MADRAS HIGH COURT
G.R. Swaminathan and M. Jothiraman, JJ.
Deepa and Ors. – Appellants
versus
S. Vijayalakshmi and Ors. – Respondents
W.A. (MD) Nos.1155 of 2020, 1200 and 1216 of 2019 & C.M.P. (MD) Nos.6322, 10380 and 10467 of 2019
Decided on 7.2.2025

IMPORTANT POINTS
(1) Legality of Arrests – While failure to adhere to the statutory requirement may not lead to the arrest being declared illegal, the officer concerned may have to offer explanation for inability to comply with the procedure.
(2) Award of Compensation – The award of compensation in a proceeding under Article 226 of Constitution of India is a remedy available in public law.
(3) Scope of Provision – Section 46(4) of Cr.P.C. / 43(5) of BNSS is directory and not mandatory, the provision cannot be rendered otiose by the Police.
(4) Writ Proceedings – Writ proceedings, which are summary in nature, adverse factual conclusions cannot be arrived at in the absence of definite and unimpeachable material.
(5) Judicial Magistrate – Even in exceptional situations, the prior permission of the jurisdictional Magistrate must be obtained.

Headnote:

Constitution of India – Article 226 – Criminal Matters – Whether Section 46(4) of Code of Criminal Procedure (which corresponds to Section 43(5) of Bharatiya Nagarik Suraksha Sanhita Act) is mandatory – Legality of Arrest – Section 46(4) of Code of Criminal Procedure / Section 43(5) of Bharatiya Nagarik Suraksha Sanhita, 2023 is directory and not mandatory, the provision cannot be rendered otiose by the Police – There is a laudable reason for incorporating such a provision. It is meant to serve as a note of caution to the officers effecting arrest of women. While failure to adhere to the statutory requirement may not lead to the arrest being declared illegal, the officer concerned may have to offer explanation for inability to comply with the procedure – Besides, the statutory provision envisages that the woman police officer should make a written report and obtain the prior permission of the Magistrate before making arrest. One can very easily imagine situations when the investigating officer is left with very little time to respond. Suppose a heinous offence takes place at midnight. The jurisdictional Magistrate may not be available or accessible. Digital solutions may not also work. The Magistrate may be fast asleep. The written report sent by mail would be lying in his inbox. The accused will not be waiting for the Police officer to obtain permission from the Magistrate – The statutory provision is in two parts. It forbids arrest of women between sunset and sunrise except in exceptional situations. Even in exceptional situations, the prior permission of the jurisdictional Magistrate must be obtained – In the case on hand, admittedly, arrest was made by Sub Inspector of Police. the Women Head Constable who carried out the arrest could not have disobeyed the order of her immediate superior. It would be too much to expect from a Head Constable to seek clarification from her superior if she had obtained prior permission from the jurisdictional Magistrate. Though illegal orders are not meant to be obeyed, the illegality must be evident on the face of it. In a Uniformed force, discipline is paramount – The writ petitioner was arrested on 14.01.2019 at about 20:00 hours. This is undoubtedly after sunset and before sunrise. The writ petitioner is a woman. No prior permission from the jurisdictional Magistrate was obtained before effecting arrest. No doubt, there has been a breach of the statutory mandate set out in Section 46(4) of Code of Criminal Procedure.

Held: The writ petitioner did not seek bail on the ground that her arrest was illegal. On the other hand, she wanted the concerned police personnel to be departmentally dealt with. She sought compensation. These are matters which do not fall in the realm of criminal jurisdiction. The award of compensation in a proceeding under Article 226 of Constitution of India is a remedy available in public law.

To a question as to whether Deepa took any written consent from any superior officials, it was replied that oral intimation was given by the Inspector of Police and based on her instructions, action was taken. In the considered view of the Court, this reply under RTI cannot furnish the basis for coming to any adverse conclusion against Anitha. Admittedly, Anitha did not give the said reply. She had not made any admission. It is not known on what basis the RTI reply was given. Whether Anitha orally instructed or permitted Deepa to arrest the writ petitioner is a question of fact. Evidence is required to establish the same.

In writ proceedings, which are summary in nature, adverse factual conclusions cannot be arrived at in the absence of definite and unimpeachable material.

On facts, the writ appeals filed by Anitha, Inspector of Police and Krishnaveni, Head Constable have to be allowed. The impugned order passed by the learned single Judge is set aside insofar as the aforesaid two appellants are concerned. W.A(MD)Nos.1200 of 2019 and 1216 of 2019 are allowed.

It is well settled that not only an applicant but also the respondent in a litigation must come to the Court with clean hands. [Paras 10 to 24].

Result: Appeal dismissed / disposed.