Woman's Midnight Arrest Without Magistrate Permission Illegal, But Not Ground To Quash Case: Rajasthan High Court
The Rajasthan High Court has held the midnight arrest of a woman without prior permission of the Magistrate to be violative of Section 43(5) BNSS, but ruled that the illegality in arrest alone was not a ground to quash the proceedings against her under the NDPS Act.At the same time, noting the lapse on the part of the Sub-Inspector who effected the arrest, the Court directed the Director...
The Rajasthan High Court has held the midnight arrest of a woman without prior permission of the Magistrate to be violative of Section 43(5) BNSS, but ruled that the illegality in arrest alone was not a ground to quash the proceedings against her under the NDPS Act.
At the same time, noting the lapse on the part of the Sub-Inspector who effected the arrest, the Court directed the Director General of Police, Rajasthan, to take action for training police personnel about the procedure of arrest.
“…Sub-Inspector, who conducted search after receipt of information has not bothered to read Section 43 of BNSS before effecting arrest of the present petitioner, who is a female. This clearly indicates that the police requires either extensive training or a handbook type of material so that the police personnel can comply with the provisions of law.”
The bench of Justice Ashok Kumar Jain was hearing a petition seeking quashing of an FIR registered under Section 8/20 of the NDPS Act against a woman accused.
The police had searched the house of the petitioner and the co-accused, after sunset on the concerned date that was followed by petitioner's arrest at around 1:15 am.
It was the case of the petitioner that the police had no authority to make such arrest of a female after sunset and before sunrise. Since the arrest was made midnight, it violated BNSS and hence was illegal.
On the contrary, the public prosecutor highlighted that the search and the arrest was made by a female police officer.
After hearing the contentions, the Court perused Section 43, BNSS that laid down process of arrest, and highlighted that as per Section 43(5), no woman could be arrested after sunrise and before sunset except for in exceptional circumstances. In such exceptional circumstances, the woman police office shall make a written report and obtain prior permission of concerned Judicial Magistrate.
The Court opined that no such prior permission was procured in the instant case. Hence, the arrest was made in violation of the provision and thus was illegal.
Reference was made to a division bench case of Deepa v. S. Vijayalakshmi that held that Section 46(4) CrPC (corresponding to Section 43(5), BNSS) was mandatory in nature.
At the same time, the Court made reference to certain Supreme Court judgments like State of Haryana v Bhajan Lal and Ankul Singh v State of Uttar Pradesh that laid down principles governing quashing of criminal proceedings.
It was opined that none of the principles/examples in these were sufficient to conclude that the FIR was misuse/abuse of authority. Hence, there was no ground to quash the FIR.
Further, it was held,
“the proceedings against the petitioner cannot be quashed only on the ground that the police has violated the mandatory provision under the law while making arrest of the petitioner. The charge against the petitioner is for involvement in offence relating to NDPS Act, therefore, on these grounds alone, we are not inclined to quash proceedings against the petitioner, though the petitioner may take advantage for seeking bail on this ground”.
Hence, the petition was dismissed.
Title: Smt. Mamta Jangid v State of Rajasthan
Citation: 2026 LiveLaw (Raj) 338