Madras High Court
Deepa vs S.Vijayalakshmi ... 1St on 7 February, 2025
Author: G.R.Swaminathan
Bench: G.R.Swaminathan
W.A.(MD)Nos.1155 of 2020, 1200 &1216 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 07.02.2025
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
AND
THE HONOURABLE MR.JUSTICE M.JOTHIRAMAN
W.A(MD)Nos.1155 of 2020, 1200 & 1216 of 2019
and
C.M.P(MD)Nos.6322, 10380 & 10467 of 2019
W.A(MD)No.1155 of 2020:
Deepa ... Appellant /
5th Respondent
Vs.
1.S.Vijayalakshmi ... 1st Respondent /
Writ Petitioner
2.The Director General of Police,
Dr.Radhakrishnan Salai,
Mylapore,
Chennai – 600 004.
3.South Zone Inspector General of Police,
Race Course Colony,
Reserve Line,
Madurai – 625 002.
4.The Commissioner of Police,
Madurai City,
Madurai – 625 002.
https://www.mhc.tn.gov.in/judis
1/27
W.A.(MD)Nos.1155 of 2020, 1200 &1216 of 2019
5.The Deputy Commissioner of Police (L&O),
Madurai City,
Madurai – 625 002.
6.Krishnaveni
7.S.Anitha ... Respondents 2 to 7 /
Respondents 1 to 6
Prayer: Writ Appeal filed under Clause 15 of Letters Patent Act to set
aside the order passed by this Court pertaining to the appellant in
W.P(MD)No.5508 of 2019 dated 18.10.2019 by allowing this appeal.
For Appellant : Mr.S.Alagusundar
For Respondents : Mr.S.R.Anbarasu for R.1
Mr.A.Albert James
Government Advocate
for R.2 to R.5
W.A(MD)No.1200 of 2019:
Krishnaveni ... Appellant /
6th Respondent
Vs.
1.S.Vijayalakshmi ... 1st Respondent /
Writ Petitioner
2.The Director General of Police,
Dr.Radhakrishnan Salai,
Mylapore,
Chennai – 600 004.
https://www.mhc.tn.gov.in/judis
2/27
W.A.(MD)Nos.1155 of 2020, 1200 &1216 of 2019
3.South Zone Inspector General of Police,
Race Course Colony,
Reserve Line,
Madurai – 625 002.
4.The Commissioner of Police,
Madurai City,
Madurai – 625 002.
5.The Deputy Commissioner of Police (L&O),
Madurai City,
Madurai – 625 002.
6.Deepa
7.S.Anitha ... Respondents 2 to 7 /
Respondents 1 to 5 & 7
Prayer: Writ Appeal filed under Clause 15 of Letters Patent Act to set
aside the order passed by this Court pertaining to the appellant in
W.P(MD)No.5508 of 2019 dated 18.10.2019 by allowing this appeal.
For Appellant : Mr.W.Pamelin
For Respondents : Mr.S.R.Anbarasu for R.1
Mr.A.Albert James
Government Advocate
for R.2 to R.5
W.A(MD)No.1216 of 2019:
S.Anitha ... Appellant /
7th Respondent
Vs.
https://www.mhc.tn.gov.in/judis
3/27
W.A.(MD)Nos.1155 of 2020, 1200 &1216 of 2019
1.S.Vijayalakshmi ... 1st Respondent /
Petitioner
2.The Director General of Police,
Dr.Radhakrishnan Salai,
Mylapore,
Chennai – 600 004.
3.South Zone Inspector General of Police,
Race Course Colony,
Reserve Line,
Madurai – 625 002.
4.The Commissioner of Police,
Madurai City,
Madurai – 625 002.
5.The Deputy Commissioner of Police (L&O),
Madurai City,
Madurai – 625 002.
6.Deepa
7.Krishnaveni ... Respondents 2 to 7 /
Respondents 1 to 6
Prayer: Writ Appeal filed under Clause 15 of Letters Patent Act to set
aside the order passed by this Court pertaining to the appellant in
W.P(MD)No.5508 of 2019 dated 18.10.2019 by allowing this appeal.
