VIOLATION OF CR.P.C. SECTION 46(4) IS NOT ALWAYS A MANDATORY GROUND FOR BAIL.

Papi Akter (accused person), wife of Suman Miah, was the subject of a bail application.

On November 24, 2025, at approximately 7:00 pm, SI Shubhankar Debbarma of Sonamura police station received information that Papi Akter and her husband, Suman Miah, had stored a large quantity of ganja in their house, transported by vehicle No. TR-07-0413 (Maruti Eeco car), and were reportedly involved in illicit drug trafficking.

Police proceeded to the house, arriving around 8:00 pm, where they recovered 5.985 kg of ganja from their room.

Suman Miah fled, while Papi Akter was detained and taken to the police station with the seized items.

She was formally arrested the following day, November 25, 2025, at approximately 10:05 am.

Police subsequently filed a charge-sheet against Papi Akter and Suman Miah (shown as absconder) under Sections 20(b)(ii)(B)/25/29 of the NDPS Act.

The petitioner argued that the arrest was illegal due to the violation of Section 46(4) Cr.P.C. (corresponding to Section 43(5) BNSS), which prohibits the arrest of a woman after sunset and before sunrise without prior magisterial permission.

1. Whether the arrest of the accused, Papi Akter, was illegal due to non-compliance with Section 46(4) Cr.P.C. (corresponding to Section 43(5) BNSS), which mandates that a woman shall not be arrested after sunset and before sunrise except under exceptional circumstances with prior magisterial permission.

2. Whether the non-compliance with Section 46(4) Cr.P.C. (corresponding to Section 43(5) BNSS) in every case automatically entitles the accused to be released on bail.

3. Whether the petitioner, Papi Akter, is entitled to bail given the circumstances of her detention and the completion of the investigation.

The court primarily applied Section 46(4) Cr.P.C. (corresponding to Section 43(5) BNSS, 2023), which stipulates that "no woman shall be arrested after sunset and before sunrise unless exceptional circumstances exist and where such exceptional circumstances exist, the woman police officer shall, by making a written report, obtain the prior permission of the Magistrate of the first class".

The court further referenced Section 43(1) BNSS regarding arrest by a lady police officer.

It considered Article 22(2) and Article 21 of the Constitution concerning production before a Magistrate within 24 hours and the right to life and liberty.

The court relied on the principles of statutory interpretation to determine whether a provision using the word "shall" is mandatory or directory, citing Hari Vishnu Kamath v. Ahmad Ishaque ((1954) 2 SCC 881) and State of Mysore v. V.K. Kangan ((1976) 2 SCC 895).

The court also invoked the principle that procedural rules should not ordinarily be construed as mandatory if non-compliance causes serious prejudice to those without control over the duty's performance, as established in Sharif-ud-din v. Abdul Gani Lone ((1980) 1 SCC 403) and Dattatraya Moreshwar v. The State of Bombay ((1952) 1 SCC 372).

The court analyzed the legality of the arrest in light of the petitioner's argument that Section 46(4) Cr.P.C. was violated.

While acknowledging the beneficial intent of Section 46(4) Cr.P.C., the court referred to the decision in Deepa v. S. Vijayalakshmi and others (2025 SCC OnLine Mad 934), which held Section 46(4) Cr.P.C. to be directory and not mandatory.

This interpretation was supported by the absence of a specified consequence for non-compliance within the statute, and the potential for public inconvenience or the defeat of the investigation's purpose if strict adherence were always required.

The Madras High Court's reasoning highlighted practical difficulties, such as in cases of urgent arrests for heinous offenses where obtaining prior magisterial permission might be unfeasible.

The court also noted the Supreme Court's observation in State of Maharashtra v. Christian Community Welfare Council of India and another ((2003) 8 SCC 546) that strict compliance with directions regarding female arrests could impede investigations or allow unscrupulous accused to evade the law.

The court acknowledged the divergent views of High Courts but adopted the stance that strict compliance with Section 46(4) Cr.P.C. may not always be feasible, particularly when the accused was apprehended with contraband items and there was a risk of them fleeing.

However, the court did note the absence of an explanation for why the accused, detained at 8:00 pm, was formally arrested the next morning at 10:05 am, suggesting a potential deliberate violation of procedure that warrants inquiry.

Despite not declaring the arrest illegal, the court considered the long period of custody, completion of investigation, and the intermediate quantity of ganja.

However, the court acknowledged that the arresting officer's showing of artificial arrest times warrants inquiry.

Papi Akter was granted bail on the submission of a fresh bail bond of Rs. 1,00,000/- with one surety, subject to conditions including not leaving Tripura without permission, not influencing witnesses, and regular court appearances.

The Director General of Police was directed to conduct an inquiry into the alleged violation of Section 43(5) BNSS by an officer not below the rank of Superintendent of Police, with departmental action to be taken for deliberate, unjustifiable violation.