This article is written by Rishika Rathore, from Jagran Lakecity University. It deals with the procedure of arresting an accused woman, and her rights after being arrested while highlighting the landmark cases.
Table of Contents
We all must have heard the rule, “women cannot be arrested before sunrise and after sunset”. Notably, the abstract word here is “darkness”. Why should any accused woman be kept away from the darkness? The answer is to protect the “accused” woman from becoming a “victim”. Thus, even at the time of an arrest where the accused is a woman, her safety is a priority for the fair trial of the accused. To ensure that, amendments in Section 46 of the Criminal Procedure Code, 1973, were made (Section 6) in 2005 to make a very significant point regarding the safety of women. Moreover, the UN Women annual report 2011 has also provided certain incentives and constructive ideas to foster women’s empowerment and gender equality around the world. This article explores the procedure for arrest of women in India as well as her rights during that procedure while going through some landmark cases in which the rights of women, during the trial, have been violated.
The arrest of a person
The provisions for “arrest of persons” have been provided in Chapter V i.e. Section 46 to Section 60A, of the Criminal Procedure Code, 1973. The said chapter deals with the detailed process of fair arrest. As per the judgment of Madras High Court in the case of Roshan Beevi vs. Joint Secretary, Government of Tamil Nadu (1983), it was held that there cannot be a second opinion regarding the method and execution of arrest of a person intended to be arrested. It should be performed only in the manner prescribed in the statute and the other methods of performance are forbidden, otherwise, the whole purpose of Section 46 (CrPC) would be nugatory and functionless. Therefore, a fair arrest should be the ultimate motive of the police officers
Procedure for the arrest of a woman
One of the prime motives of the legislature is to safeguard the woman during her arrest. The basic procedure regarding the arrest of a woman has been laid down in Section 46 of the Criminal Procedure code 1973, and Section 46(4) (amended under Section 6) of the Code of Criminal Procedure (Amendment) Act, 2005. Section 46(4) says that out of the ordinary circumstances, no women shall be arrested after sunset and before sunrise, and when such exceptional circumstances exist, the woman police officer, by making a written report, should obtain the prior permission of a first-class Judicial Magistrate within whose local jurisdiction the offense is committed or the arrest is to be made. Moreover, as per National Human Rights Commission Guidelines, women police officers should be associated when a woman is being arrested.
Section 160(1) – As per the provision of Section 160(1), women should not be called to the police station or to any other place other than their place of residence for questioning. It also says that neither a male under age 15 nor any woman shall be required to attend any place other than the place where they reside. In the case of Sheela Barse vs. State of Maharashtra (1983), the Hon’ble Supreme Court held that it is the duty of police officers making arrests to ensure that arrested females are segregated from men and kept in female lock-up in the police station. In the absence of separate lock-ups, the women should be kept in a separate room.
The search of an arrested person within his/her place of residence is a significant part of the arrest procedure. Under Section 47 and Section 51, the process of executing the search has been provided along with separate provisions for women. The person, place, or both can be searched by authorities who are executing the arrest.
Section 46(1) – “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”. Provided that when a woman is to be arrested, her submission to custody shall be taken on an oral intimation unless the circumstances indicate to the contrary 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 47(2) – This Section holds that the police officer or any other person, whoever is executing the arrest warrant comes to know that the premises to be searched, is the original residence of women, who according to custom does not appear in public, then such police officer or person shall appoint a notice to that woman regarding her right to cancel the search, before initiating the search.
Section 51(2) – As per the provision of Section 51(2) of Code of Criminal Procedure, 1973, whenever it is necessary to search the women, it should be performed by another female with strict decency.
Medical examination of an arrested woman
According to Section 53(1) of CrPC, if there is a reasonable suspicion that the medical examination of an accused person would help in the procurement of evidence related to the offense committed, the registered medical practitioner can carry out such examination at the request of a police officer, not below the rank of sub-inspector, or any other person acting in good faith. However, if the accused person brought for medical examination is a female, the provision is slightly different.
Section 53(2) – As per this section, whenever a woman is being examined, the examination shall be made only by, or under the supervision of a female registered medical practitioner. The definition of registered medical practitioner has been clearly stated in clause (b) of Explanation to Section 53. It states that a medical practitioner is a “registered medical practitioner” if he or she possesses the necessary qualifications mentioned under Section 2(h) of the Indian Medical Council Act, 1956 and his/her name has been enrolled in a State Medical Register.
Other than these provisions, it is given that women should be guarded by female constables or police officers while being questioned or arrested. All necessary prenatal and postnatal care should be provided to females who are arrested. Restraints for pregnant women should be used as a last resort, keeping in mind that their safety and the safety of their foetuses should never be compromised or never be put at risk. A woman should never be restrained during labour.
