Section 46(4) of Cr.P.C is directory, allowing police discretion in urgent situations, while maintaining the need for compliance with its provisions.

JUDGMENT :

G.R.SWAMINATHAN, J.

These Writ Appeals are directed against the order dated 18.10.2019 allowing W.P(MD)No.5508 of 2019 filed by the first respondent herein (S.Vijayalakshmi).

2.The averments set out in the affidavit filed in support of the writ petition can be summarized as follows:

The writ petitioner's husband/Saravanan is engaged in the business of selling tyres. His premises are located in D.No.31/1, Workshop Road, Madurai–1. His brother Madhu Pandian is also running a similar business on the opposite side. The relationship between the brothers came under strain. Madhu Pandian wanted to grab the petitioner's husband premises. He had obtained Saravanan's signatures by force in blank stamp papers on 22.07.2018 and fabricated a deed in his favour. Hence, Saravanan lodged complaint before C4, Thilagar Thidal Police Station. On 28.10.2018, when the petitioner went to her husband's shop, she was threatened by Madhu Pandian; he also videographed her. Hence the writ petitioner lodged complaint on 01.11.2018 leading to registration of Crime No.24 of 2018 on the file of AWPS(South), Madurai. Pursuant to the order in Cr.M.P.No.4660 of 2018 dated 14.11.2018 on the file of the learned Judicial Magistrate No. 2, Madurai obtained by the petitioner's husband, Crime No.950 of 2018 was registered against Madhu Pandian on 25.12.2018. The local Police wanted the petitioner and her husband to withdraw the aforesaid cases registered against Madhu Pandian. Since the petitioner as well as her husband refused, a false case in Crime No.20 of 2019 was registered against them at the instance of Madhu Pandian on 12.01.2019. On 14.01.2019, at about 08.00 p.m, the petitioner was arrested in front of her husband's shop premises. She was forcibly taken to the Police Station. She was abused and also beaten up. Injury was caused to her with knife. She was then taken to the hospital and remanded on the next day. The petitioner represented to the higher authorities about the high handedness of the local Police. Since no action was taken, she approached the High Court seeking departmental action against the erring Police personnel and also for payment of compensation.

3.The contesting respondents denied the version projected by the writ petitioner. However, the learned single Judge came to the conclusion that there has been a clear breach of the mandate contained in Section 46(4) of Cr.P.C which prohibited the arrest of women after sunset and before sunrise without the permission of the Judicial Magistrate. Terming the writ petitioner's arrest as illegal, the learned single Judge directed the disciplinary authority to initiate departmental action against the appellants herein. The department was directed to pay cost of Rs.50,000/- to the writ petitioner and recover the same from the salaries of the appellants.

4. Aggrieved by the said order, S.Anitha, Inspector of Police has filed W.A(MD)No.1216 of 2019. S.Deepa who was the Sub- Inspector of Police has filed W.A(MD)No.1155 of 2020. Krishna Veni, Woman Head Police Constable attached to C4, Thilagar Thidal Police has filed W.A(MD)No.1200 of 2019.

5.Heard both sides.

6.Three issues arise for consideration:

i) Whether the writ appeals are maintainable?

ii) Whether Section 46(4) of Cr.P.C (which corresponds to Section 43(5)of BNSS Act) is mandatory?

iii) Whether the appellants are entitled to relief?

7.The learned counsel appearing for the writ petitioner/first respondent herein submitted that since the learned single Judge had passed the impugned order by exercising his criminal jurisdiction, the present writ appeals filed under Clause 15 of Letters Patent would not lie. He relied on the decision reported in 2023 LiveLaw (Gau) 91 (Shri Deba Prasad Dutta Vs The State of Assam).

8.We overrule the said objection. Clause 15 of Letters Patent of the High Court of Judicature Madras is to the effect that an appeal shall not lie before the Division Bench from the judgment/order of the single Judge made in exercise of crimin