CRPC section 46 (4) Section 46 of Code of Criminal Procedure, 1973 provides for the mode of arrest.

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Arrest in violation of Section 46(4) CrPC would amount to “illegal arrest”

Bombay High Court: In a Writ Petition seeking a writ of Mandamus, the Division Bench comprising of S.J. Kathawalla and Bharti H.
Bombay High Court: In a Writ Petition seeking a writ of Mandamus, the Division Bench comprising of S.J. Kathawalla and Bharti H. Dangre, JJ., decided that non-adherence to the provisions of Section 46(4) of the Criminal Procedure Code would absolutely amount to illegal arrest.

The petitioner was one of the accused in the most talked about case “PNB Scam”, it has been contended by the petitioner that she was called for an investigation in the said case by the respondent-CBI for which she duly cooperated with the investigation agency. Petitioner was arrested at about 8 p.m. after which she was produced before of the Special Judge. Petitioner claims that she had invited the attention of the Special Judge towards her case of illegal arrest wherein she pointed out that her arrest violated the ambit of Section 46(4) of the said Act, though the Special Judge ignored the fact of illegal arrest and proceeded by remanding the petitioner to the custody of the respondent-CBI for a period of 14 days.

Learned counsel for the petitioner had drawn the attention of the Court by giving due explanation of the violation of Section 46(4) of the Criminal Procedure Code in Chapter V that the arrest was absolutely illegal in terms that it has been clearly explained in Section 46 for “Arrest how made”. The said provision is salutary one which provides safeguard against the arrest of a woman after sunset and before sunrise and as per the learned counsel, the safeguards have to be strictly adhered to.

Therefore, the Hon’ble High Court on recording the contentions of the petitioner and noting the facts and circumstances of the case, briefed about the point that the precious guarantee of ‘Life and Liberty’ enshrined in Article 21 of the Constitution of India cannot be denied to a convict or accused on a trial and it is an obligation upon State to ensure that there is no infringement of the right of the citizen.

Further, the Court concluded by stating that any deviation from the prescribed procedure in the manner of arrest can therefore, be not countenanced and is liable to be declared as illegal. Allowing the writ petition , it was held that the officials who were responsible for the violation of the Section 46(4) of the Criminal Procedure Code, for arresting the accused after sunset, will be liable for disciplinary proceedings. [Kavita Manikikar v. CBI, 2018 SCC OnLine Bom 1095, dated 10-05-2018]

Section 46 of Code of Criminal Procedure, 1973 provides for the mode of arrest. Arrest consists of actual seizure or touching of a person's body with a view to his detention. The pronouncing of the words of arrest is not an arrest, unless a person sought to be arrested submits to the process and goes with the Arresting Officer.

The provisions of sub-section (4) of Section 46 of the Code of Criminal Procedure, 1973 mandates that, if the Police want to arrest woman after sunset, they have to seek prior permission of the Magistrate, and arrest should be made by a Lady Police Officer.

The Legislature in its wisdom added sub-section (4) to Section 46 of the Code by Section 6 of the Code Of Criminal Procedure (Amendment) Act, 2005 Act 25 of 2005 (w. e. f. 23,06.2006), to prohibit arrest of a woman after sunset and before sunrise except in unavoidable circumstances.

The provisions of sub-section (4) of Section 46 of the Code reads thus:
[46 (4) Save in exceptional circumstances, 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].

From bare perusal of the afore-stated provisions of sub-section (4) of Section 46 of the Code, it is crystal clear that the said provision mandates that no woman shall be arrested after sunset and before sunrise save in exceptional circumstances, without the prior permission of the Judicial Magistrate First Class, in whose local 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 e