Section 46 of CrPC which deals with procedures to be followed while making an arrest, specifically bars the arrest of women before sunrise and after sunset except under exceptional circumstances. Even under exceptional circumstances, the Section requires the arrest to be carried out by/in the presence of a woman police officer. The section also says that the arrest should be made only after making a written report to the Judicial Magistrate (within whose jurisdiction the arrest is to be made) and obtaining prior permission.

The bench headed by Justice Anita Sumanth noted that the provision is mandatory, even the Supreme Court has noted the procedural difficulties with respect to obtaining prior sanction, the court thought it fit to direct framing of appropriate guidelines for the arrest of women in such exceptional circumstances and obtaining of prior permission from Magistrate.

As a foot note, I believe that it would be, in the fitness of things, for the authorities to apply their mind to this question and frame appropriate guidelines to ensure compliance with the mandates under Section 46(4) even in exceptional, urgent and emergent situations… Guidelines, as directed above, be framed and placed before the Court within a period of eight (8) weeks from date of receipt of a copy of this order.

After all, in today’s times of advanced technology, permission/sanction can well be obtained electronically/digitally in an instantaneous manner, ensuring that proper electronic trail and record of such sanction, is obtained and preserved.

Case Brief

The court was hearing the plea filed by Salma, a journalist by profession, seeking compensation for her alleged illegal arrest and to take disciplinary action against the officers involved.

Salma was arrested on September 25th, 2012 at 10:00 pm and produced before the Judicial Magistrate at 1:00 am. Thereafter, she was remanded to judicial custody in Central prison before being released on bail two days after. The court later acquitted Salma of all charges.

However, the Court also agreed that there was nothing untoward in the decision of the authorities and that there were exceptional circumstances warranting arrest. Thus, the court denied Salma’s prayer for compensation and ordered accordingly.

Case Title: S Salma v. State of Tamil Nadu and others