For Appellant : Mr.M.Subash Babu
Senior Counsel
for M/s.Subash Law Office
For Respondents : Mr.S.R.Anbarasu for R.1
https://www.mhc.tn.gov.in/judis
4/27
W.A.(MD)Nos.1155 of 2020, 1200 &1216 of 2019
Mr.A.Albert James
Government Advocate
for R.2 to R.5
COMMON JUDGMENT
(Judgment of the Court was delivered by G.R.SWAMINATHAN, J.)
These Writ Appeals are directed against the order dated
18.10.2019 allowing W.P(MD)No.5508 of 2019 filed by the first
respondent herein (S.Vijayalakshmi).
2.The averments set out in the affidavit filed in support of the
writ petition can be summarized as follows:
The writ petitioner's husband / Saravanan is engaged in the
business of selling tyres. His premises are located in D.No.31/1,
Workshop Road, Madurai–1. His brother Madhu Pandian is also running
a similar business on the opposite side. The relationship between the
brothers came under strain. Madhu Pandian wanted to grab the
petitioner's husband premises. He had obtained Saravanan's signatures
by force in blank stamp papers on 22.07.2018 and fabricated a deed in
his favour. Hence, Saravanan lodged complaint before C4, Thilagar
Thidal Police Station. On 28.10.2018, when the petitioner went to her
https://www.mhc.tn.gov.in/judis
W.A.(MD)Nos.1155 of 2020, 1200 &1216 of 2019
husband's shop, she was threatened by Madhu Pandian; he also
videographed her. Hence the writ petitioner lodged complaint on
01.11.2018 leading to registration of Crime No.24 of 2018 on the file of
AWPS(South), Madurai. Pursuant to the order in Cr.M.P.No.4660 of
2018 dated 14.11.2018 on the file of the learned Judicial Magistrate No.
2, Madurai obtained by the petitioner's husband, Crime No.950 of 2018
was registered against Madhu Pandian on 25.12.2018. The local Police
wanted the petitioner and her husband to withdraw the aforesaid cases
registered against Madhu Pandian. Since the petitioner as well as her
husband refused, a false case in Crime No.20 of 2019 was registered
against them at the instance of Madhu Pandian on 12.01.2019. On
14.01.2019, at about 08.00 p.m, the petitioner was arrested in front of her
husband's shop premises. She was forcibly taken to the Police Station.
She was abused and also beaten up. Injury was caused to her with knife.
She was then taken to the hospital and remanded on the next day. The
petitioner represented to the higher authorities about the high handedness
of the local Police. Since no action was taken, she approached the High
Court seeking departmental action against the erring Police personnel
and also for payment of compensation.
https://www.mhc.tn.gov.in/judis
W.A.(MD)Nos.1155 of 2020, 1200 &1216 of 2019
3.The contesting respondents denied the version projected by
the writ petitioner. However, the learned single Judge came to the
conclusion that there has been a clear breach of the mandate contained in
Section 46(4) of Cr.P.C which prohibited the arrest of women after
sunset and before sunrise without the permission of the Judicial
Magistrate. Terming the writ petitioner's arrest as illegal, the learned
single Judge directed the disciplinary authority to initiate departmental
action against the appellants herein. The department was directed to pay
cost of Rs.50,000/- to the writ petitioner and recover the same from the
salaries of the appellants.
4.Aggrieved by the said order, S.Anitha, Inspector of Police
has filed W.A(MD)No.1216 of 2019. S.Deepa who was the Sub-
Inspector of Police has filed W.A(MD)No.1155 of 2020. Krishna Veni,
Woman Head Police Constable attached to C4, Thilagar Thidal Police
has filed W.A(MD)No.1200 of 2019.
