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Midnight Arrest Without Magistrate Permission Illegal: Refuses to Quash NDPS Case
The recently held that the midnight arrest of a woman without from a Magistrate is illegal and in violation of . However, the Court declined to quash the criminal proceedings against her under the solely on the ground of an .
Justice Ashok Kumar Jain, presiding over a single bench, was hearing a petition filed by Smt. Mamta Jangid seeking to quash FIR No. 872/2024 registered at for offences under .
A Midnight Raid and Arrest Under Scrutiny
The case stems from a search conducted in the intervening night of 29th and at the residence of the petitioner. According to the prosecution, a female police officer, Sub-Inspector Ms. Karishma, led the search and seized contraband from the premises, which was also occupied by co-accused Inderjit Mandal. The petitioner was arrested at 1:15 a.m. on .
The petitioner, represented by , argued that the arrest was illegal as it contravened the of BNSS that prohibit the arrest of women after sunset and before sunrise without and prior magistrate permission. Reliance was placed on the Division Bench judgment of the in and the decision in .
The State, represented by Public Prosecutors, countered that the search and arrest were carried out by a female police officer in compliance with the law, and that no case for quashing was made out.
The Mandate of Section 43(5) BNSS: No Women After Sunset
The Court examined Section 43(5) of BNSS, which explicitly states:
"Save in
, no woman shall be arrested after sunset and before sunrise, and where such
exist, the woman police officer shall, by making a written report, obtain the
of the Judicial Magistrate of the first class within whose local jurisdiction the offence is committed or the arrest is to be made."
The bench noted that no was obtained from the Magistrate before effecting the midnight arrest. It held this to be a clear violation of the .
"The provision prohibits arrest of any woman after sunset and before sunrise, but if there exists any exceptional circumstance, (i) then a woman police officer may make a written report to the Magistrate First Class having jurisdiction; (ii) obtain
for arrest, and then make arrest of said female. In the instant case, the search is conducted between sunset and sunrise (night hours) and the present petitioner, who is a female, was arrested during midnight by a female police officer, but no
of Magistrate has been procured before making arrest of the petitioner. Thus, the arrest is not in accordance with Section 43(5) of BNSS, and police has violated the provision of law."
Court Distinguishes from Invalid Case
While acknowledging the illegality in the arrest, the Court refused to quash the FIR. Applying the principles laid down by the in and , it found that none of the illustrative categories for quashing were attracted. The FIR disclosed a under the NDPS Act based on recovery of contraband.
The Court held:
"the proceedings against the petitioner cannot be quashed only on the ground that the police has violated the mandatory provision under the law while making arrest of the petitioner. The charge against the petitioner is for involvement in offence relating to NDPS Act, therefore, on these grounds alone, we are not inclined to quash proceedings against the petitioner, though the petitioner may take advantage for seeking bail on this ground."
"Police Needs Extensive Training": A Directive to the DGP
Taking a serious view of the procedural lapse, the Court directed that a copy of the order be sent to the , for ensuring proper training of police personnel on arrest procedures. The order noted:
"the Sub-Inspector, who conducted search after receipt of information, has not bothered to read Section 43 of BNSS before effecting arrest of the present petitioner, who is a female. This clearly indicates that the police requires either extensive training or a handbook type of material so that the police personnel can comply with the provisions of law."
Verdict and Implications
The petition was dismissed. However, the Court clarified that the petitioner could take advantage of the to seek bail. The ruling underscores the mandatory nature of safeguards for women under BNSS while also reinforcing that alone cannot extinguish .
