1. Rule. Rule made returnable with the consent of the parties and heard finally.
2. This application takes an exception to the order dated 17.03.2019 passed by the learned Judicial Magistrate, 4th Court, Bhiwandi, Thane thereby
granting permission to arrest the present applicant.
3. It is the case of the applicant that, pursuant to a missing complaint, a F.I.R. bearing C.R. No. 119 of 2019 was registered by one Mrs. Poonam
Nityanand Pandey, who is original complainant, under sections 302 and 201 of the Indian Penal Code (for short ""I.P.C."") for the murder of her
husband Mr.Nityanand Sheetalprasad Pandey on 17. 03.2019. The information was received by the respondent's office at 20:05 on 17.03.2019. The
FIR was registered at 20:33 p.m. on the night of 17.03.2019 against unknown persons. Thereafter, after alleged investigation, the respondent's officers
came to the conclusion that the present applicant has committed the murder of the deceased and was shown as an accused merely on the basis of
suspicion, sans any legal and/or material evidence as against her.
4. It is further case of the applicant that, immediately thereafter, the respondent's officers preferred a groundless application on 17.03.2019 itself
before the learned Magistrate seeking permission to arrest the present applicant after sunset without citing any exceptional circumstances. The
learned Magistrate granted the said permission to arrest the applicant vide order dated 17.03.2019, which reads as under :
Read application. I.O. submitted that offence is serious in nature. Arrest is necessary after sunset. Considering reason, permission is granted to
arrest"".
5. Being aggrieved by the said order, the present applicant has filed the present criminal application.
6. The learned Counsel appearing for the applicant submitted that a perusal of the said impugned order will reveal that no exceptional circumstances
were relied upon by the learned Magistrate to carve out an exception granting permission to arrest the applicant after sunset. Therefore, the impugned
order on the basis of which the applicant was arrested is illegal, erroneous and bad in law, and deserves to be set aside. He further submitted that
immediately thereafter, acting upon the impugned order, the respondent's officers apprehended and arrested the applicant. The applicant underwent
police custody for a period of 14 days after which she was remanded to judicial custody. The applicant is presently lodged and detained in Kalyan Jail.
7. He further submitted that the impugned order was passed in contravention to sub-section (4) of section 46 of the Code of Criminal Procedure (for
short ""the Cr.P.C.""). The arrest of the applicant is itself void, illegal and bad in law. Therefore, the applicant is challenging the impugned order, upon
passing of which, she was arrested on the following grounds, which are urged without prejudice to each other.
8. Firstly, the order passed by the learned Magistrate is demonstrably perverse, palpably erroneous and contrary to the law and facts on record and,
therefore, the same deserved to be quashed and set aside. Secondly, the learned Magistrate has passed the impugned order mechanically without an
application of his mind. The said order is illegal and improper which deserves to be set aside, as the said order is malafide and erroneous. Thirdly,
section 46 of the Cr.P.C. which prescribes the procedure for how an arrest has to be made in sub section 4 categorically reads as follows:
Save in exceptional circumstances, no woman shall be arrested after sunset and before sunrise, and where such exceptional circumstances exist, the
woman police officers shall, by making a written report, obtain the prior permission of the Judicial Magistrate of first class within whose local
jurisdiction the offence is committed or the arrest is to be made"".
