Adam went to the police station, she was also taken into custody and molested and a criminal case was registered against 10 police officers in that regard. The officers were charge sheeted and after undergoing trial, they were acquitted of the charge of murder, but convicted under other provisions and punished accordingly.

It would be instructive to note that the Bench points out in para 40 that:
A Criminal Writ Petition was filed by the Christian Community Welfare Council of India, where Jarina Adam was also impleaded. The prayer was for an inquiry into the custodial death and compensation to his wife. Various directions were issued in the matter to prevent and check custodial violence. Such directions included the procedure for arresting of persons, particularly females. One of the directions was that the State Government should issue instructions immediately in unequivocal and unambiguous terms to all concerned that no female person shall be detained or arrested without the presence of a lady constable and in no case after sunset and before sunrise.

Truth be told, the Bench then specifies in para 41 stating that:
The challenge before the Hon'ble Supreme Court included the aforesaid direction as well and at paragraph 9, while the Bench agreed with the spirit and object behind this direction, they felt that strict implementation of the directions may not be practical and hence watered it down to align with practical consideration and emergent situations.

Quite practically, the Bench then very rightly observes in para 43 that, Decision making in such events becomes very subjective and sometimes, questionable, and it is, perhaps, to avoid this that the provisions of Section 46(4) are absolute, the balance tipping in favour of the woman. While I commend the wisdom of such a decision, the question that arises is as regards the impact of the procedural infraction on the prayer for compensation before me.

Most pragmatically, the Bench holds in para 44 that:
I have in paragraph Nos. 28 and 29 discussed the events of 25.09.2012 coming to the conclusion that the decision of the authorities to arrest was not shown to be perverse. The relief sought for by the petitioner is a discretionary one, in exercising which, this Court will be guided by not just the explicit language of Section 46(4), but the spirit, object, purpose as well as practical considerations of implementing the same.

Frankly speaking, the Bench then observes in para 45 that:
I am of the considered view that the prayer for compensation, in light of the respondents having established the existence of exceptional circumstances for arrest, has to be denied. I leave the legal question on the impact of the procedural irregularity on an arrest of a woman open, to be determined in a more appropriate matter.

Most significantly, the Bench then propounds in para 46 that:
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.

In addition, the Bench then hastens to add in para 47 expounding 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.

Finally, the Bench then concludes by directing in para 48 that:
Let suitable guidelines be issued in this regard. This writ petition is disposed declining the request for mandamus. 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. No costs.

In sum, we thus see that the Madras High Court has very rightly, rationally and robustly directed the State to frame guidelines for obtaining ‘prior permission’ of Magistrate to arrest women at night. So it thus merits no reiteration that the State must do the needful in this direction as directed by the Court. No denying it!

Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut - 250001, Uttar Pradesh.