Violation of fundamental rights and entitlement to compensation under Article 226 of the Constitution

By means of this petition, the petitioner has prayed for grant of compensation to her on the ground that she was un-authorizedly arrested on the night intervening 7th August, 2004 and 8th August, 2004 at 2.45 a.m. in the morning.

2. The undisputed facts are that the son of the petitioner was married to a lady, who was the daughter of a Judicial Officer. The father was a Member of the Tripura Judicial Service and posted at Agartala. The husband and wife earlier lived together at Delhi and thereafter, they lived at Kolkata, but a complaint being FIR No.49/2008 was registered with Agartala Women’s Police Station under Section 498A of the IPC. After the FIR was lodged, the admitted case is that on 08.04.2008 at 0245 hours the petitioner was arrested by a police party headed by respondent No.4, who at the relevant time was the in-charge of the Women’s Police Station.

3. Here it would be necessary to give some other facts. The FIR in question was filled not only against the present petitioner, but her other sons and married daughters. The complaint against the petitioner Smt. Suvra Deb and others Smt. Gopa Deb, Sudhendu Bhusan Deb, Smt. Soma Deb was quashed by a learned Single Judge of this Court on August 7, 2008 and this judgment of the learned Single Judge of the Gauhati High Court (which then exercised jurisdiction over Tripura) was upheld by the Apex Court. It would also be pertinent to mention that the son of the petitioner i.e. the husband had also filed a petition for quashing the proceedings in G.R. Case No.291 of 2008 arising out this very same FIR and these proceedings were quashed by this Court in Criminal Petition No.1 of 2009 decided on 01.08.2014. In both these judgments which have achieved finality, it was found that no offence had been committed within the State of Tripura.

4. The petitioner earlier also filed two petitions and she also initiated criminal proceedings against respondent No.4, Smt. Ila Deb. In the criminal proceedings, the Court did not proceed with the matter due to want of sanction. The petitioner, thereafter, approached the State to grant sanction under Section 197 Cr.P.C., but this sanction was refused on the ground that respondent No.4 Smt. Ila Deb had already been inflicted punishment of censure and no ground was made out for proceeding further against her in criminal proceedings.

5. The present petitioner Smt. Suvra Deb filed W.P.(Crl) 08 of 2015 before this Court which was dismissed by a Division Bench of this Court and the judgment in question was authored by me and in that case this Court held as follows:-

“3. From the facts stand established on record, it is not disputed that the petitioner was arrested in violation of the mandate of Section 46(4) of Cr.P.C. which reads as follows:-

“46. Arrest how made.— xxx xxx xxx

(4) 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.”

4. The mandate of sub-section (4) of Section 46 is clear that no woman should be arrested after sunset and before sunrise except in exceptional circumstances and where those circumstances exist the arresting officer should make a report in writing and obtain prior permission of the Judicial Magistrate. It is thus clear that a lady cannot be arrested after sunset and before sunrise unless the permission of the Magistrate has been obtained prior to such arrest.

5. We may point out that sub-section (4) was inserted in the Code of Criminal Procedure vide Amendment Act 25 of 2005 w.e.f. 23-06-2006. Before the said date this provision was not there on the statute. It is, however, clear that on the date of arrest, i.e. 08-04-2008 this provision was there on the statute. Therefore, we are clearly of the view that there was vio