Provisions Against Arrest Of Women At Night Are Directory, Not Mandatory: Madras HC Sets Aside Departmental Proceedings Against Police Officers

The Madras High Court recently observed that Section 46(4) of CrPC and Section 43(5) of the BNSS Act which prevents the arrest of a woman after sunset and before sunrise is directory and not mandatory. The bench of Justice GR Swaminathan and Justice M Jothiraman explained that the provisions did not provide the consequences of non-compliance of the requirement. The court observed that if the legislature intended the provision to be mandatory, it would have set out the consequences for non-compliance. The court also added that while effecting arrest, the police officer was performing a public duty and the victim could not be allowed to suffer for the neglect of duty by the police officer. “Section 46(4) of Cr.P.C has not spelt out the consequence of non-compliance with the requirement set out therein. If the provision was intended to be mandatory, the legislature would definitely have provided for the consequences of non-compliance. It cannot be denied that when a Police officer effects arrest pursuant to the power conferred on him by Cr.P.C, he is carrying out a public duty. The matter is not between the official effecting arrest and the arrestee. There is a third party involved, namely, victim / defacto complainant. The victim cannot be allowed to suffer for the neglect of duty by the Police officer,” the court observed. The bench relied on the decision of the Supreme Court in Dattatraya Moreshwar Vs The State of Bombay, in which it was held that a statute creating a public duty was directory and those conferring private rights were imperative. The court noted that holding the acts done in neglect of duty as null would cause serious inconvenience to the persons who are have no control over those entrusted with duty and would be against the main object of the Act. “When the provisions of a statute relate to the performance of a public duty, and the case is such that, to hold null and void acts done in neglect of this duty would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty and at the same time would not promote the main object of the legislature, it has been the practice of Courts to hold such provisions to be directory,” the court said. Emphasizing that mechanical adherence to the procedure may injure public interest, the court explained a situation where a woman may have committed a crime at midnight. The court added that in such situations if the concerned police officer were made to prepare a written report, send it to the local Magistrate, wait for the Magistrate's permission, and then proceed to arrest, the accused would have escaped. The court also added that in such situations, the Magistrate may not be available or accessible. Thus, the court observed that it was not in the interest of maintaining law and order to expect a police officer to write to the local magistrate and effect arrest only after that. “The functions of the judiciary and the police are complementary and not overlapping. Investigation includes the discovery and arrest of the suspected offender. We are therefore of the view that it would not be in the interest of maintaining law and order if a Police officer is expected to write to the local Magistrate and effect arrest only after obtaining his/her prior permission. Such a stringent condition would disable Police officers from effectively discharging their public duties,” the court said. At the same time, the court also observed that while the provision was not mandatory, the provision could not be rendered otiose by the Police. The court added that though failure to adhere to the provision would not lead to the arrest being declared illegal, the officer concerned had to explain his/her inability to comply with the procedure. The court was hearing appeals filed by Inspector of Police, Sub-inspector of Police and Head Constable against the order of a single judge ordering departmental action against them and compensation to a woman who was arrested by the officers. The woman had alleged that the officers had arrested her at 8:00 pm and was forcibly taken to the police station where she was abused, beaten up and injured with a knife. The single judge ruled that the arrest was illegal and directed disciplinary authority to initiate departmental action against the officers and also directed the woman to be paid Rs. 50,000. Though a challenge was raised regarding the maintainability of the appeal against the order of the single judge exercising criminal jurisdiction, the court overruled the objection and observed that the proceeding, the relief sought and the consequences flowing from the order have to be looked into. In the present case, the court noted that the woman had not sought bail but wanted the police officers to be departmentally dealt with. Thus, the court noted that the order did not fall under criminal jurisdiction and ...

Provisions Against Arrest Of Women At Night Are Directory, Not Mandatory: Madras HC Sets Aside Departmental Proceedings Against Police Officers

Upasana Sajeev

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