MADURAI: The Madurai Bench of the Madras High Court held that Section 46(4) of the CrPC, which prohibits the arrest of women before sunrise and after sunset hours without prior permission from the judicial magistrate, is directory and not mandatory. The court also directed the police department to issue further guidelines clarifying what would constitute exceptional situations under the section.
A division bench of Justices GR Swaminathan and M Jothiraman further said the state legislature also can consider bringing a local amendment to Section 43 of BNSS on the lines suggested by the Law Commission of India. It would not be in the interest of maintaining law and order if a police officer is expected to write to the judicial magistrate and effect arrest only after obtaining the prior permission. Such a stringent condition would disable police officers from effectively discharging their public duties, the court stated. While failure to adhere to the statutory requirement may not lead to the arrest being declared illegal, the officer concerned may have to offer an explanation for the inability to comply with the procedure. Even though Section 46(4) of CrPC is beneficial to ensure the safety of women, the court is unable to hold that it is mandatory.
