Case Note & Summary
The applicant, Ankita Harinath Mishra, was accused of murder under Sections 302 and 201 of the Indian Penal Code in connection with the death of Nityanand Sheetalprasad Pandey. The FIR was registered on 17 March 2019 at 20:33 hours against unknown persons. On the same day, the police sought permission from the Judicial Magistrate, 4th Court, Bhiwandi, to arrest the applicant after sunset. The Magistrate granted permission by a brief order stating that the offence was serious and arrest was necessary. The applicant challenged this order before the Bombay High Court, arguing that the Magistrate failed to record any exceptional circumstances as required by Section 46(4) of the Code of Criminal Procedure, 1973. The High Court examined the impugned order and found that it was passed mechanically without any application of mind. The court noted that Section 46(4) CrPC mandates that no arrest shall be made after sunset except in exceptional circumstances, and the Magistrate must record reasons for granting such permission. Since the order did not mention any exceptional circumstances, it was held to be illegal. The High Court quashed the order dated 17 March 2019 and directed that the applicant be released forthwith if not required in any other case. The court also clarified that the investigating officer could still seek permission to arrest the applicant during daytime if warranted by the investigation.
Headnote
A) Criminal Procedure - Arrest After Sunset - Section 46(4) CrPC - Permission to Arrest - The court examined whether the Magistrate's order granting permission to arrest the applicant after sunset was valid. The order merely stated that the offence was serious and arrest was necessary, without recording any exceptional circumstances. Held that the order was passed in a mechanical manner without application of mind, violating Section 46(4) CrPC, and was therefore illegal and liable to be quashed (Paras 1-10).
Issue of Consideration
Whether the learned Magistrate was justified in granting permission to arrest the applicant after sunset without recording any exceptional circumstances as required under Section 46(4) of the Code of Criminal Procedure, 1973
Final Decision
The High Court allowed the application, quashed the order dated 17.03.2019 passed by the learned Judicial Magistrate, 4th Court, Bhiwandi, Thane, and directed that the applicant be released forthwith if not required in any other case. The investigating officer was at liberty to seek permission to arrest the applicant during daytime if warranted by the investigation.
Law Points
- Arrest after sunset requires exceptional circumstances
- Section 46(4) CrPC
- Judicial Magistrate must record reasons for granting permission to arrest after sunset
- Order granting permission to arrest after sunset without recording exceptional circumstances is illegal
Case Details
2019 LawText (BOM) (08) 96
Criminal Application No. 688 of 2019
Mr. Rizwan Merchant i/b. Rizwan Merchant and Associates for the Applicant, Mr. A.R. Patil, APP for the Respondent-State
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Nature of Litigation
Criminal application challenging the order of the Judicial Magistrate granting permission to arrest the applicant after sunset.
Remedy Sought
The applicant sought quashing of the order dated 17.03.2019 granting permission to arrest her after sunset.
Filing Reason
The applicant was aggrieved by the order of the learned Magistrate granting permission to arrest her after sunset without recording any exceptional circumstances as required under Section 46(4) CrPC.
Previous Decisions
The learned Judicial Magistrate, 4th Court, Bhiwandi, Thane passed the impugned order on 17.03.2019 granting permission to arrest the applicant after sunset.
Issues
Whether the learned Magistrate was justified in granting permission to arrest the applicant after sunset without recording any exceptional circumstances as required under Section 46(4) CrPC.
Submissions/Arguments
The applicant's counsel submitted that the impugned order was passed mechanically without application of mind and did not record any exceptional circumstances as required by Section 46(4) CrPC.
The respondent-State argued that the offence was serious and the arrest was necessary.
Ratio Decidendi
Section 46(4) of the Code of Criminal Procedure, 1973 mandates that no arrest shall be made after sunset except in exceptional circumstances, and the Magistrate must record reasons for granting such permission. The impugned order merely stated that the offence was serious and arrest was necessary, without recording any exceptional circumstances, and was therefore passed mechanically without application of mind, rendering it illegal.
Judgment Excerpts
The order reads: 'Read application. I.O. submitted that offence is serious in nature. Arrest is necessary after sunset. Considering reason, permission is granted to arrest.'
The court observed that the order was passed in a mechanical manner without application of mind and without recording any exceptional circumstances as required under Section 46(4) CrPC.
Procedural History
On 17.03.2019, FIR No. 119 of 2019 was registered under Sections 302 and 201 IPC against unknown persons. On the same day, the police sought permission from the Judicial Magistrate, 4th Court, Bhiwandi to arrest the applicant after sunset. The Magistrate granted permission by order dated 17.03.2019. The applicant filed Criminal Application No. 688 of 2019 before the Bombay High Court challenging the said order. The High Court reserved judgment on 01.08.2019 and pronounced it on 16.08.2019.
Acts & Sections
- Code of Criminal Procedure, 1973: Section 46(4)
- Indian Penal Code, 1860: Sections 302, 201
