When Arrest of Ladies Are Often Thought About As Illegal?

Distraught about the matter concerning with women, whether it is a case of harassment or incidents of abuse of women or rape cases, women ought to be shielded from increase in crime against them. Many cases have been reported where women are being abused in police arrest or in police custody.

The increase, in the cases of abuse of modesty of women underneath police custody, has affected the integrity and dignity of women. In this article, author will look if it violates any law or will find out if there is any law related to that, or can say as to which, the arrest of women is often thought about as ineligible just in case it done once sunset and before sunrise. Is there any provision under Criminal Procedure Code which is violative of provisions of Constitution of India (COI) regarding the illegal arrest of women? Here, will conjointly discuss the Supreme Court call in certain cases with respect to illegal arrest.

“I can hear the roar of women’s silence” -Thomas sankara

According to the 135th Law Commission Report based on discussion of Cr.P.C., 1973, it is illegal to arrest the women after sunset and before sunrise. Even if there is a woman constable accompanying the officers, the police than also, cannot arrest the women in restricted duration. If a case arises where the woman has committed a dreadful act or crime, the police ought to take written permission from the magistrate explaining the official why the arrest is important throughout the night.


After the scrutiny of the cases associated with women, amendment was brought in Cr.P.C., 1973. As per section 46(4) of Cr.P.C., ladies can’t be in remission once the sunset. This amendment is done due to sundry of incidents associated with harassment of women by police officers through dark. It was to secure the modesty of women for their welfare and security.

According to the section 46: arrest how made

(1) In making an arrest the police officer or other person making the same shall actually touch or confine the body of the person to be arrested, unless there be a submission to the custody by word or action.

(2) If such person forcibly resists the endeavour to arrest him, or attempts to evade the arrest, such police officer or other person may use all means necessary to effect the arrest.

(3) Nothing in this section gives a right to cause the death of a person who is not accused of an offence punishable with death or with imprisonment for life.

(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 offense is committed or the arrest is to be made”.

Section 46(4) talks about the provision for restricting the arrest for women in wee hours and after sunset.

Section 46(4) tells us that, as per this provision, police can’t arrest a woman after sunset and before sunset. Except in some exceptional circumstances. And, even in those circumstances, before arresting a women police officer has to obtain the prior permission from the Judicial Magistrate of First Class (JMFC) who has the jurisdiction in particular case, by submitting a written report about such exceptional circumstances and arrest can be made in presence of women police.

Therefore, unless a written report is submitted to the JMFC by a woman police officer explaining the exceptional circumstances which require arrest of women in restricted duration, and unless the JMFC grants prior approval for such arrest, a woman cannot be arrested during such restricted time period.

Where the violation of particular provision is done, remedial action can be taken against that police officer who has made such arrest and the arrest can be declared illegal, and an offence can be registered against the arresting police officers for making such illegal arrest.

Looking to decline number of cases against women, this provision has shown a decent impact and secures and shield the women. As, such allegations are relatively terrible wherever some woman is pestered throughout the dark in a police station.

In case of violation, the court will declare it as an ineligible or illegal arrest, where women are arrested in restricted time period and also, under exceptional circumstances, no male police officer can arrest the women unless permission is granted by JMFC and women constable should accompany him.


Exceptional circumstances are often seen ,when a woman has committed a cognizable offence and it becomes important, at that time, to arrested a woman, and in the given situation, no female police officer are available, then a male officer can arrest the women during restricted time period and can afterwards take it to the magistrate having jurisdiction with regard to the case in order to make the arrest valid.


There is alternative legal provision that provides the protection measure within the case of arrest

Section 51 (2): States 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.

Section 53(2): States that Whenever the person of a female is to be examined under this section, the examination shall be made only by, or under the supervision of, a female registered medical practitioner.

Section 160 (1): States that No woman under the age of 15 years shall be required to attend at any place other than the place in which such a female person resides.

Women should be guarded by female constables/police officers. They must be questioned in the presence of policewomen.

All necessary pre-natal and post-natal care should be provided to females who are arrested. Restraints should only be used on pregnant women as a last resort.


Many times, it came to the notice of the court that the police officer has profaned this provision. In that case, courts can bring actions against the police officer who has violated the provision.

