Case Note & Summary
The petitioner, an executive assistant to Nirav Modi and authorised signatory of firms involved in an alleged fraud on Punjab National Bank, was arrested by the Central Bureau of Investigation at 8:00 p.m. on 20.02.2018 in connection with an FIR registered under Sections 120B, 420 IPC and Section 13(2) read with 13(1)(d) of the Prevention of Corruption Act, 1988. She challenged her arrest and subsequent remand order dated 21.02.2018 as illegal, contending that the arrest violated Section 46(4) of the Code of Criminal Procedure, which prohibits arrest of a woman after sunset and before sunrise without prior written permission of a Judicial Magistrate First Class in exceptional circumstances. The CBI opposed the petition, asserting that the petitioner was not cooperating and might abscond, and that the Special Judge had found no breach of the provision. The High Court heard the matter and reserved judgment. The provided excerpt does not contain the final decision of the court.
Headnote
A) Criminal Procedure - Arrest of Women - Mandatory Safeguard - Section 46(4) Code of Criminal Procedure, 1973 - Argument raised that arrest of a woman after sunset without prior written permission of Judicial Magistrate First Class is illegal and vitiates subsequent remand; exceptional circumstances require judicial oversight (Paras 6-7).
Issue of Consideration
Whether the arrest of the petitioner at 8:00 p.m. on 20.02.2018 violated Section 46(4) of the Code of Criminal Procedure; whether the remand order is nullity due to illegal arrest
Law Points
- Prohibition on arrest of women after sunset and before sunrise under Section 46(4) CrPC is mandatory
- prior written permission of Judicial Magistrate First Class required for exceptional circumstances
- arrest in violation renders subsequent remand illegal
Case Details
2018 LawText (BOM) (05) 27
WRIT PETITION NO.1142/2018
S. J. Kathawalla, Smt. Bharti H. Dangre
Vijay Aggarwal, Ashul Aggarwal, Yashwardhan Tiwari, Ameeta Kuttikrushnan, Rajan Salvi
Central Bureau of Investigation and State of Maharashtra
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Nature of Litigation
Criminal writ petition seeking declaration that arrest and subsequent remand are illegal due to violation of procedural safeguards under CrPC
Remedy Sought
Petitioner sought a declaration that her arrest by CBI was illegal and contrary to Section 46(4) CrPC, setting aside of the remand order dated 21.02.2018, and an inquiry against the officers who arrested her
Filing Reason
The petitioner was arrested at 8:00 p.m. on 20.02.2018 in the CBI office without prior permission of a Judicial Magistrate First Class, allegedly violating the prohibition on arrest of women after sunset
Previous Decisions
Special Judge, Greater Bombay, passed an order on 21.02.2018 remanding the petitioner to CBI custody for 14 days, despite her plea of illegal arrest
Issues
Whether the arrest of the petitioner at 20:00 hrs on 20.02.2018 violated Section 46(4) of the Code of Criminal Procedure
Whether the remand order dated 21.02.2018 was vitiated due to the illegality of the arrest
What relief, if any, should be granted
Submissions/Arguments
Petitioner argued that Section 46(4) is a mandatory safeguard, and her arrest after sunset without exceptional circumstances or magistrate’s permission was illegal; she was cooperating with investigation and there was no urgency; the remand order was thus nullity
Respondents argued that the accusations were grave, petitioner was not cooperating, and there was a strong suspicion she might abscond; the Special Judge had considered the provision and found no breach
Judgment Excerpts
It is specifically stated that she was accompanied with her husband and during investigation she was not cooperating and there was a strong suspicion that she may abscond if not arrested and therefore in order to unravel the large conspiracy in this fraud, she was placed under arrest formally and the arrest was carried out at 20:00 hrs by preparing a detailed ArrestcumPersonal Search Memo.
The petitioner was called in the office of CBI on 20.02.2018 and at about 8.00 p.m. she came to be arrested.
Procedural History
FIR registered by CBI on 31.01.2018; petitioner arrested on 20.02.2018 at 20:00 hrs; produced before Special Judge on 21.02.2018 and remanded to CBI custody for 14 days; writ petition filed challenging arrest and remand.
Acts & Sections
- Code of Criminal Procedure, 1973: Section 46(4), Section 60A
- Indian Penal Code, 1860: Section 120B, Section 420
- Prevention of Corruption Act, 1988: Section 13(2), Section 13(1)(d)
