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 5 Replies

Advocate Suneel Moudgil (Advocate)     25 March 2020

 a woman can not be arrested after sunset and before sunrise. However this rule is subject to exceptions

N.K.Assumi (Advocate)     25 March 2020

Not a big deal, as even Jayalalitha the southern queem was arrested and taken to judicial custody from CM  office.

Akshay (Advocate)     25 March 2020


Thank you for your question

Section 46 CrPC-Arrest how made

46(4)- No woman shall be arrested after sunset and before sunrise, and where such exceptional circumstances exist, the woman police officer shall, by making a written report, obtain the prior permission of the Judicial Magistrate of the first class within whose local jurisdiction the offence is committed or the arrest is to be made.

Hope this will help you

Best regards,

Akshay Gupta

Rohit Krishan Naagpal (Advocate)     25 March 2020


Section 46(4) Cr.P.C. has been the subject matter of judicial interpretation by the High Courts of Bombay, Delhi and Rajasthan, Delhi and Rajasthan High Courts have 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.

 Rakesh Chand Vs. State (NCT of Delhi), 2015 SCC OnLine Del 14193 :-

"16. 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."

b) Smt. Sadhna Upmanyu Vs. Station House Officer ACB & others., 2016 SCC OnLine Raj 6502:-

"8. On consideration of submissions made on behalf of the respective parties and the material made available on record as well as the relevant legal provisions and the case law, I do not find any substance in the petition and it is liable to be dismissed for the following reasons:-

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."

c) Mrs. Bharati S. Khandhar Vs. Shri. Maruti Govind Jadhav, 2012 SCC OnLine Bom 1901:-

"14. In paragraph 6 of the affidavit of Mr. Ghuge, P.I., it is stated that the Petitioner was taken to the Police Station before sunset, i.e. at 5:45 p.m., and, therefore, it cannot be said that the arrest of the Petitioner was after sunset. If this contention is to be accepted, in that case, action of Respondent No. 1 to take the Petitioner to the Police Station and further to ask her to sit in the Police Station by Mr. Ghuge, P.I., is without following any procedure of arrest. Therefore, on the aforesaid admitted facts, it is abundantly clear that, without having a copy of the non-bailable warrant with PSI Jadhav, he has taken the Petitioner in custody and she was taken to the concerned Police Station. She was asked to sit there till 8:45 p.m. till her arrest by PI Ghuge. There is no manner of doubt that, the acts of the Respondent No. 1 and PI Ghuge are totally in violation of relevant provisions of the Code. It is admitted position that, no prior permission of the Judicial Magistrate, First Class, was asked for and without following the Mandate of subsection (4) of Section 46 of the Code, the Petitioner was arrested at 8:45 p.m. The case in hand is not only a classic example of violation of provisions of sub-section (4) of Section 46 of the Code, but initial action of the Respondent No. 1 to take the Petitioner to the Police Station at 5:30 p.m., without having even a non-bailable warrant with him and without following any procedure, as contemplated under the Code, was totally in disregard to the law laid down by the Supreme Court in D.K. Basu's case (supra). The provisions of Section 60A of the Code reads thus:-

"60A. Arrest to be made strictly according to the Code - 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."

The aforesaid provision clearly binds the Police Officers to follow the procedure prescribed under the Code before arrest is effected.

The Police Officer by no stretch of imagination can arrest any person in breach of provisions of the Code."

upreme Court judgment in Rajkumari and Another Vs. SHO NOIDA and Others, (2003) 11 SCC 500 wherein it has been held as under:-

"13. Regarding the plea taken by Petitioner 1 that the directions issued by this Court in Joginder Kumar (1994) 4 SCC 260 and D.K. Basu (1997) 1 SCC 416 had been violated, it may be stated at the very outset that admittedly, Petitioner 1 was produced in the Court of Magistrate concerned on that very day i.e. on 16-8-1997. She applied for bail in both the cases and in the bail applications, the pleas taken by her were: (i) that she had been falsely implicated in the case; (ii) that she had no criminal background; (iii) that there is no public witness of the crime in question; (iv) that she is a lady and belongs to a respectable family; (v) that she is prepared to furnish adequate surety; and (vi) that there is no apprehension of tampering with prosecution witnesses from her side. She did not state anything nor did she make any grievance before the Magistrate concerned regarding non-compliance with the directions issued in the aforesaid two cases, though her bail application was drafted and filed by a lawyer. If the plea taken now in the writ petitions was correct, in normal course grievance regarding the same should have been made on that very day when she was produced before the Magistrate especially when the legal aid and advice of a counsel was available to her."

In any event, violation of Section 46(4) Cr.P.C. may make the guilty police officers  amenable to disciplinary proceedings and/or liable to pay compensation or for accused's immediate release but not for civil contempt as defined under Section 2(b) of the Contempt of Courts Act, 1971.




Rohit K Naagpal

N.K.Assumi (Advocate)     26 March 2020

That Sub Section 4 of Section 46 of the CrPc.,  opens with the expression "Save in exceptional Circumstances", and literal interpretation of the provisions makes it very clear that arrest is an exception according to the circumstances of the case, and this section never prohibits arrest of a woman. . 

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