5.Heard both sides.
https://www.mhc.tn.gov.in/judis
W.A.(MD)Nos.1155 of 2020, 1200 &1216 of 2019
6.Three issues arise for consideration:
i) Whether the writ appeals are maintainable?
ii) Whether Section 46(4) of Cr.P.C (which corresponds to Section 43(5)
of BNSS Act) is mandatory?
iii) Whether the appellants are entitled to relief?
7.The learned counsel appearing for the writ petitioner / first
respondent herein submitted that since the learned single Judge had
passed the impugned order by exercising his criminal jurisdiction, the
present writ appeals filed under Clause 15 of Letters Patent would not lie.
He relied on the decision reported in 2023 LiveLaw (Gau) 91 (Shri Deba
Prasad Dutta Vs The State of Assam).
8.We overrule the said objection. Clause 15 of Letters Patent
of the High Court of Judicature Madras is to the effect that an appeal
shall not lie before the Division Bench from the judgment / order of the
single Judge made in exercise of criminal jurisdiction. The expression
“criminal jurisdiction” has been defined as one which exists for the
punishment of crimes (P.Ramanatha Aiyar's Advanced Law Lexican).
The Hon'ble Supreme Court in the decision reported in (2017) 5 SCC
https://www.mhc.tn.gov.in/judis
W.A.(MD)Nos.1155 of 2020, 1200 &1216 of 2019
533 (Ram Kishan Fauji Vs State of Haryana & Others) had held that
the conception of criminal jurisdiction is not to be construed in a narrow
sense. A criminal proceeding is ordinarily one which if carried to its
conclusion may result in the imposition of sentences. For instance, if an
order has been passed under Article 226 directing the Police to register
an FIR if any cognizable offence is made out, writ appeal challenging
such an order is not maintainable under Clause 15 (KN Pudur Primary
Agricultural Coop Credit Society Vs G.Balakrishnan (2018) 2 LW 111).
9.The controversy may have its seed in a criminal proceeding.
But genesis and origin cannot be the sole determinant. The nature of
proceeding, the relief sought for and the consequences flowing from the
order passed by the learned single Judge will answer the issue whether
there was exercise of criminal jurisdiction or not. The writ petitioner did
not seek bail on the ground that her arrest was illegal. On the other hand,
she wanted the concerned police personnel to be departmentally dealt
with. She sought compensation. These are matters which do not fall in
the realm of criminal jurisdiction. The award of compensation in a
proceeding under Article 226 of Constitution of India is a remedy
available in public law (Nilabati Behera Vs State of Orissa (1993) 2
https://www.mhc.tn.gov.in/judis
W.A.(MD)Nos.1155 of 2020, 1200 &1216 of 2019
SCC 746). We, therefore, hold that the above writ appeals are
maintainable.
10.The writ petitioner was arrested on 14.01.2019 at about
20:00 hours. This is undoubtedly after sunset and before sunrise. The
writ petitioner is a woman. No prior permission from the jurisdictional
Magistrate was obtained before effecting arrest. No doubt, there has been
a breach of the statutory mandate set out in Section 46(4) of Cr.P.C. But
the question that calls for consideration is whether Section 46(4) of
Cr.P.C is mandatory.
11.Section 46(4) of Cr.P.C is as follows:
“46. Arrest how made - ...
(4) Save in exceptional circumstances, no
woman shall be arrested after sunset and before sunrise,
and where such exceptional circumstances exist, the
woman police officer shall, by making a written report,
obtain the prior permission of the Judicial Magistrate of
the first class within whose local jurisdiction the offence is
committed or the arrest is to be made.”
Section 43(5) of BNSS Act, 2023 which corresponds to Section 46(4) of
Cr.P.C is identically worded.
https://www.mhc.tn.gov.in/judis
W.A.(MD)Nos.1155 of 2020, 1200 &1216 of 2019
12.Section 46(4) of Cr.P.C was considered by quite a few High
Courts. We came across quite a few decisions wherein arrests made in
breach of the procedure set out in Section 46(4) of Cr.P.C were declared
illegal. Even compensation was awarded in some cases (2021 SCC
OnLine Bom 150 (Aleksander Kurganov Vs State of Maharashtra,
2018 SCC Online Bom 1095 (Kavitha Manikikar of Mumbai Vs
Central Bureau of Investigation), 2016 SCC OnLine Gauhati 783
(Tanuja Roy Vs State of Assam). Even though we are conscious that
Section 46(4) of Cr.P.C is a beneficial provision incorporated to ensure
the safety of women, we are unable to hold that it is mandatory.
