DAMODARAM SANJIVAYYA NATIONAL LAW

UNIVERSITY

VISAKHAPATNAM, A.P., INDIA

PROJECT TITLE:

ARREST OF WOMAN AFTER SUNSET AND BEFORE SUNRISE

SUBJECT: CODE OF CRIMINAL PROCEDURE

NAME OF THE FACULTY:

Ms. SOMA .B

NAME OF THE CANDIDATE:

G.V.MANISH KUMAR

ROLL NO:

2018029

SEMESTER:

4TH SEMESTER
TABLE OF CONTENTS:

1) INTRODUCTION
2) RIGHTS OF ARRESTED PERSON
3) D.K BASU V STATE OF WEST BENGAL
4) RIGHTS OF WOMEN
5) CASE STUDY
6) CONCLUSION
7) BIBLIOGRAPHY
Introduction:-

Meaning of Arrest:

Arrest consists in the seizure or touching of a person's body with a view to his restraint,
words may, however, amount to an arrest if, in the circumstances of the case, they are
calculated to bring and do bring to a person's notice that he is under compulsion and he
thereafter submits to the compulsion.

The aforesaid definition is similar in spirit to what is incorporated in Section 46 of the Code
of the Criminal Procedure, 1973. However, that deals with the aspects of arrests, has not
defined the ‘Arrest’. When a person is arrested, then the arrested person is taken into custody
of an authority empowered by the law for detaining the person.  The person is then asked to
answer the charges against him and he is detained so that no further crime is committed.

The power of arrest is the most important source of corruption and extortion by the police
officers. From the moment, a case is registered by the Police on a cognizable complaint, they
get the power to arrest any person who may be ‘concerned in that offence’, either on the basis
of the complaint itself or on credible information otherwise received. 

At times, there is restraint by the legal authority but sometimes the person on his own submits
to the custody of the person making the arrest.

2 types of arrest:-

1. An arrest made in view of a warrant issued by a magistrate

2. An arrest made without such a warrant but in accordance with some legal provision
permitting such an arrest.

In cases wherein, such exceptional circumstances do exist, a Lady Police Officer shall
make a written report and obtain prior permission of the Judicial Magistrate, First Class in
whose jurisdiction the offence is committed or the arrest is to be made

Section 46(4) of Code of Criminal Procedure, 1973 enumerates that a woman shall not be
arrested after sunset and before sunrise. However this rule is subject to exceptions, as that
provision starts with the phrase “save in exceptional circumstances”, which means the rule is
generally applicable but in case any exceptional case arises where immediate arrest is
imperative, then this rule shall not be applicable. Exceptional circumstance is not defined in
the code, hence that is subjective and no straitjacket formula is there to ascertain if
exceptional circumstances exist or not.

Every law is enacted with a legislative intent. Likewise the reason behind enacting this law is
to safeguard the modesty of women and to protect them from alleged unncessary harassments
by the police. Even if a woman has to be arrested under exceptional circumstances, such
arrest shall be made by woman police and prior to such arrest permission needs to be
obtained from local JMFC (Judicial Magistrate First Class). So basically the legislatures have
ensured that regardless of the offence which is alleged to have been committed by a woman,
her modesty shall be given paramount importance and shall not be compromised.

Rights of Arrested person:-

Arrest of a person is made in order to ensure his presence at the trial in connection
with any offences to which he is directly or indirectly connected or to prevent the
commission of a criminal offence. In law, there is principle of “presumption of innocence till
he has proven guilty” it requires a person arrested to be treated with humanity, Dignity and
respectfully till his guilt is proof. In a free society like ours, law is quite careful toward one’s
“personal liberty” and doesn’t permit the detention of any person without legal sanction.
Even article 21 of our constitution provides: “No person shall be deprived of his life or
personal liberty except according to procedure established by law”. The procedure
contemplated by this article must be ‘right, just and fair’ and not arbitrary, fanciful or
oppressive. The arrest should not only be legal but justified also, Even the Constitution of
India also recognize the rights of arrested person under the ‘Fundamental Rights ‘and here I
will inform you about those rights :-

D.K. Basu v. State of W.B1

The Hon'ble Supreme Court, in D.K. Basu Vs State of West Bengal, has laid down specific
guidelines required to be followed while making arrests:

1
D.K. Basu v State of West Bengal, (1997) 1 SCC 416
1. The police personnel carrying out the arrest and handling the interrogation of the
arrestee should bear accurate, visible and clear identification and name tags with their
designations. The particulars of all such police personnel who handle interrogation of
the arrestee should bear accurate, visible and clear identification and name tags with
their designation. The particular of all such personnel who handle interrogation of the
arrestee must be recorded in a register.

2. That the police officer carrying out the arrest shall prepare a memo of arrest at the
time of arrest and such memo shall be attested by at least one witness, who may be
either a member of the family of the arrestee or a respectable person of the locality
from where the arrest is made. It shall also be counter signed by the arrestee and shall
contain the time and date of arrest.

