Section 46 of Code of Criminal Procedure, 1973 provides for the mode of arrest. Arrest consists of actual seizure or touching of a person's body with a view to his detention. The pronouncing of the words of arrest is not an arrest, unless a person sought to be arrested submits to the process and goes with the Arresting Officer.

The provisions of sub-section (4) of Section 46 of the Code of Criminal Procedure, 1973 mandates that, if the Police want to arrest woman after sunset, they have to seek prior permission of the Magistrate, and arrest should be made by a Lady Police Officer.

The Legislature in its wisdom added sub-section (4) to Section 46 of the Code by Section 6 of the Code Of Criminal Procedure (Amendment) Act, 2005 Act 25 of 2005 (w. e. f. 23,06.2006), to prohibit arrest of a woman after sunset and before sunrise except in unavoidable circumstances.

The provisions of sub-section (4) of Section 46 of the Code reads thus:
[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].

From bare perusal of the afore-stated provisions of sub-section (4) of Section 46 of the Code, it is crystal clear that the said provision mandates that no woman shall be arrested after sunset and before sunrise save in exceptional circumstances, without the prior permission of the Judicial Magistrate First Class, in whose local jurisdiction the offence is committed or the arrest is to be made.

Section 46 (4) of Code of Criminal Procedure, 1973 enumerates that a woman shall not be arrested after sunset and before sunrise. However this rule is subject to exceptions, as that provision starts with the phrase “save in exceptional circumstances”, which means the rule is generally applicable but in case any exceptional case arises where immediate arrest is imperative, then this rule shall not be applicable. Exceptional circumstance is not defined in the Code, hence that is subjective and no straitjacket formula is there to ascertain if exceptional circumstances exist or not.

Every law is enacted with a legislative intent. Likewise the reason behind enacting this law is to safeguard the modesty of women and to protect them from alleged unnecessary harassments by the police. Even if a woman has to be arrested under exceptional circumstances, such arrest shall be made by woman Police Officer and prior to such arrest permission needs to be obtained from local Judicial Magistrate First Class. So basically the legislatures have ensured that regardless of the offence which is alleged to have been committed by a woman, her modesty shall be given paramount importance and shall not be compromised.

Therefore, the requirement of the provisions of sub-section (4) of Section 46 of the said Code is two-fold. If the Police Officer wants to arrest the woman after sunset and before sunrise, there must exist exceptional circumstances for such arrest.

In cases wherein, such exceptional circumstances do exist, a Lady Police Officer shall make a written report and obtain prior permission of the Judicial Magistrate, First Class in whose jurisdiction the offence is committed or the arrest is to be made.

Meaning Of Arrest

Arrest consists in the seizure or touching of a person's body with a view to his restraint, words may, however, amount to an arrest if, in the circumstances of the case, they are calculated to bring and do bring to a person's notice that he is under compulsion and he thereafter submits to the compulsion.

The aforesaid definition is similar in spirit to what is incorporated in Section 46 of the Code of the Criminal Procedure, 1973.

The concept was expanded by Supreme Court in State of Utter Pardesh Vs Deoman, AIR 1960 SC 1125, wherein, it was inter alia observed as follows:

Section 46, Cr. P. C does not contemplate any formality before a person can be said to be taken in custody. Submission to the custody by words of mouth or action by a person is sufficient. A person directly giving a Police Officer by word of mouth information, which may be used as evidence against him may be deemed to have submitted himself to the custody of the Police Officer.

The meaning of the above is that when a person, who is not in custody, approaches the Police Officer and provides information, which leads to the discovery of a fact, which could be used against him, it would be deemed that he had surrendered to the authority of the investigating agency.

Constitutional Protection

Clause (1) of Article 22 of the Constitution of India which is one of the fundamental rights in Part III, declares that:
“No person who is arrested shall be detained in custody without having informed, as soon as maybe, on the grounds for such arrest nor shall he be denied the right to consult and to be defended by a legal practitioner of his choice.”

Clause (2) of Article 22 of the Constitution of India says that every person arrested and detained in custody shall be produced before the nearest Magistrate within a period of 24 hours of such arrest excluding of course the time necessary for the journey from the place of arrest to the Court of Magistrate.

The clause further declares that no such person shall be detained in custody beyond said period without the authority of a Magistrate. Clause (3) of Article 22 of the Constitution of India, however, provides that clauses (1) and (2) shall not apply to an enemy-alien or to a person who has been arrested under any law providing for Preventive Detention.

The right to personal liberty is a basic human right. Article 21 of Constitution of India provides that no person shall be deprived of his/her life or personal liberty except according to the procedure established by law. Right to life means and includes right to live with human dignity.

To provide practical shape to the concept of human dignity Article 22 affronts protection against arrest and detention in certain cases. The term 'life' (as used in Article 21 of the Constitution of India) means something more than mere animal existence and inhibition against its deprivation extends to all those limits and faculties by which life is enjoyed.

