NIVEDITA APUL SHARMAversusSTATE OF MAHARASHTRA AND ORS

                        supriya                           1 of 10                907-WP-4381-2026


                                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                         CRIMINAL APPELLATE JURISDICTION

                                           WRIT PETITION NO. 4381 OF 2026
SUPRIYA
PRAMOD                Nivedita Apul Sharma                                     ..Petitioner
JAWARE
Digitally signed by
SUPRIYA
                                  Versus
PRAMOD JAWARE
Date: 2026.09.03
17:40:43 +0530
                      The State of Maharashtra & Ors.                          ..Respondents


                                                       __________


                      Mr. Yashwardhan Tiwari a/w Ms. Deepa Panicker for the Petitioner.
                      Ms. M. M. Deshmukh, APP for the Respondent/State.
                                                       __________

                                            CORAM : SARANG V. KOTWAL &
                                                    RANJITSINHA RAJA BHONSALE, JJ.

                                            DATE     : 02 SEPTEMBER 2026

                      P. C. :-

                      1.               This Petition is filed with a prayer to declare the

                      Petitioner’s arrest as illegal and for directions to release her

                      forthwith from custody.

                      2.               Heard, Mr. Yashwardhan Tiwari a/w Ms. Deepa

                      Panicker for the Petitioner, Ms. M. M. Deshmukh, APP for the

                      Respondent/State.

                      3.               The Petitioner was arrested in connection with C.R. No.
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1285 of 2026 of Juhu Police Station registered on 14 th August

2026 under Sections 308(2), 308(5), 351(3), 61(2) and 3(5) of

BNS.

4.         The FIR is lodged by one Het Patel. The gist of the FIR

is that, the informant’s brother-in-law (sister’s husband) was

owner of an IT Company having its main office at Pune. The

informant’s brother-in-law and the Petitioner were knowing each

other closely. They used to travel to various cities and used to stay

in the same hotel. The informant and his family were aware of this

fact. His brother-in-law had extended financial help to the

Petitioner on many occasions. The Petitioner was demanding

around Rs. 4 to 5 crores from him. She had lodged C.R. No. 111 of

2026 on 23rd July 2026 against the informant’s brother-in-law

under Sections 64, 74, 75(2), 76 and 333 of BNS. The informant

contacted his brother-in-law’s friend Lalit and requested him to

find out the details. Lalit contacted the Petitioner on 24 th July

2026. She told Lalit that she was not getting the money and only

false assurances were given to her. She demanded Rs. 4 crores for

withdrawing the case. When the informant and his family came to
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know about her intention, and they decided to record the further

calls between Lalit and the Petitioner. Lalit met the Petitioner on

29th July 2026 at about 9.00 p.m. She was accompanied by two

persons. She demanded Rs. 2,50,00,000/-. She issued threats. Lalit

sought some time. On 11th August 2026, the Petitioner again made

a phone call and demanded money from Lalit. She demanded Rs. 5

lakhs as advance. She had given a telephone number on which

that amount was to be transferred. She accepted that, the amount

was received from Lalit. On this basis, the FIR is lodged.

5.          The investigation commenced and according to the

police case, they laid a trap on 14th August 2026 at about 3.00

p.m., when the Petitioner came to Juhu to collect the extortion

amount. According to the Police, she was caught at that time. A

panchnama was drawn. She was shown arrested at 11.45 p.m. on

14th August 2026 at Juhu Police Station. She was arrested by the

Anti-Extortion Cell, D.C.B., C.I.D., Mumbai.

6.          Learned Counsel appearing for the Petitioner referred

to Section 43(5) of BNSS and contended that, the Police Officers

could not have arrested the Petitioner after sunset without
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following the mandate of Section 43(5) of BNSS.

7.         Learned Counsel relied on the observations of a

Division Bench of this Court in the case of Kavita Manikikar Vs.

Central Bureau of Investigation and anr., reported in 2018 SCC

OnLine Bom 1095. He submitted that, the Division Bench has held

in that case that, if there is violation of these mandatory

provisions, the arrest is illegal and the arrested women accused is

required to be released forthwith.

8.         Learned APP on the other hand submitted that, the

procedure was properly followed. She submitted that, the

Petitioner had accepted the bag containing money at around 4.00

p.m. Learned APP submitted that, before going there, the Police

Officers had conducted the pre-trap panchnama. The trap

panchnama was in respect of the actual incident of acceptance of

money. The Police had reached the spot at around 1.00 p.m. The

entire procedure went on for quite some time and the trap

panchnama was over at 8.00 p.m. on 14th August 2026. Learned

APP relied on the Application made by Senior Police Inspector,

D.C.B., C.I.D., Mumbai to the Additional Chief Judicial Magistrate,
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37th Court, Esplanade, Mumbai. This Application was for

permission to arrest the Petitioner because the procedure was

likely to take place beyond sunset and, therefore, the permission of

learned Magistrate was necessary. Learned APP relied on the said

Application dated 14th August 2026. Learned Magistrate allowed

that Application by passing the following Order:-

     “Perused the Application. Read contents. In view of
     statement and considering the allegations in the situation,
     permission granted subject to following all procedural
     mandates for the purpose of investigation of offence.”

