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Contemporary and Applied Approach of Criminal Justice System: Rights Of Female Accused

We are in an era that interprets gender equality. Simultaneously, we must provide certain privileges to vulnerable sections such as women, children, and disabled persons. Within this category, women accused of crimes also have specific privileges that must be adhered to during criminal proceedings.

We have likely heard the rule:
"A woman cannot be arrested before sunrise or after sunset." Notably, the abstract term here is "darkness." Why should an accused woman be protected from darkness? The answer is to prevent the "accused" woman from becoming a "victim." Therefore, even at the time of arrest, if the accused is a woman, her safety is a priority for the fair trial of the accused.

To ensure this, amendments were made to Section 46 of the Criminal Procedure Code 1973, specifically Section 6 in 2005, to emphasize the safety of women. Furthermore, the UN Women Annual Report 2011 provided incentives and constructive ideas to foster women's empowerment and gender equality worldwide. This article examines the arrest procedures for women in India, their rights during these procedures, and some landmark cases where women's rights during trial were violated.

Abstract: This article aims to raise awareness about the provisions available for female accused and the procedures to be followed when the accused is a woman. It discusses the privileges established for them in India and from an international perspective. Additionally, this article examines the necessity of these privileges for women accused as opposed to men accused. It also explores how prevailing laws have been misused by women. The article aims to discuss that the privileges granted to women in criminal proceedings are subject to sexual discrimination against men and offers further suggestions to protect the female accused from becoming victims at the hands of higher officials, police officers, jail wardens, and co-accused.

The Arrest of a Person:
The provisions for the "arrest of persons" are outlined in Chapter V, i.e., Sections 46 to 60A, of the Criminal Procedure Code, 1973. This chapter details the process of a fair arrest. According to the High Court of Madras's judgment in the case of Roshan Beevi vs. Joint Secretary, Government of Tamil Nadu (1983), there can be no second opinion regarding the method and execution of the arrest of a person intended to be arrested. It must be performed only as prescribed by the statute; any other method is forbidden. Otherwise, the entire purpose of Section 46 (CrPC) would be rendered nugatory and functionless. Therefore, ensuring a fair arrest should be the ultimate motive of the police officer.

Procedure for the Arrest of a Woman:
One of the legislature's primary motives is to safeguard women during their arrest. The basic procedure for the arrest of a woman is laid down in Section 46 of the Criminal Procedure Code, 1973, and Section 46(4) as amended under Section 6 of the Code of Criminal Procedure (Amendment) Act, 2005. Section 46(4) states that, barring extraordinary circumstances, no woman shall be arrested after sunset or before sunrise. In such exceptional circumstances, a woman police officer must make a written report and obtain prior permission from a First Class Judicial Magistrate within whose local jurisdiction the offense was committed or the arrest is to be made.

Furthermore, as per the National Human Rights Commission guidelines, a woman police officer should be associated when a woman is being arrested. Section 60(1) stipulates that, according to the provision of Section 160(1), a woman should not be called to the police station or any place other than her residence for questioning. It also states that neither a male under 15 nor any woman shall be required to attend any place other than where they reside. In the case of Sheila Barse vs. State of Maharashtra (1983), the Honorable Supreme Court held that it is the duty of the police officer making an arrest to ensure that arrested females are segregated from men and kept in a female lock-up at the police station. In the absence of separate lock-ups, the woman should be kept in a separate room.

Search Procedure:
The search of an arrested person within his/her place of residence is a significant part of the arrest procedure. Under Sections 47 and 51, the process of executing the search is provided, along with separate provisions for women. The person, place, or both can be searched by authorities executing the arrest.

Section 46(1) states:
"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 is a submission to custody by word or action." However, when a woman is to be arrested, her submission to custody shall be presumed upon oral intimation unless the circumstances indicate otherwise, and, unless the circumstances require or the police officer is female, the police officer shall not touch the accused woman to make the arrest.

Section 47(2) holds that if the police officer or any other person executing the arrest warrant learns that the premises to be searched is the residence of a woman who, according to custom, does not appear in public, then such police officer or person shall inform the woman of her right to refuse the search before initiating it.