13.Section 46(4) of Cr.P.C was inserted by Act 25 of 2005
with effect from 23.06.2006. The 135th report of the Law Commission of
India on Women in Custody (1989) recommended that ordinarily no
women shall be arrested after sunset and before sunrise and in
exceptional cases calling for arrest during these hours, prior permission
of the immediate, superior officer shall be obtained or if the case was of
extreme urgency, then after arrest report with reasons shall be made to
the immediate superior officer and to the Magistrate. The 154th report of
https://www.mhc.tn.gov.in/judis
W.A.(MD)Nos.1155 of 2020, 1200 &1216 of 2019
the Law Commission of India suggested incorporation of the following
provision in Section 46 of Cr.P.C:
“Save in exceptional circumstances, no woman shall be
arrested after sunset and before sunrise, and where such
exceptional circumstances exist, the police officer shall, by
making a written report, obtain the prior permission of the
immediate Superior Officer for effecting such arrest, or if the
case is one of extreme urgency and such prior permission
cannot be obtained before making such arrest, he shall, after
making the arrest, forthwith report the matter in writing to
his immediate superior officer explaining the urgency and the
reasons for not taking prior permission as aforesaid and also
shall make a report to the Magistrate within whose local
jurisdiction the arrest had been made.”
In Section 46(4) of Cr.P.C / 43(5) of BNSS, 2023 the expression “Shall”
is found. It is well established that an enactment in form mandatory
might in substance be directory and that the use of the word “shall” does
not conclude the matter (Hari Vishnu Kamath vs Ahmad Ishaque (AIR
1955 SC 233)). The construction of a statutory provision as directory or
mandatory must depend on the legislative intent and context in which it
was made and not upon the language in which the intent is clothed. The
meaning and intention of the legislature are to be ascertained by having
https://www.mhc.tn.gov.in/judis
W.A.(MD)Nos.1155 of 2020, 1200 &1216 of 2019
regard to its nature, design and the consequences which would follow
from construing it in one way or the other (vide State of Mysore vs V.K.
Kangan (AIR 1975 SC 2190)). Merely because a provision of law is
couched in a negative language implying mandatory character, the same
is not without exceptions. The Courts when called upon to interpret the
nature of the provision, may, keeping in view the entire context in which
the provision came to be enacted, hold the same to be directory (2005) 4
SCC 480 (Kailash vs Nankhu).
14.The Hon'ble Supreme Court in Sharif-ud-din Vs Abdul
Gani Lone ((1980) 1 SCC 403) held as follows:
“9. The difference between a mandatory rule and a
directory rule is that while the former must be strictly
observed, in the case of the latter substantial compliance
may be sufficient to achieve the object regarding which the
rule is enacted. Certain broad propositions which can be
deduced from several decisions of courts regarding the rules
of construction that should be followed in determining
whether a provision of law is directory or mandatory may be
summarised thus: The fact that the statute uses the word
“shall” while laying down a duty is not conclusive on the
question whether it is a mandatory or directory provision. In
order to find out the true character of the legislation, the
https://www.mhc.tn.gov.in/judis
W.A.(MD)Nos.1155 of 2020, 1200 &1216 of 2019
court has to ascertain the object which the provision of law
in question has to subserve and its design and the context in
which it is enacted. If the object of a law is to be defeated by
non-compliance with it, it has to be regarded as mandatory.
But when a provision of law relates to the performance of
any public duty and the invalidation of any act done in
disregard of that provision causes serious prejudice to those
for whose benefit it is enacted and at the same time who have
no control over the performance of the duty, such provision
should be treated as a directory one. Where, however, a
provision of law prescribes that a certain act has to be done
in a particular manner by a person in order to acquire a
right and it is coupled with another provision which confers
an immunity on another when such act is not done in that
manner, the former has to be regarded as a mandatory one.