3. A person who has been arrested or detained and is being held in custody in a police
station or interrogation centre or other lock up, shall be entitled to have one friend or
relative or other person known to him or having interest in his welfare being
informed, as soon as practicable, that he has been arrested and is being detained at the
particular place, unless the attesting witness of the memo of arrest is himself such a
friend or a relative of the arrestee.

4. The time, place of arrest and venue of custody of an arrestee must be notified by the
police where the next friend or relative of the arrestee lives outside the district or town
through the Legal Aids Organization in the District and the police station of the area
concerned telegraphically within a period of 8 to 12 hours after the arrest.

5. The person arrested must be made aware of his right to have someone informed of his
arrest or detention as soon as he is put under arrest or is detained.

6. An entry must be made in the diary at the place of detention regarding the arrest of the
person which shall also disclosed the name of the next friend of the person who has
been informed of the arrest and the names land particulars of the police officials in
whose custody the arrestee is.

7. The arrestee should, where he so request, be also examines at the time of his arrest
and major and minor injuries, if any present on his /her body, must be recorded at that
 time. The Inspector Memo' must be signed both by the arrestee and the police officer
effecting the arrest and its copy provided to the arrestee.

8. The arrestee should be subjected to medical examination by the trained doctor every
48 hours during his detention In custody by a doctor on the panel of approved doctor
appointed by Director, Health Services of the concerned State or Union Territory,
Director, Health Services should prepare such a panel for all Tehsils and Districts as
well.

9. Copies of all the documents including the memo of arrest, referred to above, should
be sent to the Magistrate for his record.

10. The arrestee may be permitted to meet his lawyer during interrogation, though not
throughout the interrogation.

11. A police control room should be provided at all district and State headquarters where
information regarding the arrest and the place of custody of the arrestee shall be
communicated by the officer causing the arrest, within 12 hours of effecting the arrest
and at the police control room it should be displayed on a conspicuous notice board.

Rights of Women:-

 Right to free aid-

When a woman goes to the police station without being accompanied by a lawyer she
is either quoted wrong, ignored or humiliated for her statements. She should be aware
of the fact that she has a right to get the legal aid and that she should demand for it.
“According to a Delhi High Court ruling, whenever a rape is reported, the senior
house officer has to bring this to the notice of the Delhi Legal Services Authority. The
legal body then arranges for a lawyer for the victim.”
 Right to privacy
A woman who has been raped has a right to record her statement in private, in front of
the magistrate without being overheard by anyone else. She also has a freedom to
record her statement with a lady constable or a police officer in personal. Under
section 164 of the Criminal Procedure Code, the cops will have to give the privacy to
the victim without stressing her in front of masses.
 Right to untimely registration
 There are many reasons as to why a woman would postpone going to the police to
lodge a complaint. She considers her reputation, dignity of the family and threats from
the culprit to take her life away. Police in any way cannot say no to register her
complaint, no matter if it’s too late to register. The self-respect of women comes
before anything else. She cannot be denied of anything.
 Right to virtual complaints
According to the guidelines issued by the Delhi Police, a woman has the privilege of
lodging a complaint via email or registered post. If, for some reason, a woman can’t
go to the police station, she can send a written complaint through an email or
registered post addressed to a senior police officer of the level of Deputy
Commissioner or Commissioner of Police. The officer then directs the SHO of the
police station, of the area where the incident occurred, to conduct proper verification
of the complainant and lodge an FIR. The police can then come over to the residence
of the victim to take her statement.
 Right to Zero FIR
A rape victim can register her police complaint from any police station under the Zero
FIR ruling by Supreme Court. “Sometimes, the police station under which the
incident occurs refuses to register the victim’s complaint in order to keep clear of
responsibility, and tries sending the victim to another police station. In such cases, she
has the right to lodge an FIR at any police station in the city under the Zero FIR
ruling. The senior officer will then direct the SHO of the concerned police station to
lodge the FIR.” This is a Supreme Court ruling that not many women are aware of, so
don’t let the SHO of a police station send you away saying it “doesn’t come under his
area”.
 Right to no arrest
According to a Supreme Court ruling, a woman cannot be arrested after sunset and
before sunrise. There are many cases of women being harassed by the police at wee
hours, but all this can be avoided if you exercise the right of being present in the
police station only during daytime. “Even if there is a woman constable
accompanying the officers, the police can’t arrest a woman at night. In case the
woman has committed a serious crime, the police requires to get it in writing from the
magistrate explaining why the arrest is necessary during the night.”
 Right to not being called to the police station
 Women cannot be called to the police station for interrogation under Section 160 of
the Criminal Procedure Code. This law provides Indian women the right of not being
physically present at the police station for interrogation. “The police can interrogate a
woman at her residence in the presence of a woman constable and family members or
friends,” So, the next time you’re called to the police station for queries or
interrogation when you have faced any kind of harassment, quote this guideline of the
Supreme Court to exercise your right and remind the cops about it.
 Right to confidentiality
Under no circumstances can the identity of a rape victim be revealed. Neither the
police nor media can make known the name of the victim in public. Section 228-A of
Indian Penal Code makes the disclosure of a victim’s identity a punishable offense.
Printing or publishing the name or any matter which may make known the identity of
a woman against whom an offense has been committed is punishable. This is done to
prevent social victimization or ostracism of the victim of a sexual offense. Even while
a judgment is in progress at the high court or a lower court, the name of the victim is
not indicated, she is only described as ‘victim’ in the judgment.
 Right towards crime and not a medical condition
A case of rape can’t be dismissed even if the doctor says that rape has not taken place.
A victim of rape needs to be medically examined as per Section 164 A of the Criminal
Procedure Code, and only the report can act as proof. “A woman has the right to have
a copy of the medical report from the doctor. Rape is crime and not a medical
condition. It is a legal term and not a diagnosis to be made by the medical officer
treating the victim. The only statement that can be made by the medical officer is that
there is evidence of recent sexual activity. Whether the rape has occurred or not is a
legal conclusion and the doctor can’t decide on this.”
 Right to no sexual harassment
It is the duty of every employer to create a Sexual Harassment Complaints Committee
within the organization for complaints. According to a guideline issued by the
Supreme Court, it is mandatory for all firms, public and private, to set up these
committees to resolve matters of sexual harassment. It is also necessary that the
committee be headed by a woman and comprise of 50% women, as members. Also,
one of the members should be from a women’s welfare group.
Can a pregnant women be arrested:-

