The Madras High Court has clarified that the prohibition against arresting women after sunset and before sunrise without judicial magistrate's approval, as stated in Section 46(4) of the Code of Criminal Procedure (CrPC), is directory, not mandatory.

The bench, consisting of Justices G.R. Swaminathan and M. Jothiraman, pointed out that Section 46(4) does not specify any consequences for non-compliance.

Had the provision been intended as mandatory, the legislature would have included penalties for non-adherence, the court stated.

The case arose from the arrest of S. Vijayalakshmi in Madurai on January 14, 2019, at around 8:00 p.m., without prior judicial approval. Vijayalakshmi sought legal action, claiming her arrest was unlawful.

A single-judge bench had deemed the arrest illegal and ordered disciplinary proceedings against the officers involved, as well as compensation for the woman. This decision was contested by the officers, including a sub-inspector and a woman head constable.

The division bench overturned the single judge's order, emphasizing that although Section 46(4) is designed to protect women, it does not automatically invalidate arrests made without judicial approval. The court reasoned that a provision’s language does not always dictate whether it is mandatory or directory, and the legislative intent, along with practical considerations, must guide the interpretation.

The bench explained that rigid adherence to procedures could sometimes harm the public interest. It offered a hypothetical scenario where a woman commits murder at night and the police are unable to obtain judicial approval in time to prevent the suspect from escaping. In such cases, immediate action might be necessary, the court suggested.

While the court acknowledged the purpose of Section 46(4) in promoting caution when arresting women, it noted that violations of the procedure would not automatically render the arrest illegal. However, the officers involved would need to explain why they deviated from the prescribed process. "This provision is meant as a cautionary guideline, not an absolute mandate," the bench stated.

The court did not grant relief to Sub-Inspector Deepa, who had carried out the arrest, citing inconsistencies in her statements regarding the arrest's circumstances. However, it allowed the writ petition of Women Head Constable Krishnaveni, who argued that she was compelled to follow her superior’s orders. The court acknowledged the importance of discipline within uniformed forces and concluded that Krishnaveni acted in line with her duties.

The writ petition by Inspector Anitha, who was not present during the incident, was also allowed.

Although the division bench ruled that Section 46(4) is directory, it underscored the necessity of protecting women's rights and ensuring proper procedures in arrests. The court instructed the Tamil Nadu Police Department to issue clearer guidelines for defining "exceptional circumstances" that justify nighttime arrests of women and suggested that the state legislature consider amendments based on recommendations in the Law Commission's 154th report.

Case Title: Deepa Vs. S. Vijayalakshmi and Others