Court’s Decision
The Bombay High Court granted bail to the applicant, a former Chief Executive Officer of a cooperative bank accused in a ₹242 crore bank fraud case. The Court held that the arrest was in violation of Section 46(4) of the Code of Criminal Procedure (now Section 43(5) of BNSS, 2023), as the arrest occurred after sunset without the prior permission of a Judicial Magistrate. It was also found that the grounds of arrest were not communicated to her relatives, violating Article 22(1) of the Constitution. These procedural lapses rendered the arrest illegal, warranting the grant of bail despite the gravity of the economic offence.
Facts
The applicant, previously employed as a clerk, then branch manager, and finally as CEO of Babaji Date Mahila Sahakari Bank, was arrested on 30 September 2024 and has remained in custody since. A report from a Special Auditor alleged that loans were illegally sanctioned by her in favour of her husband and relatives without the approval of the Board of Directors. These actions resulted in a financial loss of ₹1.88 crore, with the total fraud reported at ₹242.31 crore involving approximately 37,000 depositors. The applicant was arrested for offences under several provisions of the Indian Penal Code and the Maharashtra Protection of Interest of Depositors (MPID) Act, 1999.
Issues
- Whether the applicant’s arrest after sunset without judicial permission violated statutory and constitutional safeguards.
- Whether the non-communication of grounds of arrest to the applicant’s relatives rendered the arrest illegal.
- Whether the applicant was prima facie involved in the commission of the economic offence.
Petitioner’s Arguments
The applicant’s counsel argued that there was no direct evidence of her involvement in the offence beyond allegations linked to her husband’s loan transactions. The auditor’s report, it was claimed, did not attribute specific misconduct to the applicant. It was also asserted that the applicant’s arrest at 10:39 PM was illegal as it was conducted after sunset without permission of a Judicial Magistrate, violating Section 46(4) of the CrPC and corresponding provisions under BNSS, 2023. The grounds of arrest were allegedly not communicated to her relatives, infringing Article 22(1) of the Constitution. The applicant relied upon the Supreme Court’s ruling in Vihaan Kumar v. State of Haryana and Aleksander Kurganov v. State of Maharashtra.
Respondent’s Arguments
The State opposed the bail, asserting that the applicant, in her capacity as CEO, was responsible for supervising and disbursing loans. Loans were issued in her husband’s and relatives’ names without Board approval, and documents pertaining to the loans had been destroyed, contrary to RBI’s eight-year record retention rule. It was further submitted that the misappropriated loan amounts were transferred to her husband’s account, evidencing her complicity. The case involved serious socio-economic offences and affected thousands of depositors, justifying continued detention.
Analysis of the Law
The Court analysed Section 46(4) of the CrPC and corresponding BNSS provision, which mandates that women cannot be arrested after sunset or before sunrise unless in exceptional cases with prior Magistrate’s permission. The provision, rooted in the 135th and 154th Law Commission Reports and reinforced by the amendment of 2005, was considered mandatory in nature.
The Court reiterated that Article 21 and 22(1) provide for the protection of life and liberty and the right to be informed of grounds of arrest. It placed emphasis on the requirement that such grounds must also be conveyed to relatives to enable effective legal defence.
Precedent Analysis
- Christian Community Welfare Council of India v. State of Maharashtra (1995 CRILJ 4223) – The Court reiterated that no female shall be arrested without a lady constable present and not after sunset and before sunrise unless exceptional circumstances are demonstrated.
- Bharati S. Khandhar v. Maruti Govind Jadhav (MANU/MH/2076/2012) – The arrest of a woman at 8:45 PM without magistrate’s permission was held illegal.
- Vihaan Kumar v. State of Haryana and Anr. (2025 SCC OnLine SC 269) – The Supreme Court held that information about arrest is not the same as communication of the grounds of arrest. Failure to communicate grounds of arrest violates Article 22(1).
- Y.S. Jagan Mohan Reddy v. CBI (2013) 7 SCC 439 – Economic offences must be viewed seriously; however, the procedural lapses in arrest procedures override such considerations in the present case.
Court’s Reasoning
The Court found that multiple documents in the chargesheet showed conflicting arrest timings – one indicating 10:39 PM, others suggesting 5:30 PM. This contradiction and absence of record showing prior permission from a Judicial Magistrate led the Court to hold that arrest was illegal. Further, while one relative had been informed of the arrest, the grounds of arrest were not communicated. Relying on Vihaan Kumar, the Court held that such omission violated Article 22(1). Despite the applicant’s alleged involvement in a large-scale economic offence, the Court emphasized that procedural safeguards cannot be bypassed. The right to life and liberty is paramount.
Conclusion
The High Court allowed the bail application, holding the arrest of the applicant was in violation of statutory and constitutional safeguards. Bail was granted with stringent conditions including a ₹1 lakh bond, restricted movement, regular police station attendance, and cooperation with the investigation.
Implications
This judgment reaffirms the inviolability of personal liberty under Article 21 and the procedural safeguards under the BNSS/CrPC and Constitution, even in cases involving serious economic offences. It signals to investigating agencies the non-negotiable nature of compliance with arrest procedures, especially when dealing with women accused.
Cases Referred
- Christian Community Welfare Council v. State of Maharashtra – Highlighted custodial violence and necessity of arrest safeguards for women.
- Bharati S. Khandhar v. Maruti Govind Jadhav – Held arrest of woman at night without Magistrate’s permission illegal.
- Vihaan Kumar v. State of Haryana – Clarified distinction between arrest information and communication of arrest grounds.
- Y.S. Jagan Mohan Reddy v. CBI – Laid down parameters for bail in economic offences but balanced here with procedural safeguards.
FAQs
1. Can a woman be arrested after sunset without Magistrate’s permission?
No. Section 46(4) of the CrPC (now Section 43(5) of BNSS, 2023) mandates that women cannot be arrested after sunset without prior permission from a Judicial Magistrate, except in exceptional circumstances.
2. What if the grounds of arrest are not communicated to the family of the arrested person?
As per Vihaan Kumar v. State of Haryana, not communicating the grounds of arrest to the relatives violates Article 22(1) and renders the arrest illegal.
3. Is procedural illegality enough to grant bail in economic offence cases?
Yes. Even in serious economic offences, procedural violations such as illegal arrest can lead to bail, as fundamental rights under Articles 21 and 22 must be upheld.