It depends on the gravity of offence. If a pregnant woman commits heinous crime like
Murder, attempt to murder etc. then she could be arrested without leniency. If she commit
non serious offence like theft, cheating etc. the she will be bound down to join the
investigation and after completion of investigation, she will be charge sheeted and let the
court decide the fate of woman if found guilty.

The medical and time of arrest is very crucial when any woman placed under arrest.
Generally women are not arrested after sunset and before sunrise provided that she has
committed heinous offence, if woman to be arrested at night then prior permission from Duty
Magistrate (kind of reserve magistrate) has to be obtained first.

Being pregnant is no ground to avoid any criminal liability. The only exemption is the
postponement of execution of death sentence in case of pregnant women. (Section 416, Code
of Criminal Procedure).

The intent of the legislature is to safeguard women with respect and dignity, but it has
occurred that the police officers violate the law and behave inappropriately with women.

The Supreme Court of India at different occurrences has notified the Governments to pass
effective laws and uplift the Principles of Equality towards safeguarding the arrest of women.
The laws make it mandatory that women shall be handled by female police officers, no arrest
can be made after sunset and before sunrise, pregnant women shall be provided with
comfortable needs during their arrests.

Section 60A of the Code of Civil Procedure states that,

“No arrest shall be made except in accordance with the provisions of this code or any other
law for the time being in force providing for arrest.”

Section 51(2)

This states that, “Whenever it is necessary to cause a female to be searched, the search shall
be made by another female with strict regard to decency.”
Section 53(2)

According to Section 53 (2) of Code of Criminal Procedure, 1973,

“Whenever the person of a female is to be examined under this section, the examination shall
be made only by, or under the supervision of, a female registered medical practitioner.”

Section160(1)

“No woman under the age of 15 years shall be required to attend at any place other than the
place in which such a female person resides.”

Women should be guarded by female constables/police officers. They must be questioned in

the presence of policewomen. All necessary pre-natal and post-natal care should be provided
to females who are arrested. Restraints should only be used on pregnant women as a last
resort. Their safety or the safety of their foetus should never be put at risk. Women must
never be restrained during labour.

Case Study

 Sheela Barse vs State of Maharashtra2

The Supreme Court of India in the case of Sheela Barse v. the State of Maharashtra has held
that, it is the duty of the police officer making the arrest to see that the arrested females are
segregated from men and kept in female lock-up in the police station. However, in case there
is no separate lock-up available, women should be kept in a separate room. Also, according to
the proviso in Section 160 (1), women should not be called to the police station or to any
place other than their place of residence for questioning inasmuch.