Scope & Ambit of Section 46 of Code of Criminal Procedure, 1973

Section 46 of Code of Criminal Procedure, 1973 prescribes the manner of effecting arrest.

This Section 46 contemplates three modes of arrest viz:

1. Submissions of the arrestee to custody by word or action.
2. Touching of the body of the person to be arrested; and
3. Confining the body of such person. In short, arrest is a formal mode of taking a person into police custody.

The provisions of Section 46 of the Code dealing with the mode of arrest is not an empty formality.

A Full Bench of Madras High Court in Roshan Beevi Vs Joint Secretary, Government of Tamil Naidu, 1984 Cri. L. J 134 held that there cannot be a second opinion that the method and the execution of arrest of a person intended to be arrested should be performed only in the manner prescribed in the statute and the other methods of performance are forbidden, otherwise the whole provision of Section 46 of Code would be nugatory and functionless.

If the method of arrest is not performed in the manner known to law and as prescribed under Section 46 of Criminal Procedure Code, it will render the section non-existence or otiose.

It was further held, in the said Full Bench decision that:

In order to have the action of the arrester to be in conformity with the legal and constitutional provisions, it must be an arrest properly and lawfully made in terms of the specified provisions of the Criminal Procedure Code.

If it is to be held that the actual seizure or touching of a person's body with a view to his arrest, but that the mere utterance of a guttural word or sound, a gesture of the index finger or hand, the sway of the hand or even the flicker of any eye are enough to convey the meaning to the person concerned that he has lost his liberty under arrest, then it will not only be in conflict with the modality of arrest prescribed in Section 46 of the Code of Criminal Procedure but will also lead to a startling anomaly and cause serious consequences.

Even in the case of a Police Officer or other Officers empowered to arrest, the mere utterance of words or gestures or flickering of eyes, etc would never amount to an arrest, unless the person concerned submits to the custody of the arrester.

Arrest Of Women

The Code of Criminal Procedure (Amendment Act) 2005 has added a new sub-section (4) in Section 46 of Code, providing special procedure for arrest of women with the following requirements:

1. The arrest shall be made before sunset and after sunrise.
2. The arrest shall be made only by a Woman Police Officer.
3. The arresting Police Officer shall obtain permission for such arrest from the Judicial Magistrate First Class (not Executive Magistrate) within whose local jurisdiction
   (i) offence is committed o
   (ii) the arrest is to be made.

However, the arrest of a woman can be effected without making compliance of aforesaid three requirements if there exist exceptional circumstances for such arrest.

Upon careful perusal of provision of sub-section (4) of Section 46 of the Code of Criminal Procedure, 1973 it is abundantly clear that, save in exceptional circumstances, no woman shall be arrested after sunset and before sunrise and where such exceptional circumstances existed, a Lady Police Officer, by making a written report, obtain prior permission of the Judicial Magistrate First Class.

Therefore, the requirement of the provisions of sub-section (4) of Section 46 of the Code of Criminal Procedure is two-fold.

The Police Officers acting in their official capacity/duties cannot frustrate the legislative intent, which grants protection to woman by virtue of insertion of sub-section (4) to Section 46 of the Code, which in clear words prohibits the Police Officers to effect arrest except there are unavoidable circumstance.

Even if unavoidable circumstance exist, only with a prior permission of the Judicial Magistrate, First Class, a woman can be arrested after sunset and before sunrise.

It is true that, in exceptional circumstances, in an appropriate case, the arrest of women after sunset and before sunrise may be necessary.

However, unless the procedure laid down under sub-section (4) of Section 46 of the Code is followed, no woman can be arrested at the whims and wills of the Police Officers.

Following are The Guidelines laid down by Supreme Court in Sheela Barse Vs State Of Maharashtra, AIR 1983 SC 378, 1983 SCR (2) 337 to be followed by Cops While Arresting Women:

1. First, the Police Officer is duty bond while making arrest to see that arrested females are segregated from men and kept in female lock-up in the Police Station. He/she must also make sure that if there is no separate lockup; women are kept in a separate room. Also, Women Police Officers should be associated where females are being arrested.
    
2. Second, the cops arresting women must avoid the time between sunset and sunrise; this guideline was issued after several instances of sexual and physical exploitation in Police Stations by the cops themselves.
    
3. Third, according to the guideline women and girls should not be called to the Police Station or to any place other than their place of residence for questioning. Also, while the inquiry is being done, the time must be chosen the arrestee is not embarrassed.
    
4. Fourth, in cases where medical examination of the arrestee or any other women has to be done, it should be carried out only under the supervision of female medical practitioners. Also, arrestee should be given all necessary pre-natal and post-natal care.
    