This salutary provision was added vide Amendment Act 2005. It is further submitted that the impugned order is in gross violation of sub-section (4) of
section 46 of the Cr.P.C. and being bad in law and deserves to be set aside. Fourthly, a perusal of the application preferred by the respondent's
officers makes it explicitly clear that they have not cited any ""exceptional reason/ circumstances"" to fall under the proviso in sub-section (4) of section
46 of the Cr.P.C. The officers have sought permission to arrest the applicant on the sole ground of the alleged offence being heinous allegedly
necessitating the custody of the applicant. Apart from this, no exceptional circumstances have been relied upon by the officers to attract the proviso in
sub-section (4) of section 46 of the Cr.P.C. Fifthly, the learned Magistrate failed to appreciate the aforementioned grounds and erroneously passed the
impugned order effecting illegal arrest of the applicant. A perusal of the impugned order will make it categorically clear that the learned Magistrate
has not assigned any reason and/ or relied upon any exceptional circumstance to carve an exception to section 46 (4) of the Cr.P.C. allowing the
arrest of the applicant. Sixthly, the only reason relied upon by the learned Magistrate while granting permission to arrest is reiterating the reason
offered by the respondent officers viz. offence is serious in nature and therefore, the arrest is necessary after sunset. The offence being serious, in no
manner whatsoever amounts to an exceptional circumstance and the learned Magistrate has failed to justify why the arrest was necessary in violation
of sub-section(4) of section 46 of the Cr.P.C. Sevently, the learned Magistrate has passed the impugned order mechanically and without the
application of mind. The learned Magistrate has not assigned any reason viz. possibility of hampering/ tampering at the hands of applicant and/or
likelihood of absconding etc. which would justify invoking the proviso to sub-section (4) of section 46 of the Cr.P.C. and permitting the arrest of the
applicant after sunset. Eightly, an arrest of the applicant effected on the basis of the impugned order is illegal and contrary to sub- section (4) of
section 46 of the Cr.P.C.. Section 46 of the Cr.P.C. specifically provides (arrest how made) and sets out the manner in which a person can be
arrested which includes the safeguards to be adhered to while arresting a woman. Sub section 4 of section 46 of the Cr.P.C. which came to be
inserted by the Amendment Act of 2005 is a salutary provision and since there was no exigency and/ or compelling circumstance for effecting the
arrest of the applicant after sunset, the arrest is ex-facie illegal. Section 60A of the Cr.P.C. which was inserted by Amendment Act 2008 says that
every arrest has to be in conformity with the provisions of the Code. Resultantly any arrest which is made in the violation of the provisions of the Code
shall be liable to be termed as not in accordance with the Code and thus, illegal. Ninethly, an arrest of the applicant itself being illegal in arguendo. It is
submitted that this fact was brought up to the notice of the learned Magistrate during the remand hearing by the advocate for the applicant. However,
the said argument does not find place in the remand orders passed by the learned Magistrate. It is further submitted that after being illegally arrested
by the officers in contravention to the provisions of law, the applicant was remanded to police custody for a period of 14 days after which she was
remanded to judicial custody on 30.03.2019 and continuous to be lodged and detained in jail. It is further submitted that the Court has repeatedly held
that if initial action is not in consonance with law, all subsequent and consequential proceedings will fall through as illegality strikes at the root of the
order. Further, since the arrest itself is illegal in its inception being in utter violation of statutory, it cannot be legalized at a later stage by the remand
Court. Therefore, the applicant has not preferred an application for bail since the arrest itself is illegal which was effected on the basis of the
impugned order and is therefore approaching this Hon'ble Court seeking a declaration of quashing and setting aside the impugned order and declaring
the consequent arrest as illegal.
9. It is further submitted that the applicant has been illegally arrested and detained, and is presently languishing in jail. The applicant has been in illegal
custody since 17.03.2019 i.e., a period of 80 days. The impugned order on the basis of arrest was effected by the respondent, was in gross violation
and contradiction of the provisions of law and thereby violated the applicant's fundamental and constitutional rights. The applicant places reliance on
the Supreme Court judgment in the case of Joginder Kumar V/s. State of UP & Ors 1994 SCC (4) 26.0 wherein the Hon'ble Supreme Court has
frowned upon illegal arrests and upheld the constitutional right to life and liberty and protection from such unjustified and illegal arrest.
