Police is an integral part of our society and is entrusted with the role of maintaining law and order while also being a vital cog in the justice delivery system being the premier investigative agency in the country. They are often criticized for going beyond their powers and duties and indulging in misuse of their powers which fractures the trust people have bestowed upon them. On such misuse of power that the police frequently indulge in is illegally arresting a person without following the mandate of law. The problem of illegal arrest and detention came into the limelight in the landmark case of DK Basu vs. State of West Bengal[1],in which the Supreme Court appalled by the apathy with which the Police were using their powers of arrest and detention were forced to lay down guidelines related to arrest and detention after many instances of illegal arrest, detention and custodial death were brought to the Supreme Court’s notice.

The Supreme Court in D.K Basu’s case observed that “…The right of preventive detention of individuals in the interest of security of the State in various situations prescribed under different statures has been upheld by the Courts. The right to interrogate the culprits or arrestees in the interest of the nation, must take precedence over an individual’s right to personal liberty. The latin maxim salus populi est supreme lex (the safety of the people is the supreme law) and salus republicae est suprema lex (safety of the state is the supreme law) co-exist and are not only important and relevant but lie at the heart of the doctrine that the welfare of an individual must yield to that of the community. The action of the State, however must be “right, just and fair”. Using any form of torture for extracting any kind of information would neither be ‘right nor just nor fair’ and, therefore, would be impermissible, being offensive to Article 21…”[2]

The subject of inquiry herein is the tendency of the Police to misuse its’ powers of arrest and detention relating to women despite there being separate safeguards in the Code of Criminal Procedure, 1973 (in short ‘CrPC) and specific guidelines issued by the Supreme Court in various cases.


The Legislature in its’ wisdom provided for a statutory safeguard within the CrPC itself in Section 46 through an amendment in 2005. Section 46(4) reads as under:

4.Save in exceptional circumstances, no women 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”.[3]

Despite this statutory obligation, there have been many instances where the police have not followed this mandate resulting in an intervention by the Courts. The Hon’ble Bombay High Court in the recent matter of Kavita Manikikar vs. C.B.I.[4] has imposed a fine of Rs. 50,000 on the Central Bureau of Investigation (CBI) for an illegal arrest made by its officer in the PNB fraud case. The petitioner had alleged that she was arrested in violation of Section 46 (4) of the Code of Criminal Procedure[5]. She had been arrested in relation to the case after the CBI alleged that she was the authorized signatory of the three firms owned by Mr. Nirav Modi. She was, however, arrested at around 8 pm, in violation of the provision. Therefore, the Court slapped a fine of Rs. 50,000 on CBI in the said subject matter.

In the case of Mrs. Bharati S. Khandhar vs. Shr. Maruti Govind Jadhav[6], the Hon’ble Bombay High Court directed the Commissioner of Police, Mumbai to hold enquiry against the concerned Police officers for illegal detention and arrest of the petitioner from 5:30pm which was after sunset. The director General of Police, State of Maharashtra and the Commissioner of Police, Mumbai were directed to issue instructions within a period of two weeks to all the concerned to follow the mandate of sub-section (4) of Section 46 of the Code of Criminal Procedure, 1973, if they want to arrest any woman accused of any offence after sunset and before sunrise.

The Hon’ble Bombay High Court in the case of Jaywant Balkrishna Sail vs State Of Maharashtra[7]observed that the insertion of Section 46 (4) by virtue of Amendment Act 25 of 2005puts a bar on the police not to arrest any woman after sunset.

Section 60-A[8] of the CrPC is another safeguard incorporated within the CrPC itself, it reads as under:

“60A. Arrest to be made strictly according to the Code. – No arrest shall be made except in accordance with the provisions of this Code or any other law for the time being force providing for arrest.”

In the landmark case of Sheela Barse vs State Of Maharashtra[9], the Supreme Court laid down the following guidelines and instructions to the concerned authorities in relation to the arrest and detention of females:-

  1. Separate lock ups should be earmarked or females and female prisoners/under trials should not be detained along with their male counterparts.
  2. Interrogation of females should be carried out only in the presence of female police officers/constables.

The CrPC has provided safeguards for females not only after the stage when a female is arrested but even before when a female is to be interrogated. Section 160(1) of the CrPC reads as under:

160. Police Officer’s power to require attendance of witnesses.

(1) Any police officer making an investigation under this Chapter may, by order in writing, require the attendance before himself of any person being within the limits of his own or any adjoining station who, from the information given or otherwise, appears to be acquainted with the facts and circumstances of the case; and such person shall attend as so required:

Provided that no male person [“under the age of fifteen years or above the age of sixty-five years or a woman or a mentally or physically disabled person”] shall be required to attend at any place other than the place in which such male person or woman resides.”[10]

Section 51(2) of the CrPC is another safeguard and reads as under:

  1. Search of Arrested Persons:

“2. Whenever it is necessary to cause a female to be searched, the search shall be made by another female with strict regard to decency.”[11]

The Hon’ble Supreme Court in the case of Dilip & Anr. Vs. State of M.P[12], had taken in account the provisions of Section 51(2) of the Code of Criminal Procedure, 1973 which lays down that whenever it is necessary to cause a female to be searched, the search shall be made by another female with strict regard to decency. In State of Punjab vs. Baldev Singh[13], the Court also stated that the document prepared by the investigating officer at the spot must invariably disclose that the search was conducted in the aforesaid manner and the name of the female official who carried out the personal search of the female concerned should also be disclosed.


Even though the intention of the Legislature in providing for various safeguards to protect the liberty and dignity of women before and after they are arrested, the lackadaisical approach followed by the Police itself renders the implementation of these safeguards nugatory. The only logical course would be to provide for a deterrent so that the erring officials would follow the mandate of law. Various Courts have followed this path and either ordered a Departmental Enquiry or imposed hefty fines on the erring officials. The Bombay High Court[14] recently slapped a fine of Rs. 50,000 on CBI for arresting a woman in contravention with the provisions of the Section 46 (4) of the CrPC and the other related provisions. This laudable approach shown by the Court is one that needs to be now recognised statutorily to give true meaning and effect to the mandate of law.

[1](1997) 1 SCC 416.


[3]Code of Criminal procedure, 1973, Section 46 (4).

[4] W.P (Crl) 1142/2018.

[5]Apoorva Mandhani, Bombay HC Imposes 50,000 fine on CBI For Arrest of Women After Sunset (May 20, 2018, 10:16 am)

[6] 2012 SCC OnLineBom 1901.

[7] 2012 Indlaw MUM 344.

[8]Code of Criminal Procedure, 1973, Section 60-A.

[9] 1983 AIR 378.

[10]Code of Criminal Procedure, 1973, Section 160.

[11]Code of Criminal Procedure, 1973, Section 51(2).

[12] 2006 Indlaw SC 857.

[13] (1999) 6 SCC 172

[14] W.P (Crl) 1142/2018.

Drafted By-

Rohit Gaur & Vivek Punia, Advocates, Prosoll law Inc.

(Drafted with the help of Ms. Divya Priyank, Law Student, NMIMS, Kirit P. Mehta School of Law, Mumbai).


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