            Learned APP therefore submitted that, after obtaining

the necessary permission from the learned Magistrate, the

Petitioner was put under arrest at 11.45 p.m. and hence, there was

no violation of any mandatory provision as claimed by the learned

Counsel for the Petitioner.

9.          We have considered these submissions. The pre-trap

panchnama was conducted at about 12.00 p.m. on 14 th August

2026. Thereafter, the panchas and the Police party went to Juhu

where the Petitioner was expected to come to collect the amount.

It is mentioned in the trap-panchnama that, Lalit and the Petitioner
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were travelling in one car. The first informant and Hiren Ramani

were in another car. The bag containing the amount was kept in

the Baleno car in which the Petitioner and Lalit were travelling.

The Police intercepted the Baleno car. The Petitioner refused to

come out of the car and started creating trouble. Therefore, the car

was taken in a parking space of a nearby by building. Some

women Police Officers from the raiding party used the necessary

force to take the Petitioner in custody. The procedure for

panchnama went on for sometime and panchnama mentions that,

it was over at 8.00 p.m.

10.        The Application made to the learned Magistrate does

not mention the time at which the Application was made.

However, the tenor of the Application indicates that, it was made

before sunset because it was mentioned in the Application that by

the time she was put under arrest, it would be sunset. The arrest

panchnama itself shows that, she was arrested at 11.45 p.m. on

14th August 2026. Interestingly, the Application before the

Magistrate bears signature of Ravindra Vani, Senior Inspector of

Police, Anti-Extortion Cell, D.C.B., C.I.D., Mumbai. The arrest form
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bears the signature of PSI Anil Wayal. Both these documents do

not show signature of any women Police Officer. Significantly,

there is nothing in the record produced before us to show that any

women Police Officer was present when the Petitioner was arrested

in the Police Station. In this context, Section 43(5) of BNSS is

important which reads thus :-

     “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 Magistrate of the first class within whose local
     jurisdiction the offence is committed or the arrest is to be
     made.”


           Thus, from the record we find that, there is a violation

of Section 43(5) of BNSS. In a similar situation, a Division Bench

of this Court in the case of Kavita Manikikar had given benefit to

the accused. In that case, paragraph 21 of the said Judgment reads

thus:-

     21. Except expressing that there was a strong suspicion of
     the petitioner being absconding, no exigency has been
     pointed out in the affidavit justifying non-compliance of
     mandatory requirement in sub-section (4). In any case, if
     such an exigency were in existence, recourse could have
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      been sought to the exception carved out in Section 46(4)
      itself. However, none of this exercise has been undertaken.
      Further, the arrest is not made by the female Police Inspector
      and it can be seen that the police inspector making arrest is
      D. Damodaran, Inspector of Police, CBI, BS&FC, Mumbai.
      The presence of the other lady police official in the office of
      the CBI at the time of effecting arrest or presence of her
      husband is of no consequence.

            The observations are squarely applicable to the present

case before us. Therefore, the Petitioner deserves similar relief.

11.         In this view of the matter, we are inclined to allow this

Petition. However, it is to be noted that, there is a prayer for

compensation. We have already noted that, when the trap was

made, there were women Police Officers in the raiding party and

they had overpowered her. Therefore, it was not as if the male

Police Officers had taken her in custody at the spot. There could be

some lapses but we do not find that those lapses were intentional

and, therefore, we are not inclined to grant any compensation or

damages to the Petitioner. We are not inclined to issue any

directions for taking action against the Police Officers.

12.         Having observed thus, it also to be noted that in

Kavita Manikikar’s case the Division Bench has taken an
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important view that, after the release of the detenu in that case,

the Investigating Agency was not precluded from arresting the

Petitioner in that case if the investigation warranted so by

following the due procedure of the law. The observations are in

paragraph 34 which read thus :-

     34. In result, of the aforesaid discussion, the writ petition is
     allowed in terms of prayer clause (a) and it is held that the
     arrest of the petitioner is illegal and contrary to the
     provisions of Section 46(4) of the Code of Criminal
     Procedure. However, the CBI is not precluded to arrest the
     petitioner if investigation warrants so, by following the due
     procedure of law.

           We are inclined to take a similar view, since we are

following Judgment in Kavita Manikikar’s case. Hence, the

following Order :-


                              ORDER


      1.    The Petitioner be released forthwith in connection

            with C.R. No. 1285 of 2026 of Juhu Police Station.


      2.    It is made clear that, if the investigation warrants, the

            Investigating Agency is not precluded to arrest the

            Petitioner by following the due procedure of law.
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    3.   The Petition is disposed of.


    4.   Parties to act on the copy downloaded from the website

         of this Court.



(RANJITSINHA RAJA BHONSALE, J.)          (SARANG V. KOTWAL, J.)