A procedural rule ordinarily should not be construed as
mandatory if the defect in the act done in pursuance of it can
be cured by permitting appropriate rectification to be
carried out at a subsequent stage unless by according such
permission to rectify the error later on, another rule would
be contravened. Whenever a statute prescribes that a
particular act is to be done in a particular manner and also
lays down that failure to comply with the said requirement
leads to a specific consequence, it would be difficult to hold
that the requirement is not mandatory and the specified
consequence should not follow.”
https://www.mhc.tn.gov.in/judis
W.A.(MD)Nos.1155 of 2020, 1200 &1216 of 2019
The Constitution Bench of the Hon'ble Supreme Court in Dattatraya
Moreshwar Vs The State of Bombay AIR 1952 SC 181) held that
generally speaking the provisions of a statute creating public duties are
directory and those conferring private rights are imperative. When the
provisions of a statute relate to the performance of a public duty, and the
case is such that, to hold null and void acts done in neglect of this duty
would work serious general inconvenience or injustice to persons who
have no control over those entrusted with the duty and at the same time
would not promote the main object of the legislature, it has been the
practice of Courts to hold such provisions to be directory.
15.Section 46(4) of Cr.P.C has not spelt out the consequence of
non-compliance with the requirement set out therein. If the provision
was intended to be mandatory, the legislature would definitely have
provided for the consequences of non-compliance. It cannot be denied
that when a Police officer effects arrest pursuant to the power conferred
on him by Cr.P.C, he is carrying out a public duty. The matter is not
between the official effecting arrest and the arrestee. There is a third
party involved, namely, victim / defacto complainant. The victim cannot
be allowed to suffer for the neglect of duty by the Police officer.
https://www.mhc.tn.gov.in/judis
W.A.(MD)Nos.1155 of 2020, 1200 &1216 of 2019
16.There are certain practical aspects to be borne in mind. Let
us conceive of this situation: a woman commits murder after sunset and
before sunrise; the information reaches the local Police Station; the
accused is about to escape; in such a situation, should the officer
concerned prepare a written report, send it to the local Magistrate, wait
for His Honour's permission and upon receipt thereof, proceed to arrest
the accused? We have no doubt in our minds that the horse would have
bolted by then. Mechanical adherence to procedures can injure public
interest at times. That is why, when the Nagpur Bench of the High Court
of Bombay directed the State Government to issue instructions to all
police officials that no female persons shall be detained or arrested
without the presence of the lady constable and in no case after sunset and
before sunrise, the Hon'ble Supreme Court in State of Maharashtra Vs
Christian Community Welfare Council of India (2003) SCC 8 546
observed that while they agreed with the object behind the direction, a
strict compliance with the said direction in a given circumstance would
cause practical difficulties to the investigating agency and even might
give room for evading the process of law by unscrupulous accused.
https://www.mhc.tn.gov.in/judis
W.A.(MD)Nos.1155 of 2020, 1200 &1216 of 2019
17.The statutory provision envisages that the woman police
officer should make a written report and obtain the prior permission of
the Magistrate before making arrest. One can very easily imagine
situations when the investigating officer is left with very little time to
respond. Suppose a heinous offence takes place at midnight. The
jurisdictional Magistrate may not be available or accessible. Digital
solutions may not also work. The Magistrate may be fast asleep. The
written report sent by mail would be lying in his inbox. The accused will
not be waiting for the Police officer to obtain permission from the
Magistrate.