10. It is further submitted that the constitutional guarantee of 'Right to Life and Liberty' as enshrined in Article 21 of the Constitution of India
categorically states that no person shall be deprived to his right to life except according to the procedure established by law. It is an obligation upon the
State to ensure that there is no infringement of indefectible Right to Life without following procedure established by law. The Cr.P.C. outlines the
manner and the extent to which a person can be denuded of his liberty and any deviation from the prescribed procedure in the manner of arrest can be
declared as illegal. In the present case, the impugned order granting permission to the respondent to arrest the applicant is in contravention of sub-
section (4) of section 46 and 60A of the Cr.P.C. has resulted in violation of the Constitutional and Fundamental Rights of the applicant which has
caused her irreparable stress and trauma. Learned Counsel placed reliance on the ratio laid down in the judgment passed by the Division Bench of the
Bombay High Court in the case of CBI vs. State of Maharashtra dated 10.05.2018 wherein this Court upheld Right to Life and Liberty while declaring
arrest in contravention of sub-section (4) of section 46 of the Cr.P.C. as illegal and further all consequent actions namely remand as null and void
thereby releasing the party from illegal detention. He has also placed reliance on law laid down by the Division Benches of the Bombay High Court in
the following cases :
(i) Jaywant Balkrishna Sail & Ors. Vs. State of Maharashtra & Ors. Criminal WP No. 1006 of 2012 dated 25.06.2012
(ii) Mrs.Bharati S. Khandhar Versus Shri. Maruti Govind Jadhav, PSI, Matunga Police Station,Matunga, Mumbai & Ors. Criminal WP No. 453 of
2008 dated 21.12.2012
(iii) Kavita Manikikar of Mumbai VERSUS Central Bureau of Investigation BS & FC & Anr. Criminal WP No. 1142 of 2018 dated 10.05.2018.
11. It is further submitted that, the Courts have on innumerable occasion before and after passing Amendment Act of 2005 held that, no female person
shall be detained or arrested without presence of a lady constable and in no case after sunset and before sunset. The Courts have held arrest effected
in contravention of sub-section (4) of section 46 of the Cr.P.C. as ex-facie illegal. Therefore, relying upon averments made in the application and
grounds taken therein, annexures thereto, learned Counsel appearing for the applicant prays that the application may be allowed.
12. Learned APP appearing for the respondent- State relying upon an affidavit in reply filed by Mr.Sanjay Dattu Hajare, PI, presently attached to
Bhiwandi Taluka Police Station, Dist. Thane (Rural), submitted that on 16.03.2019, a missing complaint came to be lodged by the wife of the deceased
at Kashimira Police Station. In the said complaint, she made a reference to the applicant abovenamed. The deceased was the Editor of a Magzine by
name ""India Un- Bound"". The applicant was working in the said office along with the deceased. The deceased was missing at that time and on inquiry
with the applicant by the wife of the deceased, she made a reference to Sai Palace Hotel at Kashimira and hence the said complaint was lodged at
the said police station. The said complaint was numbered as 31/2019 dated 16.03.2019. He further submitted that on the same day, the dead body of
the deceased was found at Kardi Village near Nala in the local jurisdiction of the said police station. Accordingly, the ADR No. 15/2019 came to be
registered at Bhiwandi Taluka Police Station. On the next day i.e., 17.03.2019, the local Crime Branch of the Kashimira Unit (for short, ""'LCB"") also
started investigation on the basis of the said missing complaint dated 16.03.2019. As there was a reference of the applicant in the said missing
complaint, the LCB called her for interrogation. On 17.03.2019, the applicant and the other accused Satishkumar Mishra were interrogated by the
concerned officer of LCB whole day. As the local police station also started investigation on the basis of the said ADR, a FIR No. 119/2019 came to
be registered at the said police station for the offences punishable under sections 302 and 201 of the I.P.C. at about 08.05 p.m. The police also
recored the statement of the wife of the deceased. It is pertinent to note that during the interrogation at the LCB, the applicant gave admission of her
guilt and commission of the murder of the deceased. She also admitted her attempt of destroying the dead body at the village Khardi near Nalla.
Therefore, the LCB produced the applicant and the other accused before the said police station at about 10.00 p.m.
13. It is further submitted that in this peculiar situation and on the receipt of the letter dated 17.03.2019 written by the Asst. Police Inspector, LCB,
Thane (Rural) to the Sr. Police Inspector, Bhiwandi Taluka Police Station, the police found it just and necessary to effect the arrest of the applicant at
the earliest. Therefore, to comply with the statutory norms and other formalities of arrest, one R.D.Londhe, Asst. Police Inspector, a lady police
officer from Padgha Police Station Camp, Bhiwandi Taluka Police Station was called. After going through the earlier statements of the wife of the
deceased, ADR lodged at the said police station, report of the LCB, the said lady police officer reported to the J.M.F.C., Bhiwandi to enable her to
arrest the applicant in accordance with sub-section 4 of section 46 of the Cr.P.C.