Guildelines of the case:

1. First, the Police Officer is duty bond while making arrest to see that arrested females
are segregated from men and kept in female lock-up in the Police Station. He/she
must also make sure that if there is no separate lockup; women are kept in a separate
room. Also, Women Police Officers should be associated where females are being
arrested.
2
Sheela Barse v State of Maharashtra, 1983 AIR 378
 2. Second, the cops arresting women must avoid the time between sunset and sunrise;
this guideline was issued after several instances of sexual and physical exploitation in
Police Stations by the cops themselves. 
3. Third, according to the guideline women and girls should not be called to the Police
Station or to any place other than their place of residence for questioning. Also, while
the inquiry is being done, the time must be chosen the arrestee is not embarrassed.
4. Fourth, in cases where medical examination of the arrestee or any other women has to
be done, it should be carried out only under the supervision of female medical
practitioners. Also, arrestee should be given all necessary pre-natal and post-natacare.
5. Fifth, the cops must avoid arresting pregnant women and choose the option only if
there is no other option as it’s not just the matter of the arrested woman but also the
safety of the foetus which could get damaged in hustle-bustle. Also, labouring women
must never be restrained.
6. Least but not the last, girls and women should be guarded by female constables/police
officers and if any questioning is done, it must done in presence of female cops.

 Bharati S. Khandhar vs Maruti Govind Jadhav3

In the landmark case of Bharati S. Khandhar vs. Maruti Govind Jadhav, the petitioner was
aware of the proviso of section 46 (1) but still was unaware about the proviso of section 46
(4) of the Code of Criminal Procedure and she was arrested after sunset and was also
mistreated by the police officers.

In the PNB Fraud Case, the Bombay High Court imposed a fine on the Central Bureau of
Investigation (CBI) for making an illegal arrest. The accused was arrested in violation of
Section 46 (4) of the Code of Criminal Procedure. The proviso bars any arrest of women
made after sunset and before sunrise unless, in exceptional situations, the arrest can only be
made after a woman police officer gets prior permission from the Judicial Magistrate First
Class. The lady had filed a writ petition before the Bombay High Court for the violation of
section 46 (4) and 60 A of the Code of Criminal Procedure by the officers of CBI. The
Bombay High Court allowed the writ petition and held that the arrest of the petitioner was
illegal and contrary to the provisions of Section 46 (4) of the Code, and imposed a fine of Rs.
50,000/- upon the respondents.

3
Bharati S. Khandhar v Maruti Govind Jadhav, 2012 SCC OnlineBom 1901.
  Court On Its Own Motion VS Anil Dureja,4

Facts:

On 26 th March, 2015 one Mohd. Rizwan (child) aged about two years was kidnapped by
some unknown persons while he was playing outside his Jhuggi No. 166 at Rakhi Market
which is within the jurisdiction of PS Sarai Rohilla between 7:00 a.m. and 1:00 p.m.

On 27 th March, 2015, Mohd. Parvez (child s father) submitted a complaint to PS Sarai

Rohilla that his child was missing from the jhuggi and the same was recorded 39A attested by
HC Rajeev Kumar. An FIR under Section 363 IPC was registered and the same was marked
to IO/ Assistant Sub Inspector Nahar Singh.

During investigation of the case, accused no. 1-Shamsha Begum was arrested at 11:00 p.m.
on 28th March, 2015 Madipur Colony, Delhi by IO Nahar Singh, PS Sarai Rohilla. In her
disclosure statement, accused no. 1-Shamsha Begum disclosed that she had sold the child for
a sum of Rs. 5000/- to Mohd. Aalim (accused no. 2). The child was recovered from the house
of accused no. 2 and both the accused were arrested on 28th March, 2015 after sunset.

On the same date, Sub Inspector Smt. Nirmala, who was a part of the police party headed by
Assistant Sub Inspector Nahar Singh, made a statement under Section 161 Cr.P.C. that she
was present when the arrest was made and also that the permission of the Ilaka Magistrate
was sought before making arrest of accused no. 1- Shamsha Begum. Constable Ajay Yadav,
who was also a part of the police party headed by Assistant Sub Inspector Nahar Singh, stated
under , Section 161 Cr.P.C. that he was present when the arrest was made and that the
permission of the Ilaka Magistrate was sought prior to making the arrest of accused no. 1-
Shamsha Begum.

On 29th March, 2015, the accused no. 1-Shamsha Begum was produced before Duty MM who
remanded her to judicial custody for three days. On 31 st March, 2015, an application for
conducting Test Identification Parade (TIP) was moved by the IO before the Court of
Metropolitan Magistrate and the same was marked to Metropolitan Magistrate-02 (Central).
The TIP proceeding was conducted wherein the accused no. 1-Shamsha Begum refused to
join the proceedings.

4
Court On Its Own Motion v Anil Dureja, 2016 Del 5405
On 27th May, 2015, final report under Section 173 Cr.P.C. was filed. It was stated in the final
report that the permission of Metropolitan Magistrate was taken prior to the arrest of accused
no. 1-Shamsha Begum.

On 2nd December, 2015, the accused was discharged under Section 370 IPC on the ground
that there was no independent material to corroborate the disclosure statement. Consequently,
the matter was remanded back to the Court of CMM for assigning it to a competent court for
trial.

On 4th January, 2016, the accused no. 1-Shamsha Begum filed an application under Section
46(4) Cr.P.C.

On 5th April, 2016, the order of reference was passed.

