The Madras HC in the case of S Salma v The State, has directed the Tamil Nadu Government to form universal guidelines to ensure compliance with Section 46 (4) of the code of Criminal Procedure (CrPC) within 8 weeks. “I believe that it would be, in the fitness of things, for the authorities to apply their mind to this question and frame appropriate guidelines to ensure compliance with the mandates under Section 46(4) even in exceptional, urgent and emergent situations. Let suitable guidelines be issued in this regard. Guidelines, as directed above, be framed and placed before the Court within eight (8) weeks from the date of receipt of a copy of this order” stated the order.
The petition was filed by a woman journalist seeking 25 lakh rupees as compensation. She was arrested on the compliment filed by an AIADMK member alleging that she was distributing pamphlets against Chief Minister J Jayalalithaa. She was arrested after sunset, although a woman constable was present but prior permission from the magistrate was not obtained. The police contended that her arrest was necessary for containing the law and order.
Justice Anita Sumanth further observed that the conditions are two-fold:
(i) necessitating the presence of a woman police officer
(ii) obtaining prior permission from a Judicial Magistrate by submission of a written report.
There is no elbow room provided in this regard and on a plain and simple reading of Section 46(4), it was incumbent upon the authorities to have submitted a written report to the Judicial Magistrate concerned and obtained prior permission for the arrest of the petitioner, The court refused to grant any compensation to the woman.
Section 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.