Arrest of Woman Post-Sunset Without Prior Judicial Permission Illegal: Bombay High Court

Deprivation of Liberty Without Strict Adherence to Procedure Violates Article 21: Bombay High Court declared the arrest of Payal Hariom Verma by the Tembhurni Police Station as illegal under Section 46(4) of the Code of Criminal Procedure, 1973 (CrPC). The petitioner had been arrested post-sunset without obtaining prior written permission from a Magistrate, violating procedural safeguards specifically designed to protect the rights of women during arrests.
The Court, while declaring the arrest illegal, directed the petitioner’s release on bail but allowed the investigating agency to rearrest her if required, provided proper legal procedures were followed.
The Court’s analysis centered around the procedural requirements outlined in Section 46(4) of the CrPC, which states:
“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.”
In the present case, the petitioner was arrested at 12:37 a.m. on September 11, 2024, without prior judicial permission. The investigating agency contended that a written request was submitted to the Magistrate at 11:00 p.m. on September 10, 2024, and the formal arrest was effected only after permission was granted. However, the Court rejected this argument, stating that the petitioner had already been detained earlier in the evening at 6:40 p.m., which was after sunset. The Court held that the procedural safeguards under Section 46(4) had not been complied with, rendering the arrest illegal.
The Court emphasized the importance of strict adherence to procedural safeguards under Section 60A of the CrPC, which mandates that arrests must be made strictly in accordance with the provisions of the Code. Justice Kotwal observed, “The Code of Criminal Procedure outlines the manner and extent to which a person can be denuded of their liberty. Any deviation from the prescribed procedure renders the arrest null and void.”
Referring to the Supreme Court’s decision in DK Basu v. State of West Bengal, (1997) 1 SCC 416, the Court reiterated that procedural safeguards are essential to protect an individual’s “indefeasible right to life and liberty” under Article 21 of the Constitution. The judgment underscored that the State must ensure these safeguards are followed rigorously, especially in cases involving the arrest of women.
The Court found that the investigating agency had failed to justify its failure to seek prior permission from the Magistrate before the petitioner’s arrest. It noted that the police were well aware of the petitioner’s pending release on bail in a related case and had sufficient time to obtain judicial permission. Justice Kotwal stated, “The investigating agency was clearly aware of the petitioner’s release and had ample opportunity to seek prior permission. Their failure to do so constitutes a malafide exercise of power.”
The Court heavily relied on its earlier judgment in Kavita Manikikar v. CBI, 2018 SCC OnLine Bom 295, where it had declared the arrest of a woman at 10:00 p.m. as illegal due to the violation of Section 46(4). In that case, the Court had observed:
“Any deviation from the prescribed procedure in the matter of arrest cannot be countenanced and is liable to be declared illegal. The precious guarantee of ‘Life and Liberty’ under Article 21 of the Constitution cannot be denied without following the procedure established by law.”
Applying the same principles, the Court in the present case held that the petitioner’s arrest was invalid as the procedural safeguards under Section 46(4) had not been adhered to.
While declaring the arrest illegal, the Court acknowledged the seriousness of the allegations against the petitioner, which involved charges of fraud and cheating under Sections 420, 467, 468, and 471 of the IPC. The Court noted that the petitioner was accused of being part of a fraudulent scheme operated by M/s. Srimma Farm Animal Bazaar Private Limited, which allegedly duped multiple investors.
The Court stated, “Considering the seriousness of the allegations and the petitioner’s role in the offense, her availability for investigation and trial is crucial.”
To balance the petitioner’s rights with the needs of the investigation, the Court granted her bail on the condition of executing a personal bond of ₹30,000 with one or two sureties. The Court also permitted the investigating agency to rearrest her, provided they followed proper legal procedures.
This judgment reaffirms the importance of procedural safeguards in ensuring that the State does not infringe upon the fundamental rights of individuals, particularly women, during criminal investigations. By holding the investigating agency accountable for procedural lapses, the Court sent a strong message that “liberty cannot be compromised without strict compliance with the law.”
The Bombay High Court declared the arrest of Payal Hariom Verma by the Tembhurni Police Station as illegal due to non-compliance with Section 46(4) of the CrPC. It emphasized that procedural safeguards, especially those protecting women, must be strictly adhered to. While granting bail to the petitioner, the Court allowed the investigating agency to continue its investigation and rearrest her if required, provided they followed due legal process.
Date of Decision: January 9, 2025