Section 51(2):
As per the provision of Section 51(2) of the Criminal Procedure Code, 1973, whenever it is necessary to search a woman, it should be performed by another woman with strict decency.

Medical examination of Arrested woman:
According to Section 53(1) of the CRPC, if there is reasonable suspicion that the medical examination of an accused person would indeed aid in the procurement of evidence related to the offense committed, a registered medical practitioner may carry out such an 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 brought for medical examination is female, the provision is slightly different as per Section 53(2). In this case, 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 a registered medical practitioner is clearly stated in Clause B of the 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 or her name is enrolled in the state medical register. In addition to these provisions, it is stipulated that a woman should be guarded by a female constable or police officer 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 fetuses should never be compromised or put at risk. A woman should never be restrained during labor.

Rights of an Arrested Woman:
Maintaining the modesty of a woman is an important task, even if she is accused of an offense. Therefore, certain general rights have been provided to arrested women, along with some rights specifically allotted to them.

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 states expenses for proper representation in the court of law., this tree like provision extends its branches to all sections of society, including woman.

According to Section 304 of CrPC, the State Legal Service Authorities shall bear the cost of legal proceedings including the cost of printing and translation, and fees of the Appointed legal counsel. If I woman is accused often offences, 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 Jose nada cartoon what says state of Bihar 1979, where the tax code held that if an accused is not able to afford legal services, then he asks are 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 the CrPC, the arrested person is entitled to be informed about 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 judgment in D.K. Basu vs. State of West Bengal (1986), this right is exercisable by both accused men and women. Furthermore, as per Section 50(2) of the CrPC, a woman should be informed of her right to be released on bail after being arrested 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 upon oral intimidation of arrest shall be presumed when executing the arrest of an accused woman, as provided under Section 46(1) of the 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, except 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 enforcement 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 information regarding such arrest and the place where the arrested person is being held, to any of the relatives or friends of the arrested person, whomever he or she nominates for the disclosure of the information.

Right During Detention
A police officer is not authorised to detain an arrested person for more than 24 hours, which excludes the time of travel, in his custody under normal circumstances. As mentioned earlier, in the case of an arrested woman, the arrangements for 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 of Gndharba Rath vs. Aparti Samal (1959), the Orissa High Court observed that Section 56 makes it compulsory for a police officer to make the arrest in a written order while specifying the person to be arrested and the offense 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 a warrant.

Landmark Cases For Women's Rights:
Bharati S. Khandhar vs. Maruthi Govind Jadhav (2012)
In the landmark case of Bharathi S. Khandhar vs. Maruti Govind Jadhav (2012), the petitioner was aware of the provision of Section 46(1) but was not aware of the provision of Section 36(4) of the Code of Criminal Procedure. Consequently, she was arrested after sunset and mistreated by the police officers.

The Honourable Bombay High Court directed the Mumbai Commissioner of Police to conduct an inquiry against the concerned police officers for the illegal detention and arrest of the petitioner after 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 adhere to the mandate of subsection (4) of Section 46 of the Code of Criminal Procedure, 1973, which states that the arrest of any woman accused of any offence should not be made after sunset and before sunrise.

Sheela Barse vs. State of Maharashtra(1983):
In Sheela Barse vs. State of Maharashtra (1983), journalist Sheela Barse wrote a letter highlighting the custodial violence against women prisoners in the police lock-ups of Mumbai. This letter was subsequently treated as a writ petition. Following this case, various directives were issued to the State of Maharashtra to ensure the protection of women prisoners in police lock-ups.

The Protection of the Accused in International Criminal Law According to Human Rights Law Standards
The protection of the accused is invariably in the interest of the civilized existence of law. All legal systems provide certain standards for the rights of the accused. These rights guarantee that, should criminal proceedings be held, no harm will come to the alleged offender, and their right to a fair trial will be upheld. The principles developed in human rights law have been adopted at both the national and international levels.

