Madras HC wants guidelines on how to arrest a woman after sunset

The Madras High Court recently directed the Tamil Nadu government to come up with guidelines to ensure that the police comply with the mandate when it comes to arresting a woman after sunset.

A Single-Judge Bench of Anita Sumanth directed the state government to frame such guidelines within eight weeks of the order.

Section 46(4) of the Code of Criminal Procedure (CrPC) prohibits the arrest of a woman after sunset, except in special circumstances. Even in such a circumstance, a woman can be arrested after sunset only in the presence of a woman police officer and after filing a written report and obtaining prior permission of a judicial magistrate first class within whose local jurisdiction the offence is commented or the arrest is to be made.

Stating that the CrPC does not provide an elbowroom for any any deviation from either of the mandate, the Court said that both requirements are mandatory.

"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. Let suitable guidelines be issued in this regard. Guidelines, as directed above, be framed and placed before the Court within a period of eight weeks from date of receipt of a copy of this order," Justice Sumanth said in the order.

The court was hearing a petition filed by a woman journalist seeking compensation of Rs 25 lakh for her arrest in 2012. She had been arrested following a complaint by an AIADMK member who had said that the lady was distributing pamphlets that were anti-Jayalalithaa, who the chief minister at the time.

She contended that while a woman police officer was present at the time of her arrest at 10 pm, the police had not obtained the prior permission from the Magistrate.

The police on their part argued that the woman had been distributing provocative pamphlets to a politically charged crowd. She was arrested to avoid law and order issues the police said. Given the exceptional circumstance, the need for prior permission can be dispensed with, the police said. It was further said that the police had filed a written report after the arrest.

The High Court however said that while there was no perversity in the arrest itself, the impact on the lack of procedure needed to be examined.

"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," Justice Sumanth said.

While refusing to grant compensation to the petitioner-lady, the High Court said that the leak question regarding the impact of the procedural irregularity in an arrest of a woman was open t be determined in a more appropriate manner.

While directing the Tamil Nadu government to frame guidelines to ensure compliance, the High Court said, " 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."