18.It was observed in D.Venkatasubramaniam Vs
M.K.Mohan Krishnamachari reported in (2009) 10 SCC 488 that it is
the statutory obligation and duty of the Police to investigate into the
crime and the Courts normally ought not to interfere and guide the
investigating agency as to in what manner the investigation has to
proceed. In Abhinandan Jha Vs Dinesh Mishra AIR 1968 117 it was
observed that the manner and method of conducting investigation are left
entirely to the police and the Magistrate has no power to interfere with
https://www.mhc.tn.gov.in/judis
W.A.(MD)Nos.1155 of 2020, 1200 &1216 of 2019
the same. The Privy Council in Nazir Ahamed case LR 71 IA 273
observed that the judiciary should not interfere with the police in matters
which are within their province. The functions of the judiciary and the
police are complementary and not overlapping. Investigation includes
the discovery and arrest of the suspected offender. We are therefore of
the view that it would not be in the interest of maintaining law and order
if a Police officer is expected to write to the local Magistrate and effect
arrest only after obtaining his/her prior permission. Such a stringent
condition would disable Police officers from effectively discharging their
public duties.
19.Though we have held that Section 46(4) of Cr.P.C / 43(5) of
BNSS is directory and not mandatory, the provision cannot be rendered
otiose by the Police. There is a laudable reason for incorporating such a
provision. It is meant to serve as a note of caution to the officers
effecting arrest of women. While failure to adhere to the statutory
requirement may not lead to the arrest being declared illegal, the officer
concerned may have to offer explanation for inability to comply with the
procedure.
https://www.mhc.tn.gov.in/judis
W.A.(MD)Nos.1155 of 2020, 1200 &1216 of 2019
20.The statutory provision is in two parts. It forbids arrest of
women between sunset and sunrise except in exceptional situations.
Even in exceptional situations, the prior permission of the jurisdictional
Magistrate must be obtained. Since the provision does not offer any clue
as to what would constitute an exceptional situation, a learned Judge of
Madras High Court vide order dated 16.03.2023 in W.P.No.29972 of
2015 (S.Salma Vs The State of Tamil Nadu & Others) directed the
authorities to frame appropriate guidelines in this regard. Pursuant to the
said direction, the Deputy General of Police had issued guidelines
governing the arrest of women. They are as follows:
“6. In view of Section 46 of the Code and the law laid by
the Hon'ble Apex Court and High Court, the following
guidelines are issued for strict adherence by the Police:-
i. No woman shall be arrested after sunset and
before sunrise.
ii. In exceptional circumstances only, arrest of
a woman can be done after sunset and before sunrise
with the following preconditions:
a. Such arrest shall only be carried out by a
woman police officers; and
b. Prior permission from the Judicial
Magistrate of the first class within whose local
jurisdiction the offence is committed or the arrest is to be
done shall be obtained.
https://www.mhc.tn.gov.in/judis
W.A.(MD)Nos.1155 of 2020, 1200 &1216 of 2019
iii. Prior permission from the Judicial
Magistrate of the first class may also be obtained
electronically / digitally if situation warrants. Such
records obtained electronically / digitally shall be
preserved in a proper manner and such permission
through electronic means shall be restored to only in
unavoidable circumstances.
iv. When a woman is to be arrested, her
submission to custody shall be taken on an oral
intimation of arrest and unless the circumstances
otherwise require, or unless the police officer is a female,
the police officer shall not touch the accused woman for
making her arrest – Section 46(1) of the Code.
v. The grounds of arrest shall be informed to
the arrested woman – Section 50(1) of the Code.
vi. A woman shall be informed of her right to
be released on bail after the arrest of a woman without a
warrant for an offense other than a non-bailable one, and
after arranging sureties on her behalf – Section 50(2) of
the Code.
vii. Police Officer making an arrest has to
immediately give the information regarding such arrest
and the place where the arrested person is being held to
any of him / her friends, relatives, or such other persons
as may be disclosed or
viii. Only female police officer can search the
arrested woman with strict regard to decency – Section
https://www.mhc.tn.gov.in/judis
W.A.(MD)Nos.1155 of 2020, 1200 &1216 of 2019
51(2) of the Code.
ix. No male police officer can search the arrested woman.
