Bombay High Court: In a Writ Petition seeking a writ of Mandamus, the Division Bench comprising of S.J. Kathawalla 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.
The petitioner was one of the accused in the most talked about case “PNB Scam”, it has been contended by the petitioner that she was called for an investigation in the said case by the respondent-CBI for which she duly cooperated with the investigation agency. Petitioner was arrested at about 8 p.m. after which she was produced before of the Special Judge. Petitioner claims that she had invited the attention of the Special Judge towards her case of illegal arrest wherein she pointed out that her arrest violated the ambit of Section 46(4) of the said Act, though the Special Judge ignored the fact of illegal arrest and proceeded by remanding the petitioner to the custody of the respondent-CBI for a period of 14 days.
Learned counsel for the petitioner had drawn the attention of the Court by giving due explanation of the violation of Section 46(4) of the Criminal Procedure Code in Chapter V that the arrest was absolutely illegal in terms that it has been clearly explained in Section 46 for “Arrest how made”. The said provision is salutary one which provides safeguard against the arrest of a woman after sunset and before sunrise and as per the learned counsel, the safeguards have to be strictly adhered to.
Therefore, the Hon’ble High Court on recording the contentions of the petitioner and noting the facts and circumstances of the case, briefed about the point that the precious guarantee of ‘Life and Liberty’ enshrined in Article 21 of the Constitution of India cannot be denied to a convict or accused on a trial and it is an obligation upon State to ensure that there is no infringement of the right of the citizen.
Further, the Court concluded by stating that any deviation from the prescribed procedure in the manner of arrest can therefore, be not countenanced and is liable to be declared as illegal. Allowing the writ petition , it was held that the officials who were responsible for the violation of the Section 46(4) of the Criminal Procedure Code, for arresting the accused after sunset, will be liable for disciplinary proceedings. [Kavita Manikikar v. CBI, 2018 SCC OnLine Bom 1095, dated 10-05-2018]