Issues:

The Court of Mr. Ajay Kumar Malik, Metropolitan Magistrate, Delhi in which the accused
no. 1-Shamsha Begum had submitted that she had been arrested illegally during night hours
in violation of Section 46(4) of Code of Criminal Procedure as well as the bindi directions
issued by the Supreme Court in D.K. Basu Vs. State of W.B., 5 and Sheela Barse Vs. State of
Maharasthra6?

MM Order: 05th January, 2016 that the present matter is a fit case for indulgence by the High
Court, Delhi under the contempt jurisdiction. He has also in his order held that that the reply
filed by the SHO, Police Station, Sarai Rohilla to the contempt petition is evasive and the
records do not show that he had obtained any permission from any judicial magistrate/Duty
Magistrate prior to arrest of accused no. 1-Shamsha Begum at 11:00 p.m.

Interpretation:

Section 46(4) Cr.P.C. has been the subject matter of judicial interpretation by the High
Courts. Held that exigency of situation will have to be taken into account before it can be
held that the arrest of a woman after sunset is in contravention of Section 46(4) Cr.P.C. , yet
the Bombay High Court has held that , Section 60-A Cr.P.C. binds a police officer to follow
the procedure prescribed under the Cr.P.C. before arrest is effected and as a consequence no
person can be arrested in breach of Section 46(4) Cr.P.C.

5
(1997) 1 SCC 416
6
(1983) 2 SCC 96
  Rakesh Chand Vs. State (NCT of Delhi)7:-
Though there is a statutory requirement of obtaining written permission from a Judicial
Magistrate in case a woman is to be arrested between sunset and sunrise but it cannot be said
that under no circumstance can such requirement be waived. The exigencies of the situation
have to be taken into account. There could be a lapse on the part of the arresting officer in
that regard but, even then, before any action is taken against him legally or departmentally, he
is required to be given a notice for the same and is further required to be heard. The aforesaid
principles of fair play and action, be it civil or criminal action, can never be waived, forgotten
or disregarded.

 Smt. SadhnaUpmanyu Vs. Station House Officer ACB & others.8:-

Although, sub-section (4) of Section 46 Cr.P.C. provides that no woman shall be arrested
after sun set and before sun rise except in exceptional circumstances and where the police
officer effecting arrest after sun set and before sun rise claims existence of some exceptional
circumstances, he must obtain the prior permission of the Judicial Magistrate or Special
Court within whose local jurisdiction the offence has been committed or the arrest is to be
made but it cannot be said that under no circumstances can such requirement be waived. The
exigencies of the situation have to be taken into account before it is held that arrest of the
woman has been made in contravention of this provision. In a case it may happen that offence
itself is committed after sun set and before sun rise and after undertaking some preliminary
investigation involvement of a woman is found in the offence and her immediate arrest is
required to be made and practically it is not possible to obtain the prior permission of the
concerned Magistrate, in my opinion in such a situation the arrest of the woman accused
cannot be said to be in contravention of the requirement of this provision and it does not
amount violation of fundamental right conferred upon such woman under , Article 21 of the
Constitution of India . It is well settled legal position that personal liberty of a person can be
curbed by procedure established by law and, Code of Criminal Procedure is one of such
procedural law.
Appellants contention:

7
2015 SCC OnLine Del 14193
8
2016 SCC OnLine Raj 6502
  Plea of violation of Section 46(4) Cr.P.C. does not appear to have been raised at any
point before the Metropolitan Magistrate, i.e., from the date of initial production on
29th March, 2015 to any time prior to filing of the application under ,Section 46(4)
Cr.P.C. on 4th January, 2016.
 It is evident that the mandate of Section 46(4) Cr.P.C. has been complied with in the
present case. In support of his contention, he relies upon the statements of Constable
Ajay, Sub Inspector Smt. Nirmala and the charge- sheet. According to him, the
documents on record reveal that permission of the IlakaMagistrate had been obtained
prior to causing the arrest of accused no. 1-Shamsha Begum.

Courts observation:
 This Court has not framed Contempt of Court Rules does not mean that the
subordinate judiciary does not have the jurisdiction or the power to forward cases of
civil contempt to the High Court. As Section 10 of the Contempt of Courts Act, 1971
gives power to the High Court to punish for contempt of subordinate courts, the cases
of civil contempt can surely be brought to the notice of the High Court by the
subordinate judiciary.
 Court finds that at this stage of the proceeding the Metropolitan Magistrate could not
have concluded that Section 46(4) Cr.P.C. had been violated inasmuch as the matter is
pending adjudication and it is the case of the respondents in the statements and
charge-sheet filed prior in time that the permission of illaka Magistrate had been
obtained to arrest accused no. 1-Shamsha Begum. In fact, the observations in the
impugned reference order amount to prejudging one of the crucial issues to be
determined during the course of the trial.
 Court finds that neither any contempt petition was filed by the applicant/accused no.
1-Shamsha Begum nor any reply was filed to the contempt petition by the SHO,
Police Station Sarai Rohilla. Consequently, the reference to an alleged contempt
petition as well as its reply by the Metropolitan Magistrate in the reference order are
clearly erroneous.
 The judgments of D.K. Basu(supra) and Sheela Barse(supra) are clearly inapplicable
to the facts of the present case as they do not deal with the violation of Section 46(4)
Cr.P.C.
 Judgment:
The present contempt reference is closed and the petition filed by Accused1 for
registration of FIR on the grounds of violation of Section 46(4) Cr.P.Cis dismissed.