14. It is further submitted that after the concerned Magistrate granted permission to arrest the applicant, the said API Londhe effected the arrest of
the applicant and did further formalities as per the statutory norms and guidelines of the Hon'ble Supreme Court. These facts clearly show that the
police scrupulously and diligently complied with the statutory requirements contemplated under sub-section 4 of section 46 of the Cr.P.C and there is
no lapse or illegality on the part of the police while effecting the arrest of the applicant. He relied on the copies of the medical papers and other
documents as per guidelines laid down by the Hon'ble Supreme Court in the case of D.K.Basu vs. State of West Bengal 1997 (2) Bom. C.R. 666.
15. It is further submitted that on the next day i.e., on 18.03.2019, the applicant voluntarily made disclosure about the gold ornaments on the person of
the deceased, which she had kept at the residence at Mira Road. On the same day, the applicant along with the other accused were produced before
the learned Magistrate for remand. On the Remand Application dated 18.03.2019, the learned Magistrate granted police custody of the applicant and
the other accused upto 27.03.2019. It is pertinent to note that there was no complaint/ grievance made by the applicant of any custodial torture or
harassment or ill-treatment to the learned Magistrate.
16. It is further submitted that thereafter, on 26.03.2019, the applicant once again voluntarily made a disclosure of the nylon wire which was used to
strangulate the deceased and a plastic bottle which was used to prepare a shake, which the deceased was made to drink and he became unconscious.
It is further submitted that thereafter, on 27.03.2019, the applicant along with the other accused were again produced before the learned Magistrate
for her second remand. The learned Magistrate further extended the police custody of the applicant till 30.03.2019. Thereafter, on 30.03.2019, the
applicant and other accused were produced before the learned Magistrate for third remand. The learned Magistrate, however, granted judicial custody
of the applicant. It is significant to note that the applicant never made any complaint/ grievance to the learned Magistrate against the police about any
custodial torture, ill-treatment or harassment of any nature whatever. The above facts clearly show that the police have acted fairly and strictly in
accordance with the provisions of law and other guidelines laid down by the Hon'ble Supreme Court on the relevant issue. The above facts also show
that the police complied with the statutory requirement as contemplated under sub-section (4) of section 46 of the Cr.P.C. and there is no illegality or
high handedness by the police as falsely alleged by the applicant.
17. It is further submitted that it is also not out of place to mention that during the course of further investigation, the police also recorded the
statement of the concerned police officer of the LCB. The police thereafter completed investigation and filed chargesheet on 11.06.2019 in the Court
of J.M.F.C., Bhiwandi. It is also pertinent to note that the applicant in this entire period, never made any grievance of her arrest being illegal. The
same was made at the belated stage after filing of the chargesheet by the police. The facts mentioned above clearly show that the grievance of the
applicant is totally baseless and deserves to be rejected. Therefore, it is prayed that this criminal application being devoid of merits and the same be
rejected with costs.
18. Heard learned Counsel appearing for the applicant and learned APP appearing for the respondent -State at length. With their able assistance, I
have carefully perused the pleadings and grounds taken in the application and annexures thereto so also reply filed by respondent -State, relevant
provisions and the judgments cited by learned Counsel appearing for the applicant across the bar.
19. It appears that ADR No.15/2019 came to be registered at Bhiwandi Taluka Police Station on 16.03.2019 since one dead body of the deceased
was found at Kardi Village near Nala in the local jurisdiction of the said police station. It further appears that on the next day i.e., 17. 03.2019, the
LCB also started investigation on the basis of the said missing complaint dated 16.03.2019. The LCB called the applicant for interrogation. On
17.03.2019, the applicant and the other accused Satishkumar Mishra were interrogated by the concerned officer of LCB for whole day. The local
police station also started investigation on the basis of the said ADR. A FIR No. 119/2019 came to be registered at the said police station for the
offences punishable under sections 302 and 201 of the I.P.C. at about 08.05 p.m. The police also recored the statements of the wife of the deceased.
