1 of 10 907-WP-4381-2026 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION WRIT PETITION NO. 4381 OF 2026 Nivedita Apul Sharma ..Petitioner Versus 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. supriya SUPRIYA PRAMOD JAWARE Digitally signed by SUPRIYA PRAMOD JAWARE Date: 2026.09.03 17:40:43 +0530 2 of 10 907-WP-4381-2026 1285 of 2026 of Juhu Police Station registered on 14th 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 24th 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 3 of 10 907-WP-4381-2026 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 4 of 10 907-WP-4381-2026 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, 5 of 10 907-WP-4381-2026 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 14th 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 6 of 10 907-WP-4381-2026 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 7 of 10 907-WP-4381-2026 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 8 of 10 907-WP-4381-2026 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 9 of 10 907-WP-4381-2026 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. 10 of 10 907-WP-4381-2026 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.)