Parul
Law to detain a woman after sunset and before sunrise
Parul Madaan 20 Jan 2020

Law to detain a woman after sunset and before sunrise

Section 46(4) of the Code of Criminal Procedure was introduced in 2005 (hereinafter referred to as the Code) and the proviso for (1) of the section was inserted in 2009, this clause specifies the procedure for the arrest of a woman, section 46 of the act reads as follows:-

” Arrest how made –

1.      In making an arrest the police officer or other person making the same shall actually touch or confine the body of the person to be arrested unless there be a submission to the custody by word or action.

Provided that where a woman is to be arrested, unless the circumstances indicate to the contrary, her submission to custody on an oral intimation of arrest shall be presumed and, unless the circumstances otherwise require or unless the police officer is a female, the police officer shall not touch the person of the woman for making her arrest.

2. If such person forcibly resists the endeavor to arrest him, or attempts to evade the arrest, such police officer or other person may use all means necessary to effect the arrest.

3. Nothing in this section gives a right to cause the death of a person who is not accused of an offense punishable with death or with imprisonment for life.

4. Save in exceptional circumstances, no women 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 offense is committed or the arrest is to be made.

 

The prerequisite for the provisions of sub-section (4) of Section 46 of the said Code is therefore two-folded. If the police officer wants to apprehend the woman after sunset and before daylight, exceptional circumstances must occur for such an arrest. Where such exceptional circumstances occur, a Lady Police Officer shall make a written report and receive prior authorization from the Judicial Magistrate, First Class in whose jurisdiction the the arrest shall be made.

Section 60A of the Code also states that –“ No arrest shall be made except in accordance with the provisions of this code or any other law for the time being in force providing for arrest. “

Some violation of the rules

There have been cases of a violation of section 46(4) of the code. One of the recent cases  Kavita Manikikar v. Central Bureau of Investigation, Mumbai in which the lady filed a written petition before the Bombay High Court for breach by the CBI officers of section 46(4) and 60A of the Code, the High Court permitted the written petition and held that the petitioner's arrest was unlawful and contrary to the provisions of section 46(4) of the Code, and imposed a fine of Rs. 50,000/-on the respondent.

The legislature's purpose is to protect women, but sometimes police officers violate the law and act inappropriately with women as happened in the case of Bharati S. Khandar v. Maruti Govind Jadhav as the complainant (the lady) was aware of the provisions of section 46(1), i.e. that only a female police officer could arrest a woman, so she declined to go with the male police officer who came to arrest her at night, but she was still unaware of section 46(4) of the code and was arrested after sunset and also mistreated by the police.

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