There have been cases where court said it illegal arrest of women. In Kavita Panikkar v. CBI, 2018 SCC Online Bom 1095,, a Writ Petition was filed seeking a writ of Mandamus, the Division Bench of Bombay High Court, comprising of S.J. Katha Walla and Bharti H. Dangre, JJ., decided that non-adherence to the provisions of Section 46(4) of the Criminal Procedure Code would absolutely amount to illegal arrest.

In this case the petitioner was the suspect in PNB scam and was drawn up the investigation by CBI.  The petitioner was in remission at eight p.m. i.e., once the sunset. Petitioner claims that she had conjointly, tried to bring the eye of special decide towards the bootleg arrest. She conjointly discerned that her arrest is unlawful, because it is violating the Section 46(4) of the Cr.P.C.. Hence, her arrest is unlawful. And the fine of 50,000 was imposed on the police officer for violating the provision and arrest was considered as illegal.

The discussion, regarding the insertion of section 46(4), considered whether the provision to safeguard the dignity of women and protect them from harassment and police abuse, is violative of any article of Constitution of India.


According to the various legal scholars, this provision is violative of Article 21 of Constitution of India.

Article 21 states, “Protection of life and personal liberty- No person shall be deprived of his life and personal liberty except according to the procedure established by law.” Article 21 includes right to live with dignity for all persons regardless of their sexes. So, why we’ve got provision just for women? All person has this right. Men also, have the right to live his life with dignity which incorporates security.

Their arrests can be control in daytime, since there are cases of abuse with them further.
Also, in some or alternative approach we will say that this specific section is offensive of article 14 of Constitution of India, that states, “The state shall not deny to any individual equality before law or the equal protection of laws among the territory of India.”
Everyone ought to be treated equally. Everyone, regardless of gender, is equal before law. we’ve got provision controlling the arrest of girls and thus, there should be a similar provision for protection of men. We all know that protection of girls is a lot of vital as, on daily basis ladies are sexually annoyed. Pertaining to this it can be said that, one in every of the ways that to cut back the crime against the ladies. Women are more vulnerable when compared with men so, this provision facilitated the protection of women.

Discussions taken place in parliament on the Criminal Procedure Code (Amendment) Bill, 2005. Many parliamentarians, like Shri Varakla Radhakrishnan, have supported the provision of arrest of women after sunset and before sunrise.

Women were in agony before the modification. They’re still stricken by abuse, molestation, harassment and rape by the law enforcement officials albeit there’s provision in this regard in Cr.P.C.

Every law is enacted with intention to curtail some crime against women or with legislative intent. Therefore, the rationale behind enactment of this provision was to safeguard the modesty of girls and to protect from allegedly unnecessary harassments by the police officers.

So, even once the offences that have been committed by the ladies, assembly has created the laws considering, her modesty shall lean overriding importance and can’t be compromised.

The Supreme Court of India after looking to incidents of abuse of modesty of women, harassment of women and other offences committed by policer officer while arrest, has notified the Government to pass effective laws and to uplift the Principles of Equality towards safeguarding the arrest of women. This legal provision makes mandatory that women shall be handled by female police officers, and no arrest can be made after sunset and before sunrise, pregnant women shall be provided with comfortable needs during their arrests.


Sheela Barse vs. State of Maharashtra 

The Supreme Court of India in the case of Sheela Barse v. the State of Maharashtra has held that: It becomes the duty of the police officer making the arrest to carefully observe that arrested women should be excluded with arrested males and kept in female lock-up in the police station. However, if cases arise no separate lock-up available, women should be kept in a separate room. There are various other cases in which the section 46(4) are also, seen with the other various section. So, as to preserve the modesty of women and to protect the women from police abuse and from harassment.


There are various other legal rights of women, which they are not aware of, even in the cases of arrest where were certain incidents, where women were arrested by police in restricted time period and they were not aware of their rights and then the court declared the arrest as illegal.

As there have been the growing cases where the modesty of women has been abused during the police arrest. Now, there has been no such cases are reported and called as illegal arrest also, the condition and modesty of women is being preserved.

This amendment has resulted in the positive outcome and can be called one more step so to prevent the harassment of women in police arrest.

This article is authored by Deepanshi Dwivedi, 1st year BA LLB(Hons.). student at Dharmashastra National Law University, Jabalpur.

Also Read – Is Using Ladies Washroom By Men A Criminal Offence in India

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