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Under Article14 of Indian
constitution men and women are equal but simultaneously
Article15
(3) empowers the state to make provisions in favour of women owing
to her vulnerability. Women are more prone to crime owing to
biological facts. To remove these disabilities and to countenance
her modesty legislature enacted many enactments and courts bridge
the gap, if any provided by legislation.
In Christian Community Welfare
Council of India v. State of Maharastra (1995 Cr LJ 4223 Bom.)
Bombay High Court, to uphold the dignity of
women, held that no female persons shall be detained or arrested
without
the presence of lady constable and in no case, after sunset and
before
sunrise. But apex court in appeal (State of Maharastra v.
Christian
Community Welfare Council of India AIR 2004 SC 7), whilst agreeing
with
the object behind the direction issued by high court, opined that
strict
compliance of the said direction, in the given circumstance, would
cause
practical difficulties to the investigating agency and might give
room
for evading the process of law by unscrupulous accused. Apex court
further observed that while it is necessary to protect the female
sought
to be arrested by the police from police misdeeds. But apex court
said
that it may not be always possible and practical to have the
presence of
a lady constable when the necessity for such arrest arises. Therefore
apex court decided to modify the direction issued by Bombay High
Court
without disturbing the object behind the same and held that
arresting
authority, while arresting female person, all efforts should be
made to
keep a lady constable present but in circumstances where the
arresting
officers is reasonably satisfied that presence of a lady constable
is
not available or possible and / or the delay in arresting caused
by
securing the presence of a lady constable would impede the course
of
investigation such arresting officer for reasons to be recorded
either
before the arrest or immediately after the arrest be permitted to
arrest
a female person for lawful reasons at any time of the day or night
depending on the circumstances of the case even without the
presence of
a lady constable.
But court of Criminal Procedure (Amendment) Act, 2005 seems to be
midway
between absolute immunity invented by Bombay High Court and
practical
approach adopted by Supreme Court, as newly inserted (by amendment
of
2005) sub-section 4 in section 46 of Code of Criminal Procedure
1973
tells that in exceptional circumstances woman can be arrested
after
sunset but by woman officer with prior permission of judicial
magistrate. Newly inserted (by amendment of 2005) Sub-section 4 in
Section 46:
(4) Save in exceptional
circumstances, no women shall be arrested after sunset and before
sunrise, and where such exceptional circumstances exit, the woman
police officer shall, by making a written report, obtain the prior
permission of the judicial magistrate of the first class within
whose local jurisdiction the offence is committed or the arrest is
to be made.
Amendment in section 46 unequivocally ratify the view of apex
court that
in exceptional circumstances woman can be arrested after sunset
and
before sunrise but newly inserted provision over-rides the
judgment by
making it mandatory that arrest after sunset and before sunrise
can be
made only by women officer with prior permission of judicial
magistrate
of first class. But newly inserted provision does not make stance
clear about arrest of female at day time: can she be arrested by
male officer at day time.
When enactment is mute about this proposition then apex court
ruling
that in exceptional circumstances women can be arrested by a male
officer will prevail. So, at day time, in exceptional
circumstances,
women can be arrested by a male officer.
Recently,
Bina Ramani challenged her arrest in violation of newly
inserted (by amendment of 2005) provision, sub-section 4 in
section 46
of code of criminal procedure, before Additional Metropolitan
Magistrate
Ms. Kamini Lau but Ms. Lau got rid of matter by saying that she
could not say anything about it, as there were ambiguities in the
law, which only the higher court had the power to decide. What are
ambiguities to be decided
Bina Ramani
case make it mandatory for us to contemplate about
repercussions of violation of procedure enumerated in newly
inserted
(by amendment of 2005) provision, sub-section 4 in section 46 of
Code
Of Criminal Procedure 1973, and court directives. Apex court in
Mobarik Ali Ahmed V. State Of Bombay (AIR 1957 SC 857) held that a trial
will
not be void simply because the provisions relating to arrest have
not
been fully complied with. Apex court further observed that if the
court
has jurisdiction to try an offence, any illegality or irregularity
in
arrest will not oust the jurisdiction of the court to try the
offence.
In Subramania Chetty Re (Air 1941 Mad. 181) court opined that the
question whether the police officer making the arrest was acting
within
or beyond his powers in effecting the arrest, does not effect the
question whether the accused person was guilty or not guilty of
the
offence with which he is charged.
A moot point is what would be the implications of enactment of
sub-section 4 of section 46?
Article 21 of Indian constitution says: 21. Protection of life and personal liberty.- No person shall be
deprived of his life and personal liberty except according to
procedure established by law.
It means arrest made in breach of law can be challenged under
Article
21 but it appears from above- mentioned decided authorities that
the
accused can not be released on this ground nor it can be treated
as
ground for bail. But compensation may be claimed for violation of
sub-section 4 of section 46. Question may be raised whether
article 21
can be invoked, if woman is arrested by male officer without any
mala
fide intention on his part and without any filthy activity.
Question also arises if woman is arrested by female officer after
sunset
and before sunrise in breach of sub-section 4 of section 46 then
what
would be the repercussion. Still can she claim compensation?
In pursuant of above-mentioned propositions it seems that newly
inserted
sub-section 4 is directory in nature owing to absence of
repercussions
of breach of provisions.
Now days when there is upsurge in crime by women, indulgence of
women in
drug trafficking, non availability of lady police officers,
implementation of such kind of provision is not practical but at
the
same time we can not expose the women, most vulnerable group of
society,
to danger of masculine misdeeds.
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The
author can be reached at:
vikaslegaindia@legalserviceindia.com /
