Bombay High Court: In a Writ Petition seeking a writ of Mandamus, the Division Bench

comprising of S.J. Kathawalla and Bharti H. Dangre, JJ., decided that non-adherence to the
provisions of Section 46(4) of the Criminal Procedure Code would absolutely amount to illegal
arrest.
The petitioner was one of the accused in the most talked about case “PNB Scam”, it has been
contended by the petitioner that she was called for an investigation in the said case by the
respondent-CBI for which she duly cooperated with the investigation agency. Petitioner was
arrested at about 8 p.m. after which she was produced before of the Special Judge. Petitioner
claims that she had invited the attention of the Special Judge towards her case of illegal arrest
wherein she pointed out that her arrest violated the ambit of Section 46(4) of the said Act,
though the Special Judge ignored the fact of illegal arrest and proceeded by remanding the
petitioner to the custody of the respondent-CBI for a period of 14 days.
Learned counsel for the petitioner had drawn the attention of the Court by giving due
explanation of the violation of Section 46(4) of the Criminal Procedure Code in Chapter V that
the arrest was absolutely illegal in terms that it has been clearly explained in Section 46 for
“Arrest how made”. The said provision is salutary one which provides safeguard against the
arrest of a woman after sunset and before sunrise and as per the learned counsel, the safeguards
have to be strictly adhered to.
Therefore, the Hon’ble High Court on recording the contentions of the petitioner and noting
the facts and circumstances of the case, briefed about the point that the precious guarantee of
‘Life and Liberty’ enshrined in Article 21 of the Constitution of India cannot be denied to a
convict or accused on a trial and it is an obligation upon State to ensure that there is no
infringement of the right of the citizen.
Further, the Court concluded by stating that any deviation from the prescribed procedure in the
manner of arrest can therefore, be not countenanced and is liable to be declared as illegal.
Allowing the writ petition , it was held that the officials who were responsible for the violation
of the Section 46(4) of the Criminal Procedure Code, for arresting the accused after sunset, will
be liable for disciplinary proceedings. [Kavita Manikikar v. CBI, 2018 SCC OnLine Bom 1095,
dated 10-05-2018]

Madras High Court

Roshan Beevi And Ors. vs Joint Secretary To Government Of ...
Equivalent citations: 1984 (15) ELT 289 Mad

Is detention of a person by the customs officers for the purpose of inquiry or interrogation or
investigation beyond 24 hours without producing him before a Magistrate, violative of Article
22 of the Constitution of India ?

Mr. Abdul Kareem, learned counsel appearing for the writ petitioners in W. P. Nos. 5016/83
and 5244/83, drew our attention to the various provisions of the Sea Customs Act, 1878 and
the corresponding and other allied provisions of the Customs Act, 1962, as well as the various
Provisions relating to arrest coming under Chapter IV, Cr.P.C., and submitted that the moment
the personal liberty of a person and the freedom of his movement are restrained consequent
upon his being brought under the custody of an authority clothed with the power of arrest, he
should be deemed to have been arrested within the meaning of Section 46, Cr.P.C., and that
though the subject of preventive detention is specifically dealt with in Article 22 of the
Constitution, the requirement of Article 21 has nevertheless to be satisfied and that Sections
107 and 108 of the Customs Act vest an uncontrolled and unbridled power in an arbitrary,
unreasonable and un-guided manner, on the executive in implementing these provisions at their
sweet will, which vesting is violative of the principles of natural justice and Article 21, and so
the procedure attending upon such power of detention should conform to the mandate
of Article 21 in the matter of fairness, justness and reasonableness and that the moment a
person is arrested under Section 104(1) of the Customs Act, he must, without unnecessary
delay, be taken to a Magistrate and that any prolonged delay in violation of Article 22(2) makes
such detention illegal and hence any statement recorded from such arrested person or persons
should be held to have been tainted with illegality as having been extorted under duress,
coercion or undue influence and such a statement should not form the basis of the subjective
satisfaction to be drawn by the detaining authority.

The above decision fortifies the view that the actual seizing or touching of the body of the
person to be arrested is not necessary in a case where the arrester by word brings to the
accused's notice that he is under compulsion and thereafter he submits to that compulsion. This
is in conformity with the modality of the arrest contemplated under Section 46, Cr.P.C.
wherein also it is provided that the submission of a person to be arrested to the custody of the
arrester by word or action can amount to the custody of the arrester by word or action (and)
can amount to an arrest. The quintessence of the decision in Alderson v. Booth, (1969-2 All
ER 271) is that there must be an actual seizing or touching, and in the absence of that, it must
be brought to the notice of the person to be arrested that he is under compulsion, and consequent
upon it, the said person should submit to that compulsion, and then only the arrest is
consummated. Reference also could be made to decision in the State of U.P. v. Deoman, , in
which it has been ruled "submission to the custody by word or action by a person is sufficient"
so as to constitute arrest under Section 46, Cr.P.C. In paragraph 57 of the same judgment (at
page 1143) : (at p. 1528), it has been observed that, "S. 46, Cr.P.C. provides that in making an
arrest, the police officer or other person making the same shall actually touch or confine the
body of the person to be arrested unless there be a submission to the custody by word or action."