Source:  Bombay High Court 

Why in News? 

Recently, Justice Urmila Joshi-Phalke held that granted bail to a woman arrested after sunset, emphasizing that the right to life and liberty under Article 21 cannot be denied without strict compliance with the law. 

• The Bombay High Court held this in the matter of Sujata Vilas Mahajan v. State of Maharashtra (2025). 

What was the Background of Sujata Vilas Mahajan v. State of Maharashtra (2025) Case ? 

• Smt. Sujata, wife of Vilas Mahajan, was employed at Babaji Date Mahila Sahakari Bank Limited in Yavatmal district. She began her career as a Clerk, was later promoted to Branch Manager, and eventually became the Chief Executive Officer of the bank. 
• During a routine audit of the bank, the auditor identified several irregularities and illegalities in the loan disbursement process. These findings prompted the appointment of a Special Auditor to conduct a comprehensive investigation into the bank's operations. 
• The Special Auditor's report revealed that various loans were sanctioned in favour of the applicant's husband and her relatives without following proper procedures or obtaining sanction from the Board of Directors. The husband also acted as a guarantor for loans taken by relatives. These loans, totaling Rs. 1.88 crores, were disbursed without due process, causing significant financial loss to the bank. 
• The investigation uncovered that during the applicant's tenure, the total fraud committed amounted to Rs. 2,42,31,21,019, affecting approximately 37,000 investors and depositors. 
• While the loans taken directly by the applicant's husband were subsequently repaid, the loans sanctioned in the names of various relatives remained problematic. The husband had mortgaged property as security, but no proper charge was created on the mortgaged property, and the mortgage deed was not registered in the Registrar's Office. 
• The bank failed to preserve loan records as required by RBI guidelines, which mandate preservation of loan proposal documents for eight years. These crucial documents were either destroyed or not available with the bank or liquidator. 
• Based on the Special Auditor's report, the police registered Crime No. 922/2024 against the applicant and other co-accused under multiple sections of the Indian Penal Code and the Maharashtra Protection of Interest of Depositors (in Financial Establishments) Act, 1999. 
• The applicant was arrested on 30th September 2024 and has remained in judicial custody since then. 

What were the Court’s Observations? 

• The court observed that the guarantee of life and liberty enshrined under Article 21 of the Constitution of India cannot be denied even to an accused in custody, and certainly not to a suspect being investigated. The State and courts have an obligation to ensure no infringement of this indefeasible right to life and liberty, which cannot be deprived without following the procedure established by law. 
• The Criminal Procedure Code describes the manner and extent to which a person can be deprived of liberty, necessitating strict compliance. Any violation of prescribed procedures in arrest matters can be declared illegal. 
• The court found that Section 46(4) of the CrPC mandates that no woman shall be arrested after sunset and before sunrise, except in exceptional circumstances requiring prior permission from a Judicial Magistrate. The court noted inconsistencies in arrest timing documents, with some showing arrest at 22:39 hours (after sunset) and others at 17:58 hours or 5:30 pm. 
• The court emphasized that merely informing relatives about an arrest is completely different from communicating the grounds of arrest. The arrest memo contains only basic information and not the grounds of arrest. The failure to communicate grounds of arrest to the applicant's relatives violated Article 22(1) of the Constitution. 
• Section 50A of the CrPC requires informing friends, relatives, or nominated persons about the arrest to ensure they can take immediate action to secure the arrested person's release. The arrested person may not have immediate access to legal processes due to detention. 
• While acknowledging that economic offences constitute a distinct class requiring different bail considerations due to their impact on public funds and the economy, the court noted that such offences involve deep-rooted conspiracies and pose serious threats to the country's financial health. 
• The court balanced the serious nature of the economic offence against the procedural violations in arrest, including the illegal arrest after sunset and failure to communicate grounds of arrest to relatives. 
• The court applied the Supreme Court's decision in Vihaan Kumar v. State of Haryana, which established that violation of Article 22(1) regarding grounds of arrest renders the arrest illegal. 
• The court concluded that despite the applicant's involvement in an economic offence, the illegal arrest after sunset and failure to communicate grounds of arrest to relatives rendered the arrest illegal, thereby making out a case for bail. 

What Constitutional Rights Protect Women from Arrest After Sunset? 

• The arrest of women after sunset is governed by fundamental constitutional principles, particularly Article 21 of the Indian Constitution, which guarantees the right to life and personal liberty. This constitutional protection extends to all citizens, including those under investigation or in custody. 
• Section 43(5) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) explicitly prohibits the arrest of women after sunset and before sunrise, except in exceptional circumstances. The provision mandates that where such exceptional circumstances exist, a woman police officer must obtain prior written permission from a Magistrate of the First Class within whose local jurisdiction the offence is committed or the arrest is to be made. 
• The protection against arrest of women after sunset was previously codified under Section 46(4) of the Code of Criminal Procedure, 1973 (CrPC), which was inserted by Amendment Act 25 of 2005 with effect from 23rd June 2006.  
  • This amendment was prompted by recommendations from the 135th and 154th Reports of the Law Commission of India on Women in Custody (1989). 
    • The Law Commission's recommendations emphasized that ordinarily, no woman shall be arrested after sunset and before sunrise. 
    • In exceptional cases requiring arrest during these hours, prior permission from the immediate superior officer must be obtained, or in cases of extreme urgency, a report with reasons must be made to the immediate superior officer and the Magistrate after arrest. 
• The use of the word "shall" in Section 43(5) of BNSS makes compliance mandatory rather than discretionary. Courts have consistently held that this provision creates an absolute embargo on the arrest of women during prohibited hours without following prescribed procedures. 

Case Laws  

Supreme Court Jurisprudence: 

• Vihaan Kumar v. State of Haryana (2025):  
  • The Supreme Court distinguished between information about arrest and grounds of arrest, holding that mere information about arrest does not constitute furnishing grounds of arrest.  
  • The court emphasized that violation of Article 22(1) regarding grounds of arrest communication renders the arrest illegal. 
  • Procedural Requirements for Exceptional Circumstances: When exceptional circumstances necessitate arrest after sunset, the following mandatory procedures must be followed: 
    • Only a woman police officer can effect the arrest. 
    • A written report must be prepared justifying the exceptional circumstances. 
    • Prior permission from the Magistrate of First Class is mandatory. 
    • The jurisdiction must be that where the offence is committed or arrest is to be made. 

Bombay High Court Precedents: 

• Christian Community Welfare Council of India v. Government of Maharashtra (1995):  
  • Prior to the 2005 amendment, the Bombay High Court Division Bench issued comprehensive directions regarding arrest of women, mandating that no female person shall be detained or arrested without the presence of a lady constable and in no case after sunset and before sunrise. 
• Bharati S. Khandhar v. Maruti Govind Jadhav (2012):  
  • The Bombay High Court held that the arrest of a woman at 8:45 pm was totally illegal and unacceptable, constituting a violation of Section 46(4) of the CrPC. The court emphasized that detention of a woman from 5:30 pm until production before the JMFC was in utter violation of statutory provisions. 
• Kavita Manikikar v. CBI(2018)  
  • The Bombay High Court imposed an exemplary fine of Rs. 50,000 on the Central Bureau of Investigation for conducting an illegal arrest of Ms. Kavita Manikikar, who was allegedly an authorized signatory of firms owned by Nirav Modi, demonstrating the court's commitment to enforcing women's protection provisions.