However, he can search a arrested woman's house.
x. If the accused woman is brought for medical
examination, her medical examination shall conducted
only by, or under the supervision of, a female registered
medical practitioner – Section 53(2) of the Code.
xi. When the arrested woman is brought for
medical examination, her medical examination shall be
conducted only by, or under the supervision of, a female
medical officer and in case the female medical officer is
not available, by a female registered medical practitioner
– Section 54(1) of the Code.
xii. Arrested woman shall not be detained in
custody for more than 24 hours without a special order of
a Magistrate – Section 57 of the Code.
xiii. Arrested woman should be segregated
from men and kept in All Woman Police Station.
xiv. Woman should be guarded by female
constables / police officers. They must be questioned in
the presence of police women.
xv. All necessary pre-natal and post-natal care
should be provided to females who are arrested.
Restraints should only be used on pregnant women a last
resort. Their safety or the safety or their foetus should
never be put at risk. Women must never be restrained
during labour.
https://www.mhc.tn.gov.in/judis
W.A.(MD)Nos.1155 of 2020, 1200 &1216 of 2019
7. The above guidelines and the judgments of
the Hon'ble Apex court and the High Court referred to
above shall be strictly adhered to by all the police
officials. Any deviation will be viewed seriously and
appropriate disciplinary action will be taken against the
personnel if any deviation is found.”
We are afraid that the above guidelines merely reiterate the statutory
language and the relevant portions of the order dated 16.03.2003 in
W.P.No.29972 of 2015 (S.Salma Vs The State of Tamil Nadu &
Others). They do not appear to shed clear light on the problem that may
be faced by the arresting officers tasked with discharging public duty.
We direct the Police Department to issue further guidelines clarifying as
to what would constitute exceptional situations. Even the State
legislature can consider bringing a local amendment to Section 43 of
BNSS on the lines suggested by the Law Commission of India in its 154th
report.
21.In the case on hand, admittedly, arrest was made by Deepa,
Sub Inspector of Police. Krishnaveni, the Women Head Constable who
carried out the arrest could not have disobeyed the order of her
immediate superior. It would be too much to expect from a Head
Constable to seek clarification from her superior if she had obtained prior
https://www.mhc.tn.gov.in/judis
W.A.(MD)Nos.1155 of 2020, 1200 &1216 of 2019
permission from the jurisdictional Magistrate. Though illegal orders are
not meant to be obeyed, the illegality must be evident on the face of it. In
an Uniformed force, discipline is paramount. The conduct of Krishnaveni
must be viewed from this perspective. In fact, Krishnaveni had suffered
at the hands of the writ petitioner. She is said to have inflicted cut injury
on Krishnaveni with pen knife during the occurrence. Krishnaveni was
admitted in Hospital and as many as 10 stitches had to be put. Crime No.
26 of 2019 was registered against the writ petitioner and Krishnaveni
was the defacto complainant. It was later charge sheeted and taken
cognizance in C.C.No.558 of 2019 on the file of the learned Judicial
Magistrate No.2, Madurai. To quash the same, S.Vijayalakshmi filed
Crl.O.P(MD)No.16541 of 2019. This was taken up along with a number
of other petitions. The learned Judge who heard the quash petitions
suggested to the parties to give a quietus to the issue. Based on the stand
taken in the quash proceedings, C.C.No.558 of 2019 was quashed. We
carefully went through the order dated 12.12.2024 quashing the criminal
proceedings. S.Vijayalakshmi did not get C.C.No.558 of 2019 quashed
on merits. S.Vijayalakshmi is therefore not justified in contesting the
writ appeal filed by Krishnaveni. In any event, since Krishnaveni only
carried out the order of her superior, we are of the view that the learned
https://www.mhc.tn.gov.in/judis
W.A.(MD)Nos.1155 of 2020, 1200 &1216 of 2019
single Judge was not justified in passing any adverse direction against
her.
22.Anitha, Inspector of Police was admittedly not on the spot.
We went through the remand report filed by Deepa. In her remand
report, Deepa had nowhere stated that she arrested S.Vijayalakshmi on
the oral instructions of Anitha. The learned counsel for the writ
petitioner drew our attention to the RTI reply issued by the Department.