 Ankita Harinath Mishra Vs State of Maharashtra9

Facts:
It is the case of the applicant that, pursuant to a missing complaint, a F.I.R. was registered
by one Mrs. Poonam Nityanand Pandey, who is original complainant, under sections 302
and201 of the Indian Penal Code or the murder of her husband Mr.Nityanand
Sheetalprasad Pandey on 17.03.2019. The information was received by the respondent's
office at 20:05 on 17.03.2019.The FIR was registered at 20:33 p.m. on the night of
17.03.2019 against unknown persons. Thereafter, after alleged investigation, the
respondent's officers came tothe conclusion that the present applicant has committed the
murder of the deceased and was shown as an accusedmerely on the basis of suspicion,
sans any legal and/or material evidence as against her.It is further case of the applicant
that, immediately thereafter, the respondent's officers preferred a groundless application
on 17.03.2019 itself before the learned Magistrate seeking permission to arrest thepresent
applicant after sunset without citing any exceptional circumstances. The learned
Magistrate granted the said permission to arrest the applicant vide order dated
17.03.2019.Being aggrieved by the said order, the present applicant has filed the present
criminal application .The learned Counsel appearing for the applicant submitted that a
perusal of the said impugned order will reveal that no exceptional circumstances were
relied upon by the learned Magistrate to carve out an exception granting permission to
arrest the applicant after sunset. Therefore, the impugned order on thebasis of which the
applicant was arrested is illegal, erroneous and bad in law, and deserves to be set aside.He
further submitted that immediately thereafter, acting upon the impugned order, the
respondent's officers apprehended and arrested the applicant. The applicant underwent
police custody for a period of 14 days after which she was remanded to judicial custody.
The applicant is presently lodged and detained in Kalyan Jail.He further submitted that
the impugned order was passed in contravention to sub-section (4) of section 46 of the
Code of Criminal Procedure. The arrest of the applicant is itself void, illegal and bad in
9
Ankita Harinath Mishra v State of Maharashtra, 2019 IndLaw Bom 842
law. Therefore, the applicant is challenging the impugned order, upon passing of which,
she was arrested on the following grounds, which are urged without prejudice to each
other.It is further submitted that the applicant has been illegally arrested and detained, and
is presently languishing in jail. The applicant has been in illegal custody since 17.03.2019
i.e., a period of 80 days. Theimpugned order on the basis of arrest was effected by the
respondent, was in gross violation and contradiction of the provisions of law and thereby
violated the applicant's fundamental and constitutionalrights. The applicant places
reliance on the Supreme Court judgment in the case of Joginder Kumar V/s. State of UP
&Ors 1994 SCC (4) 260. wherein the Hon'ble Supreme Court has frowned upon illegal
arrests and upheld the constitutional right to life and liberty and protection from such
unjustified and illegal arrest.It is further submitted that the constitutional guarantee of
'Right to Life and Liberty' as enshrined in Article 21 of the Constitution of India
categorically states that no person shall be deprived to his right to life except according to
the procedure established by law. It is an obligation upon the State to ensure that there is
no infringement of indefectible Right to Life without following procedure established by
law. The Cr.P.C. outlinesthe manner and the extent to which a person can be denuded of
his liberty and any deviation from the prescribed procedure in the manner of arrest can be
declared as illegal. In the present case, the impugned order granting permission to the
respondent to arrest the applicant is in contravention of sub-section (4) of section 46 and
60A of the Cr.P.C. has resulted in violation of the Constitutional and Fundamental Rights
of the applicant which has caused her irreparable stress and trauma. Learned Counsel
placed reliance on the ratio laid down in the judgment passed by the Division Bench of
the Bombay High Court in the case of CBI vs. State of Maharashtra dated 10.05.2018
wherein this Court upheld Right to Life and Liberty while declaring arrest in
contravention of sub-section (4) of section 46 of the Cr.P.C. as illegal and further
allconsequent actions namely remand as null and void thereby releasing the party from
illegal detention.It is further submitted that, the Courts have on innumerable occasion
before and after passing Amendment Act of 2005 held that, no female person shall be
detained or arrested without presence of a lady constable and in no case after sunset and
before sunset. The Courts have held arrest effected in contravention of sub-section (4) of
section 46 of the Cr.P.C. as ex-facie illegal. Therefore, relying upon averments made in
the application and grounds taken therein, annexures thereto, learned Counselappearing
for the applicant prays that the application may be allowed.
Apellant Arguments:-
It appears from the contents of the letter and also the order passed by learned Magistrate that,
before the applicant was arrested, the learned Magistrate granted permission for such arrest. It
further appears that the police found it just and necessary to effect the arrest of the applicant
at the earliest and, therefore, tocomply with the statutory provisions and other formalities of
arrest, one R.D.Londhe, Asst. Police Inspector, a lady police officer from Padgha Police
Station Camp, Bhiwandi Taluka Police Station was called. After going through the statements
of the wife of the deceased, ADR lodged at the said police station and also report of the LCB.
The said lady police officer reported to the learned Magistrate, Bhiwandi so as to seek prior
permission of the learned Magistrate for the arrest of the applicant keeping in view the
aforesaid provisions. Therefore, in the present case, keeping in view the contents of the
application, which was filed by respondent-State on 17.03.2019, the learned Magistrate has
passed the order. The said application clearly discloses that the applicant is involved in
serious offence. The procedure as envisaged under sub-section (4) of section 46 of the
Cr.P.C. has been scrupulously followed in the present case and after obtaining permission
from the learned Magistrate, at the hands of lady police officer, the applicant was
arrested.The learned Counsel appearing for the applicant has placed heavy reliance upon the
ratio laid down in the cases of Jaywant Balkrishna Sail &Ors. , MRs. Bharati S. Khandhar
and Kavita Manikikarof Mumbai. However, facts of the present case are clearly
distinguishable vis-a-vis the facts in three cases. In the said cases, women accused were
arrested without prior permission of the learned Magistrate.since the lady police officer did
not make report to the Magistrate so as to obtain prior permission for effecting the arrest.
Thereafter, they were produced before the learned Magistrate on the second day ofarrest.
Thus, there was clear violation of the aforesaid provisions in all those aforesaid cases. In the
present case, as already observed, respondent has scrupulously followed the mandate ofsub-
section (4) of section 46 and also section 60A of the Cr.P.C. before arresting the applicant. In
that view of the matter, this Court is of the opinion that there is no substance in the
application. Hence, criminal application stands rejected. Rule stands discharged.

