Bombay HC: What consequences will follow if arrest of accused is declared illegal by court?

The precious guarantee of 'Life and Liberty' as enshrined in Art. 21 of Constitution of India available to a citizen of this Country can not be denied to a convict, an accused in custody and surely not to a suspect who is sought to be converted to an accused on investigation and then from an accused to a convict on trial. It is an obligation upon State to ensure that there is no infringement of indefeasible right of citizen to life and liberty, which he can not 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 such circumstances action of respondent No. 1 - CBI in arresting the petitioner at 22.00 hrs on 20.2.2018 is in violation and utter disregard to Section 46(4) of Code of Criminal Procedure and hence declared as illegal. Needless to say that all consequent actions more particularly that of CBI remand of the petitioner by order dated 21.2.2018 by learned Special Judge are of no legal consequences, null and void. {Para 17}

The officers of the respondent-CBI who are responsible for the flagrant violation of the said provisions are liable for the disciplinary proceedings. The competent authorities are at liberty to initiate such an action against the erring officers, so that officers from such a responsible agency shall deter from committing such an overt act of violation of the statutory provisions, which aim at ensuring an individual's life and liberty and depriving the same in accordance with the procedure prescribed by law.

18. In result, of the aforesaid discussion, the writ petition is allowed in terms of prayer clause (a) and it is held that the arrest of the petitioner is illegal and contrary to the provisions of Section 46(4) of the Code of Criminal Procedure. However, the CBI is not precluded to arrest the petitioner if investigation warrants so, by following the due procedure of law

The competent authorities are at liberty to initiate disciplinary proceedings against the erring officers, for flagrant violation of the statutory provisions.

The respondent No. 1 shall pay costs of Rs. 50,000/- to the petitioner within the period of eight weeks from date of this order. The respondent No. 1 is at liberty to recover the said cost from erring officer/s responsible for violations, as may be concluded after disciplinary proceedings.

 IN THE HIGH COURT OF BOMBAY

Writ Petition No. 1142/2018

Decided On: 10.05.2018

Kavita Manikikar Vs. Central Bureau of Investigation BS & FC and Ors.

Hon'ble Judges/Coram:

S.J. Kathawalla and Bharati H. Dangre, JJ.

Author: Bharati H. Dangre, J.

Citation: 2018 SCC ONLINE BOM 1095,MANU/MH/1098/2018.

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Madras HC: Provisions for Arrest Of Women At Night Are Directory, Not Mandatory:

Whenever a statute prescribes that a particular act is to be done in a particular manner and also lays down that failure to comply with the said requirement leads to a specific consequence, it would be difficult to hold that the requirement is not mandatory and the specified consequence should not follow."

The Constitution Bench of the Hon'ble Supreme Court in Dattatraya Moreshwar Vs The State of Bombay MANU/SC/0014/1952 : 1952:INSC:18 : 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 MANU/SC/0817/2003 : (2003) 8 SCC 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.

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.

IN THE HIGH COURT OF MADRAS (MADURAI BENCH)

W.A. (MD) Nos. 1155 of 2020, 1200, 1216 of 2019, C.M.P. (MD) Nos. 6322, 10380 and 10467 of 2019

Decided On: 07.02.2025

Deepa Vs. S. Vijayalakshmi and Ors.

Hon'ble Judges/Coram:

G.R. Swaminathan and M. Jothiraman, JJ.

Author: G.R. Swaminathan, J.

Citation:  MANU/TN/0552/2025

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Madras HC: Provisions Against Arrest Of Women At Night Are Directory, Not Mandatory

 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

 DATED : 07.02.2025.

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