Legal Provisions for Nighttime Arrests of Women in India: A Comprehensive Overview

Legal Provisions for the Nighttime Arrest of Women in India

This article explores the legal provision concerning the arrest of women after sunset and before sunrise in India. The core question addressed is whether this provision is mandatory (requiring strict adherence) or directory (serving as a guideline).

Key Points Explained:

• The Provision: Section 46(4) of the Code of Criminal Procedure (CrPC), now also addressed in Section 43(5) of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, generally restricts the arrest of women during nighttime hours.
• Madras High Court Ruling: The Madurai Bench of the Madras High Court in Deepa versus S. Vijayalakshmi and Others ruled that this provision is "directory," not "mandatory."
• Safeguards and Exceptions: There are safeguards in place, such as the requirement for prior permission from a magistrate in most cases of nighttime arrest, and the desirability of a woman police officer being present. Exceptions exist for "exceptional circumstances," although these are not precisely defined.
• Law Commission Recommendations: The 135th Law Commission Report of India on Women in Custody (1989) recommended that, ordinarily, women should not be arrested at night, emphasizing the need for safeguards.
• Supreme Court's View: The Supreme Court has acknowledged the practical difficulties in rigidly enforcing the nighttime arrest restriction.
• Practical Implications: Even though the provision is directory, police officers may still be required to explain why they made a nighttime arrest. The courts emphasize that the provision cannot be disregarded.

In essence, the law aims to balance women's safety with the need for effective law enforcement, recognizing that strict adherence to a nighttime arrest ban could hinder investigations in some cases.