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2026 Supreme(Online)(Raj) 19133
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR
Ashok Kumar Jain, J
Mamta Jangid – Appellant
Versus
State of Rajasthan – Respondent
S.B. Criminal Miscellaneous (Petition) No. 7694/2024
Important Points
Subject
Criminal Law - Arrest and Bail
Act Referred
Headnote
(B) Code of Criminal Procedure, 1973 - Section 46(4) - Corresponding provision to Section 43(5) of BNSS - Mandatory nature of the provision. (Para 14)
(C) Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 8/20 - Offence for possession of contraband - Quashing of FIR on ground of illegal arrest - Not permissible; accused may seek bail on that ground. (Paras 5, 16)
(D) Criminal Procedure - Quashing of FIR - Principles laid down in State of Haryana Vs. Bhajan Lal (1992 Supp (1) SCC 335) - Illustrative categories. (Para 6) (E) Criminal Procedure - Quashing of FIR - Scope of inquiry - Ingredients of alleged offence must be disclosed on plain reading of FIR. (Para 7)
Facts of the case:
The petitioner, Smt. Mamta Jangid, was arrested at 1:15 AM on 30th July 2024 in connection with FIR No. 872/2024 registered under Section 8/20 of the NDPS Act at Police Station Kardhani, Jaipur West. The petitioner was a female, and the arrest was effected by a female police officer during night hours. The petitioner challenged the proceedings on the ground that the arrest was illegal as it violated the mandatory requirement of obtaining prior permission of a Magistrate under Section 43(5) of BNSS (formerly Section 46(4) of CrPC).
Issues: Whether the arrest of a female after sunset and before sunrise without prior permission of a Magistrate under Section 43(5) of BNSS renders the proceedings liable to be quashed?
Findings of Court:
The court held that the arrest was made in violation of Section 43(5) of BNSS as no prior permission of a Magistrate was obtained. However, the court declined to quash the proceedings solely on this ground, holding that the petitioner may seek bail on this ground. The petition for quashing of FIR was dismissed.
Ratio Decidendi: Violation of the mandatory provision under Section 43(5) of BNSS regarding arrest of a woman after sunset and before sunrise does not automatically warrant quashing of the criminal proceedings; the accused may take advantage of such violation for seeking bail.
Result: Petition dismissed.
For the Appellants/Petitioners: Nirmal Kumar Sharma
For the Respondents: Vijay Singh Yadav, PP, Onkar Singh Rajpurohit, PP, Karishma, SI Vishvakarma Jaipur West
| Table of Content |
|---|
| 1. petitioner challenges fir and arrest in ndps case. (Para 1 , 2 , 3 , 4 , 5) |
| 2. principles for quashing fir under bhajan lal and ankul singh. (Para 6 , 7 , 8) |
| 3. mandatory requirement of prior magistrate permission for arrest of woman at night. (Para 10 , 11 , 12 , 13 , 14 , 15) |
| 4. violation of arrest procedure does not warrant quashing; bail is appropriate remedy. (Para 16 , 17) |
| 5. police training and compliance with procedural law is required. (Para 18 , 19) |
Order
05/08/2026
1. The instant criminal miscellaneous petition is preferred by the petitioner accused for quashing FIR No. 872/2024 dated 30th July 2024 at Police Station Kardhani, District Jaipur (West) for the
offence under Section 8/20 of NDPS Act.
2. Learned counsel for the petitioner submits that in the night of 29th July 2024, the police has reached the house of present petitioner and in the intervening night has searched the house of the present petitioner. He also submit that the petitioner was arrested at 1.15 a.m. on 30th July 2024, which is evident from the arrest memo as well as remand paper submitted to the ACMM
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[2026:RJ-JP:30616] (2 of 8) [CRLMP-7694/2024] No.1, Jaipur Metropolitan No-II. He also submit that the police has no authority to arrest any female after sunset and before sunrise. He placed reliance upon judgment in case of Deepa versus S. Vijayalakshmi : W.A.(MD) No. 1155/2020, decided by a Division Bench of the Madras High Court on 07-02-2025, and judgment in case of Serina Bibi versus The State of West Bengal : CRM (NDPS) 244/2025, decided by a Coordinate Bench of High Court of Calcutta on 13th May 2025, and submitted that arrest in the midnight is in violation of BNSS, has to declared
as illegal and petitioner is entitled to quash the proceedings.
3. Learned Public Prosecutor has contended that the allegation and submitted that the search was made by a female police officer and the arrest is made by a female police officer and no case is
made out for quashing of any proceedings.
4. Heard learned counsel for the petitioner and learned Public Prosecutor. Perused the material placed on record. Also considered
submission of Ms. Karishma, SI, P.S. Vishwakarma.
5. The instant criminal miscellaneous petition is filed under Section 528 of BNSS for quashing FIR No. 872/2024, dated 30th July 2024, registered at Police Station Kardhani, District Jaipur (West) for the offence under Section 8/20 of NDPS Act, on ground
of illegal arrest of petitioner.
6. As regard to quashing of any FIR is concerned, the same is governed by the principle laid down in case of State of Haryana Vs. Bhajan Lal reported in 1992 Supplementary (1) SCC 335. Hon’ble Supreme Court has laid down illustrative categories
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[2026:RJ-JP:30616] (3 of 8) [CRLMP-7694/2024] where quashing of proceedings is justified and same are
reproduced as under:
“(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case
against the accused.
(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the
Code.
(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence
and make out a case against the accused.
(4) Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the
Cod