Defendant Arguments:-
State relying upon an affidavit in reply filed by Mr.SanjayDattuHajare, PI, presently attached
to Bhiwandi Taluka Police Station, Dist. Thane (Rural), submitted that on 16.03.2019, a
missing complaint came to be lodged by the wife of the deceased at Kashimira Police Station.
In the said complaint, she made a reference to the applicant abovenamed. The deceased was
the Editor of a Magazine by name "India Un-Bound". The applicant was working in the said
office along with the deceased. The deceased was missing at that time and on inquiry with the
applicant by the wife of the deceased, she made a reference to Sai Palace Hotel at Kashimira
and hence the said complaint was lodged at the said police station. The said complaint was
numbered as 31/2019 dated 16.03.2019. He further submitted that on the same day, the dead
body of the deceased was found at Kardi Village near Nala in the local jurisdiction of the said
police station. Accordingly, the ADR No. 15/2019 came to be registered at Bhiwandi Taluka
Police Station. On the next day i.e., 17.03.2019, the local Crime Branch of the KashimiraUnit
(for short, "'LCB") also started investigation on the basis of the said missing complaint dated
16.03.2019. As there was a reference of the applicant in the said missing complaint, the LCB
called her for interrogation. On 17.03.2019, the applicant and the other accused Satishkumar
Mishra were interrogated by the concerned officer of LCB whole day. As the local police
station also started investigation on the basis of the said ADR, a FIR No. 119/2019 came to
be registered at the said police station for the offencespunishable under sections 302 and 201
of the I.P.C. at about 08.05 p.m. The police also recored the statement of the wife of the
deceased. It is pertinent to note that during the interrogation at the LCB, the applicant gave
admission of her guilt and commission of the murder of the deceased. She also admitted her
attempt of destroying the dead body at the village Khardi near Nalla. Therefore, the LCB
produced the applicant and the other accused before the said police station at about 10.00
p.m.

