Court Imposes Fine of Rs 50,000 on CBI for Arresting Woman After Sunset

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May 21, 2018

Case name: Kavita Manikikar v. Central Bureau of Investigation, Mumbai

In a recent case, the Two-Judge Bench of the Bombay High Court took strong note of conduct of CBI Officers in arresting woman after sunset i.e. in violation of Section 46 (4) of the Code of Criminal Procedure which mandates that except in exceptional circumstances a woman shall not be arrested after sunset and before sunrise.

What are the Rights of an Arrested Person?

In the case, the Petitioner who was arrested by the CBI at 8.00 PM approached the Court seeking a declaration that her arrest was contrary to Section 46 (4) of the Code of Criminal Procedure. The petitioner also prayed for a direction to initiate inquiry against the Officers who arrested her in violation of the statutory provision.

The observations made by the Bombay High Court are as under:

• That Section 46 (4) of the Code of Criminal Procedure came to be introduced on recommendation of the Law Commission in its 135^th Report on Women in Custody. The Report was prepared with the intent to   prevent harassment   and   exploitation   of   women   and   to   deal   with   the women accused with honor and dignity. That in the Report the first step that was recommended to be incorporated in the form of legislation was that no woman accused shall be arrested after sunset and before sunrise.
• Exceptions to Section 46 (4) of the Code of Criminal Procedure That provision under Section 46(4) is not an  absolute preposition   and   therefore   a   proviso   was   carved   out   where;   in exceptional circumstances, if there is need to arrest a person who happens to be a woman accused then she could be arrested by obtaining prior permission being sought of the Judicial Magistrate of First Class.
• That the said provision undoubtedly creates an embargo on arrest of a woman who is an accused in an offence to be arrested after sunset and before sunrise.  That in the backdrop of the exceptional circumstances, it is permissible for a woman police office by making written report to obtain prior permission of the JMFC and then effect arrest.
• That Section 46 (4) of CrPC itself carves out an exception incorporating the provision of obtaining written permission from the JMFC. With reference to the facts of the instant case, the High Court stated that the CBI failed to demonstrate any such exercise being undertaken.
• That Section 60­A of the Code makes it imperative that no arrest shall be made except in accordance with the provisions of the Code. Thus, any arrest which is made in violation of provisions contained in this Code shall be liable to be termed as not in accordance with the Code and thus illegal.
• That where a statute mandates that no woman shall be arrested after sunset and before sunrise and the arrest pf a person when she is woman has to be made by Police Officer, who is female, the provisions of the Statute cannot be simply ignored.
• That ‘Life and Liberty’ as enshrined in Article 21 of the Constitution available to a citizen cannot be denied to a convict, an accused in custody and surely not a suspect who is sought to be converted to an accused on investigation and then from an accused to a convict in trial.
• That it is an obligation upon State to ensure that there is no infringement of indefeasible right of citizen to life and liberty, which he cannot be deprived of without following the procedure established by law. The Code of Criminal Procedure which outlines the manner and to the extent to which a person can be denuded of his liberty, hence needs a strict compliance. Any   deviation   from   the   prescribed procedure   in   the   matter   of   arrest   can   therefore,   be   not countenanced and is liable to be declared as illegal.

In view of the aforesaid observations, the High Court held that the action of the respondent in arresting the petitioner is in violation and utter disregard to of respondent CBI in arresting the Petitioner was in violation and utter disregard to Section 46 (4) of CrPC and hence declared as illegal.

The High Court in view of the aforesaid held the concerned CBI officials liable to pay costs of Rs.50,000/­ to the petitioner.