Rights of an arrested woman
It is an important task to maintain the modesty of a woman, even if she is accused of an offense. Therefore, certain general rights have been provided to arrested women along with some specifically allotted rights.
Right to free legal aid
The right to free legal aid has been provided under Article 39A of the Constitution. This right accompanies those people who are incapable of bearing the expenses of civil or criminal proceedings. It shall be the responsibility of the State to provide that person with adequate legal assistance at State’s expenses for proper representation in the court of law. This tree-like provision extends its branches to all sections of society, including women.
According to Section 304 of CrPC, the State Legal Services Authorities shall bear the cost of legal proceedings including the cost of printing and translation, and fees of the appointed legal counsel. If a woman is accused of an offense, she is entitled to exercise the right of free legal aid and hence, ensure her proper representation in the Court. This right was considerably exercised in Hussainara Khatoon v. State of Bihar (1979), where the Apex Court held that if an accused is not able to afford legal services, then he has a right to free legal aid at the cost of the State.
Right to be informed regarding the grounds of arrest and bail
Under the provisions of Section 50(1) of CrPC, the arrested person is entitled to gather information regarding the grounds of his/her arrest, and the police officer or any other person executing the arrest shall communicate the same to him/her. As per the judgement in D.K. Basu vs. State of West Bengal (1986), this right is exercisable by accused men and women as well. Moreover, as per Section 50(2) of CrPC, 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.
Right against manhandling and handcuffing
The submission to custody on oral intimidation of arrest shall be presumed when executing the arrest of an accused woman, provided under Section 46(1) of CrPC. Moreover, if touching an accused woman is necessary to execute the process of her arrest, it should be performed only by a female police officer other than in situations of absolute necessity. In the case of Vibin P.V. vs. State of Kerala (2012), it was observed that it is the duty of the law to protect an individual from torture and abuse by the police and other law enforcing officers.
Right to inform relatives or friends
While arresting a woman or man, the police officer, performing the arrest, has the duty to immediately provide the information regarding such arrest and place where the arrested person is being held, to any of the relatives or friends of the arrested person, whosoever he or she nominates for disclosure of the information.
Rights during detention
A police officer is not authorized to detain an arrested person for more than 24 hours (which excludes time of travelling) in his custody, under normal circumstances. As mentioned earlier, in the case of an arrested woman, the arrangements of her custody should be made with strict decency. In keeping with moral norms, arrested men and women cannot be kept in the same lockup, concerning the modesty of a woman. In the case, Gandharba Rath vs. Aparti Samal (1959), Orissa High Court observed that Section 56 makes it compulsory for police officer to make the arrest in a written order while specifying the person to be arrested and the offence or other cause for which the arrest is to be made, especially in cases where a police officer has deputed a subordinate to arrest without warrant.
Landmark cases of women’s rights
Bharati S. Khandhar v. Maruti Govind Jadhav (2012)
In the landmark case of Bharati S. Khandhar vs. Maruti Govind Jadhav (2012), the petitioner was aware of the provision of Section 46(1) but was not unaware about the provision of Section 46(4) of the Code of Criminal Procedure, following which she was arrested after sunset and was mistreated by the police officers. The Hon’ble Bombay High Court directed the Mumbai Commissioner of Police to hold an inquiry against the concerned police officers for illegal detention and arrest of the petitioner from 5:30 pm which was after sunset. The Director-General of Police, State of Maharashtra, and the Commissioner of Police, Mumbai were directed to issue instructions within a period of two weeks to all the concerned officers to follow the mandate of sub-section (4) of Section 46 of the Code of Criminal Procedure, 1973, stating that arrest any woman accused of any offense should not be done after sunset and before sunrise.
Sheela Barse v. State of Maharashtra (1983)
In Sheela Barse vs. State of Maharashtra (1983), a journalist Sheela Barse wrote a letter complaining of custodial violence to women prisoners while confined in the police lock-ups in the city of Mumbai, which was later treated as a Writ Petition. Following this case, various directions were issued to the State of Maharashtra conferring protection to women prisoners in police lockups.
The constant debates and discussions about the rights of women, gave rise to various amendments in the Criminal Procedure Code 1973, regarding women’s rights during and after the process of arrest. For an accused, it is essential to know the proper procedure, guidelines, and rights while getting arrested. It becomes even more important if the accused is a woman as women are more vulnerable to social evils. To provide a safeguard to arrested women, the Criminal Procedure Code 1973 laid down and amended certain sections related to strict guidelines, procedures, and rights of an arrested woman. If these sections had not existed, many women would have become victims of social or physical harassment, abuses, exploitations, and many more afflictions. Every person has the right to live with dignity, no matter whether the person is an accused or a victim.
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