No Woman Shall Be Arrested After Sunset & Before Sunrise

The provisions of sub-section (4) of Section 46 of the Code of Criminal Procedure, 1973 mandates that, if the Police want to arrest woman after sunset, they have to seek prior permission of the Magistrate, and arrest should be made by a Lady Police Officer.

The Legislature in its wisdom added sub-section (4) to Section 46 of the Code by Section 6 of the the Code Of Criminal Procedure (Amendment) Act, 2005 Act 25 of 2005 (w.e.f. 23-6-2006), to prohibit arrest of a woman after sunset and before sunrise except in unavoidable circumstances.

The provisions of sub-section (4) of Section 46 of the Code reads thus :-

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.

From bare perusal of the aforestated provisions of sub-section (4) of Section 46 of the Code, it is crystal clear that, the said provision mandates that no woman shall be arrested after sunset and before sunrise save in exceptional circumstances, without the prior permission of the Judicial Magistrate, First Class, in whose local jurisdiction the offence is committed or the arrest is to be made.

Upon careful perusal of the aforesaid provision, it is abundantly clear that, save in exceptional circumstances, no woman shall be arrested after sunset and before sunrise and where such exceptional circumstances existed, a Lady Police Officer shall, by making a written report, obtain prior permission of the Judicial Magistrate, First Class.

Therefore, the requirement of the provisions of sub-section (4) of Section 46 of the said Code is two fold. If the Police Officer wants to arrest the woman after sunset and before sunrise, there must exist exceptional circumstances for such arrest.

In cases wherein such exceptional circumstances do exist, a Lady Police Officer shall make a written report and obtain prior permission of the Judicial Magistrate, First Class in whose jurisdiction the offence is committed or the arrest is to be made.

Woman In Custody

The Police Officers acting in their official capacity/duties cannot frustrate the legislative intent, which grants protection to woman by virtue of insertion of sub-section (4) to Section 46 of the Code, which in clear words prohibits the Police Officers to effect arrest except there are unavoidable circumstance.

Even if unavoidable circumstance exist, only with a prior permission of the Judicial Magistrate, First Class, a woman can be arrested after sunset and before sunrise.

It is true that, in exceptional circumstances, in an appropriate case, the arrest of women after sunset and before sunrise may be necessary.

However, unless the procedure laid down under sub-section (4) of Section 46 of the Code is followed, no woman can be arrested at the whims and wills of the Police Officers.

See Also : Bharati S. Khandhar v. Maruti Govind Jadhav {Bombay High Court, 21 Dec 2012}

In State of Maharshtra vs. Christian Community Welfare Council of India and Anr, (2003) 8 SCC 546, the Supreme Court appreciated and agreed with the object behind prohibiting arrest of a lady after sunset and before sunrise but was of the opinion that a strict compliance with such restrictions, in a given circumstance, could cause practical difficulties to the investigating agency and might even give room for evading the process of law by unscrupulous accused.

The Supreme Court went on to say that it was necessary to protect the female sought to be arrested by the police from police misdeeds but it may not be always possible and practical to have the presence of a lady constable when the necessity for such arrest arises.

Of course, such observations of the Court were prior to the amendments made in Section 46 of the Code of Criminal Procedure. However, what cannot be lost sight of is the practical and genuine difficulties in enforcing and effecting the arrest of an accused of a case.