20. It is the case of the respondent -State that during interrogation at the LCB, the applicant gave admission of her guilt and commission of the murder
of the deceased. She also admitted her attempt of destroying the dead body at the village Khardi near Nalla. It appears that a letter was written by the
Asst. Police Inspector, LCB, Thane (Rural) to the Sr. Police Inspector, Bhiwandi Taluka Police Station on 17.03.2019. After going through the
contents of the said letter, the concerned police officer of the aforesaid police station found it just and necessary to effect the arrest of the applicant at
the earliest.
21. In the background of the aforesaid facts, the main contention of the applicant revolves around non-compliance of mandate of sub-section (4) of
section 46 and also section 60A of the Cr.P.C. It is contended by learned Counsel appearing for the applicant that the procedure as envisaged under
sub-section (4) of section 46 and also the mandate of section 60A of the Cr.P.C. has not been followed while effecting arrest of the applicant. In this
respect, it would be apt to reproduce herein-below sub-section (4) of section 46 and 60A of the Cr.P.C., which reads as under :
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"".
[60-A. Arrest to be made strictly according to the Code .- No arrest shall be made except in accordance with the provisions of this Code or any other
law for the time being in force providing for arrest]"".
22. In addition to above, it is also contended by learned Counsel appearing for the applicant that a fundamental right of the applicant as enshrined
under Article 21 of the Constitution of India is also violated. In order to find out whether in the present case, the mandate of sub-section (4) of section
46 and also section 60A of the Cr.P.C. is followed or not, it would be apt to reproduce herein-below an application filed by respondent -State before
the learned Magistrate :
.
1373/2019
.
- 17 2019
,
..
,
....
-
...
.
-
...... .
- 119/2019 302, 201
,
.
. . , . 45 .
401, ., 86, ,
46. ... .
119/2019 302, 201 .
1) 25 . 2) . .
46 401, . , 86, ,
.
25
. 25
.
..
( )
.
,
....
.
( )
.
23. When such application was presented before the learned Magistrate, the learned Magistrate passed the following order :
Read application. I.O. submitted that offence is serious in nature. Arrest is necessary after sunset. Considering reason, permission granted to arrest"".
24. It appears from the contents of the letter and also the order passed by learned Magistrate that, before the applicant was arrested, the learned
Magistrate granted permission for such arrest. It further appears that the police found it just and necessary to effect the arrest of the applicant at the
earliest and, therefore, to comply with the statutory provisions and other formalities of arrest, one R.D.Londhe, Asst. Police Inspector, a lady police
officer from Padgha Police Station Camp, Bhiwandi Taluka Police Station was called. After going through the statements of the wife of the deceased,
ADR lodged at the said police station and also report of the LCB. The said lady police officer reported to the learned Magistrate, Bhiwandi so as to
seek prior permission of the learned Magistrate for the arrest of the applicant keeping in view the aforesaid provisions. Therefore, in the present case,
keeping in view the contents of the application, which was filed by respondent -State on 17.03.2019, the learned Magistrate has passed the order. The
said application clearly discloses that the applicant is involved in serious offence. The procedure as envisaged under sub-section (4) of section 46 of
the Cr.P.C. has been scrupulously followed in the present case and after obtaining permission from the learned Magistrate, at the hands of lady police
officer, the applicant was arrested.
25. The learned Counsel appearing for the applicant has placed heavy reliance upon the ratio laid down in the cases of Jaywant Balkrishna Sail &
Ors. (supra), Mrs.Bharati S. Khandhar (supra) and Kavita Manikikar of Mumbai (supra). However, facts of the present case are clearly
distinguishable vis-a-vis the facts in three cases. In the said cases, women accused were arrested without prior permission of the learned Magistrate
since the lady police officer did not make report to the Magistrate so as to obtain prior permission for effecting the arrest. Thereafter, they were
produced before the learned Magistrate on the second day of arrest. Thus, there was clear violation of the aforesaid provisions in all those aforesaid
cases.
26. In the present case, as already observed, respondent has scrupulously followed the mandate of sub-section (4) of section 46 and also section 60A
of the Cr.P.C. before arresting the applicant. In that view of the matter, this Court is of the opinion that there is no substance in the application.
Hence, criminal application stands rejected. Rule stands discharged.