Judgement:-
It is further submitted that in this peculiar situation and on the receipt of the letter dated
17.03.2019 written by the Asst. Police Inspector, LCB, Thane (Rural) to the Sr. Police
Inspector, Bhiwandi Taluka PoliceStation, the police found it just and necessary to effect the
arrest of the applicant at the earliest. Therefore, to comply with the statutory norms and other
formalities of arrest, one R.D.Londhe, Asst. Police Inspector, a lady police officer from
Padgha Police Station Camp, Bhiwandi Taluka Police Station was called. After going through
the earlier statements of the wife of the deceased, ADR lodged at the said police station,
report of the LCB, the said lady police officer reported to the J.M.F.C., Bhiwandi to enable
her to arrest the applicant in accordance with sub-section 4 of section 46 of the Cr.P.C. It is
further submitted that after the concerned Magistrate granted permission to arrest the
applicant, the said API Londhe effected the arrest of the applicant and did further formalities
as per the statutory normsand guidelines of the Hon'ble Supreme Court. These facts clearly
show that the police scrupulously and diligently complied with the statutory requirements
contemplated under sub-section 4 of section 46 of the Cr.P.C.and there is no lapse or
illegality on the part of the police while effecting the arrest of the applicant.He relied on the
copies of the medical papers and other documents as per guidelines laid down by the Hon'ble
Supreme Court in the case of D.K.Basu vs. State of West Bengal. It is further submitted that
on the next day i.e., on 18.03.2019, the applicant voluntarily made disclosure about the gold
ornaments on the person of the deceased, which she had kept at the residence at Mira Road.
On the same day, the applicant along with the other accused were produced before the
learned Magistrate for remand. On the Remand Application dated 18.03.2019, the learned
Magistrate granted police custody of the applicant and the other accused upto 27.03.2019. It
is pertinent to note that there was no complaint/grievance made by the applicant of any
custodial torture or harassment or ill-treatment to the learned Magistrate. It is further
submitted that thereafter, on 26.03.2019, the applicant once again voluntarily made a
disclosure of the nylon wire which was used to strangulate the deceased and a plastic bottle
which was used to prepare a shake, which the deceased was made to drink and he became
unconscious. It is further submitted that thereafter, on 27.03.2019, the applicant along with
the other accused were again produced before the learned Magistrate for her second remand.
The learned Magistrate further extended the police custody of the applicant till 30.03.2019.
Thereafter, on 30.03.2019, the applicant and other accused were produced before the learned
Magistrate for third remand. The learned Magistrate, however, granted judicial custody of the
applicant. It is significant to note that the applicant never made any complaint/grievance to
the learned Magistrate against the police about any custodial torture, ill-treatment or
harassment of any nature whatever. The above facts clearly show that the police have acted
fairly and strictly in accordance with the provisions of law and other guidelines laid down by
the Hon'ble Supreme Court on the relevant issue. The above facts also show that the police
complied with the statutory requirement as contemplated under sub-section (4) of section 46
of the Cr.P.C. and there is no illegality or high-handedness by the police as falsely alleged by
the applicant. It is further submitted that it is also not out of place to mention that during the
course of further investigation, the police also recorded the statement of the concerned police
officer of the LCB. The police thereafter completed investigation and filed charge sheet on
11.06.2019 in the Court of J.M.F.C., Bhiwandi. It is also pertinent to note that the applicant in
this entire period, never made any grievance of her arrest being illegal. The same was made at
the belated stage after filing of the charge sheet by the police. The factsmentioned above
clearly show that the grievance of the applicant is totally baseless and deserves to be rejected.
Therefore, it is prayed that this criminal application being devoid of merits and the same be
reject with costs.

Conclusion:-
The Constitution of India has embodied within itself grounds for gender equality. The
Fundamental Rights, Fundamental Duties and Directive Principles together work towards
shaping policies and putting safeguards not just for women empowerment but also provides
protection against invasion of the rights.
The criminal justice process has to deal with the citizen at several stages. Arrest is the first
stage. At this stage the freedom of the citizen is restrained to safeguard public interest.
Different purposes are served by arresting a person.
Sometimes, it saves him/her from retaliatory assault from the public. Sometimes, he/she is
prevented from committing further crimes. And surely arrest helps him/her to be presented
before the appropriate court to stand trial. It is to serve the third purpose that usually a suspect
is arrested by the police.
Even during an arrest where the accused is a Woman, her safety is a priority for fair trial of
the accused and to ensure that, an amendment in 2005 to the Criminal Procedure Code, 1973
made a very significant point related to the safety of woman. A woman cannot be arrested
after sunset and before sunrise, except in an exceptional case on the orders of a Judicial
Magistrate First Class.
It is the first and foremost duty of the police to protect all individuals and their rights in
society which also includes the arrested people. Thus, it is the duty of the police to also
protect the rights of the accused and make sure that they are treated fairly according to the
proceedings established by law and not harassed unnecessarily. The police should make sure
that the person arrested is informed about his rights like grounds of arrest, if he / she is
entitled to bail and produced before a magistrate within twenty four hours.
In cases wherein, such exceptional circumstances do exist, a Lady Police Officer shall make a
written report and obtain prior permission of the Judicial Magistrate, First Class in whose
jurisdiction the offence is committed or the arrest is to be made.
Bibliography:-

 Code of criminal procedure,1973,Ratanlal and Dhirajlal ,Lexis Nexis,22 nd

edition,2018 Reprint
 www.indiankanoon.com
 www.westlaw.com
 DK.Basu guide lines
 Bharati S. Khandhar case guide lines
 177th law commission Report