Mumbai: Bombay HC has held that the arrest of a woman, accused of extortion, after sunset was illegal and ordered her immediate release from jail.Justices Sarang Kotwal and Ranjitsinha Bhonsale on Wednesday said “there is a violation of Section 43 (5)” of Bharatiya Nagarik Surakha Sanhita, which states that no woman shall be arrested after sunset and before sunrise and in exceptional circumstances, a woman police officer shall, by making a written report, obtain prior permission from the jurisdictional magistrate.They clarified that the petitioner can be arrested later if the investigation warrants it after due procedure is followed.The woman, a Delhi resident, was arrested following an Aug 14 FIR lodged by Juhu police based on a man’s complaint that she had demanded Rs 4-5 crore from his brother-in-law, who owns an IT company and had helped her before. On July 23, an FIR had been filed against his brother-in-law for charges that included outraging her modesty. After a friend mediated, she demanded Rs 4 crore to withdraw the case but reduced it to Rs 2.5 crore, said the complaint. On Aug 11, a Rs 5 lakh advance was transferred to her, it said. The crime branch’s anti-extortion cell laid a trap on Aug 14 and she was caught when she came to collect the balance amount. She was placed under arrest at 11.45pm at the police station.The woman’s advocate, Yashwardhan Tiwari, cited HC’s May 2018 order, where it had held that an arrest is illegal if there is violation of mandatory provisions and a woman arrested under such circumstances is to be released forthwith.Prosecutor Mankunwar Deshmukh said the woman had accepted the bag of money at 4pm. Around noon, police conducted a pre-trap panchnama and the trap panchnama was over at 8pm. Deshmukh said the magistrate’s permission was taken.The judges noted that the application did not mention the time and its tenor indicated that “it was made before sunset because it mentioned… by the time she was put under arrest, it would be sunset”. The arrest panchnama showed she was arrested at 11.45pm. The application before the magistrate and the arrest form were signed by male officers. “Significantly, there is nothing… to show that any woman police officer was present when the petitioner was arrested in the police station,” said the judges.The judges noted that HC had given the accused benefit in its 2018 order. “The petitioner deserves similar relief,” they said.They declined the woman’s prayer for compensation, observing that women police officers in the raiding party had overpowered her. “Therefore, it was not as if male police officers had taken her in custody at the spot,” they said, adding that there could be some lapses but they were not intentional. They said they were not inclined to issue any direction for action against the police officers.
