The Bombay High Court imposed a fine on the Central Bureau of Investigation (CBI) for the arrest of a woman after sunset, which is undoubtedly in direct contravention of Section 46 (4) of the Code of Criminal Procedure (CrPC).
Facts In Brief
The petitioner, Kavita Manikakar had appeared before the CBI’s office on February 20 at around 3 in the afternoon, in connection with the investigation in the Punjab National Bank fraud case. However, at 8 in the evening, the CBI proceeded to arrest Manikakar, after preparing an Arrest-cum-Personal Search Memo.
The CBI, through Advocate Ameeta Kuttikrushnan, contended that the arrest was made because Manikakar was not cooperating with the investigation and as there was a strong suspicion that they would abscond if not arrested.
On the other hand, Advocate Yashwardhan Tiwari, appearing for Manikakar, referred to Sections 46 (4) and 60A of the CrPC, besides Section 12 of the CBI Manual to argue that the arrest was illegal.
Whereas Section 46 (4) provided that no woman may be arrested after sunset and before sunrise, Section 60 A reiterated that all arrests have to be made in consonance with the CrPC. Section 12 requires that the CBI follow the procedure prescribed by law in their activities.
Order of the Court
- The Bench observed that Section 46 (4) of the CrPC, undoubtedly creates an embargo on the arrest of a woman who is an accused in an offence to be arrested after sunset and before sunrise. Furthermore, the Court found that the law requires that prior permission of the Judicial Magistrate, First Class be obtained to arrest a woman beyond the permissible hours if at all there are exceptional circumstances. However, there was nothing to indicate that the CBI had followed this procedure.
- “No doubt true, Section 46 (4) of the Code itself carves out an exception incorporating the provision of obtaining written permission from the Judicial Magistrate First The said procedure can be set into motion for dealing with such an exigency. However, the CBI has failed to demonstrate any such exercise being undertaken.
- Except expressing that there was a strong suspicion of the petitioner being absconding, no exigency has been pointed out in the affidavit justifying non-compliance of a mandatory requirement in sub-section (4). In any case, if such an exigency were in existence, recourse could have been sought to the exception carved out in Section 46 (4) itself.
- ”Moreover, such arrest is only permissible if it is made by a woman officer. On the contrary, in this case, the Arrest memo disclosed that the arrest was made by a male officer. The CBI’s defence that there were women officers present in the office was found to be irrelevant”.The contention of the CBI that since the woman was already in custody at 3 in the afternoon, the formal arrest at 8 pm would not stand vitiated was also rejected by the Court.
Difference between Arrest and Custody
Holding that there is a clear distinction between “custody” and “arrest” for the purpose of Section 46, CrPC, the Court held,
“The Legislature was conscious while it used the term as ‘Arrest’ as distinct from ‘Custody’ and the safeguard which is intended to be provided to a woman is in relation to ‘Arrest’.
The petitioner may have been in custody before the sunset, however, she is arrested at 20:00 hrs which are after sunset and therefore the action of the CBI clearly falls within the prohibition imposed under Sub Section (4) of Section 46 of the Code.”
It was also noted that in identical circumstances, a division bench has previously ruled in favour of the detainee in the case of Mrs Bharti S Kjandhar v Maruti Goving Jadhav PSI.
- On these grounds, the Court allowed Manikakar’s writ petition, declaring that the February arrest was illegal and contrary to the provisions of Section 46 (4) of the Code of Criminal Procedure. The remand allowed by the Special Judge thereafter was also found to be null and void. However, it also held that the CBI may arrest Manikakar, if warranted by following the due legal procedure.
- The Court also imposed a fine of Rs 50, 000 on the CBI to be paid to Manikakar within eight weeks. The CBI was granted liberty to recover the said amount from the errant officers who carried out the arrest after disciplinary proceedings moved against them for the flagrant violation of the statutory provisions.