The Constitution Bench of the Hon'ble Supreme Court in Dattatraya Moreshwar Vs The State of Bombay AIR 1952 SC 181) held that generally speaking the provisions of a statute creating public duties are directory and those conferring private rights are imperative. When the provisions of a statute relate to the performance of a public duty, and the case is such that, to hold null and void acts done in neglect of this duty would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty and at the same time would not promote the main object of the legislature, it has been the practice of Courts to hold such provisions to be directory.
15.Section 46(4) of Cr.P.C has not spelt out the consequence of non-compliance with the requirement set out therein. If the provision was intended to be mandatory, the legislature would definitely have provided for the consequences of non-compliance. It cannot be denied that when a Police officer effects arrest pursuant to the power conferred on him by Cr.P.C, he is carrying out a public duty. The matter is not between the official effecting arrest and the arrestee. There is a third party involved, namely, victim / defacto complainant. The victim cannot be allowed to suffer for the neglect of duty by the Police officer.
16.There are certain practical aspects to be borne in mind. Let us conceive of this situation: a woman commits murder after sunset and before sunrise; the information reaches the local Police Station; the accused is about to escape; in such a situation, should the officer concerned prepare a written report, send it to the local Magistrate, wait for His Honour's permission and upon receipt thereof, proceed to arrest the accused? We have no doubt in our minds that the horse would have bolted by then. Mechanical adherence to procedures can injure public interest at times. That is why, when the Nagpur Bench of the High Court of Bombay directed the State Government to issue instructions to all police officials that no female persons shall be detained or arrested without the presence of the lady constable and in no case after sunset and before sunrise, the Hon'ble Supreme Court in State of Maharashtra Vs Christian Community Welfare Council of India (2003) SCC 8 546 observed that while they agreed with the object behind the direction, a strict compliance with the said direction in a given circumstance would cause practical difficulties to the investigating agency and even might give room for evading the process of law by unscrupulous accused.
17.The statutory provision envisages that the woman police officer should make a written report and obtain the prior permission of the Magistrate before making arrest. One can very easily imagine situations when the investigating officer is left with very little time to respond. Suppose a heinous offence takes place at midnight. The jurisdictional Magistrate may not be available or accessible. Digital solutions may not also work. The Magistrate may be fast asleep. The written report sent by mail would be lying in his inbox. The accused will not be waiting for the Police officer to obtain permission from the Magistrate.
We are therefore of the view that it would not be in the interest of maintaining law and order if a Police officer is expected to write to the local Magistrate and effect arrest only after obtaining his/her prior permission. Such a stringent condition would disable Police officers from effectively discharging their public duties.
19.Though we have held that Section 46(4) of Cr.P.C / 43(5) of BNSS is directory and not mandatory, the provision cannot be rendered otiose by the Police. There is a laudable reason for incorporating such a provision. It is meant to serve as a note of caution to the officers effecting arrest of women. While failure to adhere to the statutory requirement may not lead to the arrest being declared illegal, the officer concerned may have to offer explanation for inability to comply with the procedure.
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
W.A(MD)Nos.1155 of 2020, 1200 & 1216 of 2019
Deepa Vs S.Vijayalakshmi .
CORAM: MR.JUSTICE G.R.SWAMINATHANAND
MR.JUSTICE M.JOTHIRAMAN