5. Fifth, the cops must avoid arresting pregnant women and choose the option only if there is no other option as it’s not just the matter of the arrested woman but also the safety of the foetus which could get damaged in hustle-bustle. Also, labouring women must never be restrained.

Least but not the last, girls and women should be guarded by female constables/police officers and if any questioning is done, it must done in presence of female cops.

The Supreme Court in Joginder Kumar Vs. State,[1994 (4) SCC, 260] considered the dynamics of misuse of police power of arrest and opined:
No arrest can be made because it is lawful for the police officer to do so. The existence of the power of arrest is one thing. The justification for the exercise of it is quite another...No. arrest should be made without a reasonable satisfaction reached after some investigation about the genuineness and bonafides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest. Denying person his liberty is a serious matter.

Supreme Court in the afore-mentioned Judgment, voiced its concern regarding complaints of violations of human rights during and after arrest. It said:
The horizon of human rights is expanding. at the same time, the crime rate is also increasing, Of late, this Court has been receiving complaints about violations of human rights because of indiscriminate arrests.

How are we to strike a balance between the two?
.......A realistic approach should be made in this direction. The law of arrest is one of balancing individual rights, liberties and privileges, on the one hand, and individual duties, obligations weighing and balancing the rights, liberties and privileges of the single individual and those of individuals collectively; of simply deciding what is wanted and where to put the weight and the emphasis; of deciding with comes first-the criminal or society, the law violator or the abider.....

In State of Maharshtra Vs. Christian Community Welfare Council of India & Anr, (2003) 8 SCC 546, the Supreme Court appreciated and agreed with the object behind prohibiting arrest of a lady after sunset and before sunrise but was of the opinion that a strict compliance with such restrictions, in a given circumstance, could cause practical difficulties to the investigating agency and might even give room for evading the process of law by unscrupulous accused.

The Supreme Court went on to say that it was necessary to protect the female sought to be arrested by the police from police misdeeds but it may not be always possible and practical to have the presence of a lady constable when the necessity for such arrest arises.

Of course, such observations of the Court were prior to the amendments made in Section 46 of the Code of Criminal Procedure. However, what cannot be lost sight of is the practical and genuine difficulties in enforcing and effecting the arrest of an accused of a case.

The Bombay High Court in Bharati S. Khandhar v. Maruti Govind Jadhav, decided on 21 Dec 2012 held as under:
18...............The Respondents-Police Officers are bound by the provision of the Code and they cannot be heard to say that, they could have arrested the Petitioner in breach of provisions of the Code in general and sub-section (4) of Section 46 of the Code in particular, since more than 200 bailable/non-bailable warrants are issued against the Petitioner.

The Police Officers acting in their official capacity/duties cannot frustrate the legislative intent, which grants protection to woman by virtue of insertion of sub-section (4) to Section 46 of the Code, which in clear words prohibits the Police Officers to effect arrest except there are unavoidable circumstance. Even if unavoidable circumstance exist, only with a prior permission of the Judicial Magistrate, First Class, a woman can be arrested after sunset and before sunrise.

It is true that, in exceptional circumstances, in an appropriate case, the arrest of women after sunset and before sunrise may be necessary. However, unless the procedure laid down under sub-section (4) of Section 46 of the Code is followed, no woman can be arrested at the whims and wills of the Police Officers.

Conclusion
The Constitution of India has embodied within itself grounds for gender equality. The Fundamental Rights, Fundamental Duties and Directive Principles together work towards shaping policies and putting safeguards not just for women empowerment but also provides protection against invasion of the rights.

The father of the nation says something similar,
“To call a woman the weaker sex is a libel; it is man’s injustice to woman. If by strength is meant brute strength, then, indeed, is woman less brute than man. If by strength is meant moral power, then the woman is immeasurably man’s superior. Has she not greater intuition, is she not more self-sacrificing, has she not greater powers of endurance, has she not greater courage? Without her, a man could not be. If nonviolence is the law of our being, the future is with a woman. Who can make a more effective appeal to the heart than woman?”- Mahatma Gandhi

The criminal justice process has to deal with the citizen at several stages. Arrest is the first stage. At this stage the freedom of the citizen is restrained to safeguard public interest. Different purposes are served by arresting a person.

Sometimes, it saves him/her from retaliatory assault from the public. Sometimes, he/she is prevented from committing further crimes. And surely arrest helps him/her to be presented before the appropriate court to stand trial. It is to serve the third purpose that usually a suspect is arrested by the police.

Even during an arrest where the accused is a Woman, her safety is a priority for fair trial of the accused and to ensure that, an amendment in 2005 to the Criminal Procedure Code, 1973 made a very significant point related to the safety of woman. A woman cannot be arrested after sunset and before sunrise, except in an exceptional case on the orders of a Judicial Magistrate First Class.

Written By: Damini Singh Chauhan, Semester 9th, The Law School, University of Jammu.
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