To a question as to whether Deepa took any written consent from any
superior officials, it was replied that oral intimation was given by the
Inspector of Police and based on her instructions, action was taken. In
our considered view, this reply under RTI cannot furnish the basis for
coming to any adverse conclusion against Anitha. Admittedly, Anitha
did not give the said reply. She had not made any admission. It is not
known on what basis the RTI reply was given. Whether Anitha orally
instructed or permitted Deepa to arrest the writ petitioner is a question of
fact. Evidence is required to establish the same. In writ proceedings,
which are summary in nature, adverse factual conclusions cannot be
arrived at in the absence of definite and unimpeachable material.
https://www.mhc.tn.gov.in/judis
W.A.(MD)Nos.1155 of 2020, 1200 &1216 of 2019
23.We are therefore of the view that the writ appeals filed by
Anitha, Inspector of Police and Krishnaveni, Head Constable have to be
allowed. The impugned order passed by the learned single Judge is set
aside insofar as the aforesaid two appellants are concerned.
W.A(MD)Nos.1200 of 2019 and 1216 of 2019 are allowed.
24.We are however not inclined to allow the appeal filed by
Deepa, Sub Inspector of Police who arrested the writ petitioner. This is
for more than one reason. In her counter affidavit, she stated that she
received what is known as “100 call” from the control room as well as
from the Intelligence section; she rushed to the spot on 14.01.2019 at
around 08.00 p.m; her intention was to let the petitioner go from the
Police Station or give her station bail. But since S.Vijayalakshmi
attacked Krishnaveni with pen knife, she had to be arrested. But the
version set out in the remand report reads otherwise. In the remand
report, Deepa had stated that she took up investigation in Crime No.20 of
2019 that was registered on 12.01.2019 and on receiving information
about the whereabouts of Vijayalakshmi on 14.01.2019 at about 08.00
p.m, she went to the spot and arrested her. Crime No.20 of 2019 was
registered only for the offences under Sections 448, 294(b), 323 and
https://www.mhc.tn.gov.in/judis
W.A.(MD)Nos.1155 of 2020, 1200 &1216 of 2019
506(i) of IPC. They certainly did not warrant arrest. We could have
accepted the case of Deepa if she had arrested the writ petitioner in
Crime No.26 of 2019 which involved attack on Krishnaveni (Head
Constable). That is not the case here. It is well settled that not only an
applicant but also the respondent in a litigation must come to the Court
with clean hands. We are of the view that Deepa had not made a fair
disclosure of facts. The stand taken by Deepa before the learned single
Judge was not in consonance with what was stated by her in her remand
report dated 15.01.2019. For this reason, we decline relief to her.
W.A(MD)No.1155 of 2020 stands dismissed. No costs. Consequently,
connected miscellaneous petitions are closed.
[G.R.S., J.] [M.J.R., J.]
07.02.2025
NCC : Yes / No
Index : Yes / No
Internet : Yes/ No
MGA
To
1.The Director General of Police,
Dr.Radhakrishnan Salai,
Mylapore,
Chennai – 600 004.
https://www.mhc.tn.gov.in/judis
W.A.(MD)Nos.1155 of 2020, 1200 &1216 of 2019
2.South Zone Inspector General of Police,
Race Course Colony,
Reserve Line,
Madurai – 625 002.
3.The Commissioner of Police,
Madurai City,
Madurai – 625 002.
4.The Deputy Commissioner of Police (L&O),
Madurai City,
Madurai – 625 002.
G.R.SWAMINATHAN,J.
AND
M.JOTHIRAMAN, J.
MGA
W.A(MD)Nos.1155 of 2020, 1200 & 1216 of 2019
and
C.M.P(MD)Nos.6322, 10380 & 10467 of 2019
https://www.mhc.tn.gov.in/judis
W.A.(MD)Nos.1155 of 2020, 1200 &1216 of 2019
07.02.2025
https://www.mhc.tn.gov.in/judis