International Criminal law
Similarly, there is no general agreement among scholars regarding the definition of International Criminal Law. According to one expert in this branch of law, Creon, International Criminal Law governs international crimes as well as the penal aspects of international law, including the body of law that protects victims of armed conflicts, known as international humanitarian law. On the other hand, Antonio believes that International Criminal Law is a body of international rules designed to prescribe international crimes and to impose upon states the obligation to prosecute and punish at least some of those crimes.

Nevertheless, some features of International Criminal Law are widely recognized in the literature. First of all, it is settled that it is a mixture of common and civil law systems, especially from the procedural point of view. Secondly, International Criminal Law is seen as an extremely complicated branch of law, combining principles of criminal and international law, and is incorporated into human rights and humanitarian law. The influence of international law on International Criminal Law is particularly visible in the area of substantive law. War crimes are believed to be derived from humanitarian law, while crimes against humanity originate from human rights law.

It is agreed that the concept of International Criminal Law was born in 1945 when tribunals of historic importance were established for the purpose of prosecuting and punishing the perpetrators of international crimes committed during the Second World War. At the present time, the international community can follow the proceedings carried out before the two ad hoc tribunals currently functioning, that is, the ICTY and the ICTR, as well as the permanent ICC.

Undoubtedly, these three bodies are responsible for the current shape of the protection of the accused at the international level, which has had a remarkable impact on national laws. They definitely provide a higher standard for the protection of the rights of the accused and the fair trial principle than those observed in the laws of the historical tribunals. This is partially due to the fact that, in between the establishment of the historical and modern tribunals, the UDHR and the ICCPR were adopted.

The Rights of an Accused
Right to Fair Trial
As Judge Richard May and Marieke Wierda argue, "The objective and purpose of the modern tribunal is to contribute to the restoration and maintenance of peace and security in the former Yugoslavia and Rwanda. This is to be achieved through conducting fair and experienced trials." But what does it mean for a trial to be fair? This expression, often used within the provisions of human rights law, consists of distinguishable elements. Primarily, the right to have our trial was prescribed in the provisions of Article 10 of the UDHR, stating, "Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charges against him."

Furthermore, the scope was broadened by Article 14(1) of the ICCPR, stating: "All persons shall be equal before the courts and tribunals in the determination of any criminal charge against them, or of their rights and obligations in a suit at law. Everyone shall be entitled to a fair and public hearing by a competent, independent, and impartial tribunal established by law. The press and the public may be excluded from all or part of a trial for reasons of morals, public order, or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice. However, any judgment rendered in a criminal case or in a suit at law shall be made public, except where the interests of juvenile persons otherwise require, or the proceedings concern matrimonial disputes or the guardianship of children."

Despite the fact that the provisions of Article 14 provide a list of certain rights, there is no agreement on the concepts incorporated in this broad notion. For example, according to Anthony Cassese, they are equality of arms, publicity of proceedings, and the expeditiousness of proceedings, even though the right to an expeditious trial is provided by Article 14(3)�.

Haji N.A. Noor Muhammad believes that elements of a fair trial are the equality of parties, a competent, independent, and impartial tribunal established by law, and a public trial. Moreover, the case law of the International Criminal Tribunal seems to agree that the impartiality and independence of the tribunal assist in ensuring the right to a fair trial.

As it was held in the Furundzija case, "The fundamental human rights of an accused to be tried before an independent and impartial tribunal is an integral component of the requirement that an accused should have a fair trial."

However, other scholars believe that fair trial rights consist of all the rights of the accused provided in Article 14 of the ICCPR, not limited to those prescribed in Article 14(1). Nevertheless, for the purpose of this work, the fair trial rights will be treated as in the text of the ICCPR, consisting of the following: equality of arms, publicity of proceedings, impartiality, and independence of the judges.

The constant debates under discussion about the right of women gave rise to various amendments in the criminal procedure code 1970 regarding its rights during and after the process of arrest foreign accused it is essential to know the proper procedure guideline underwrites by getting arrested and becomes even more important if the accused is a woman's woman or more vulnerable to social levels to provide a safeguard to arrested in money criminal procedure code 1973.

Lay down and Amanda certain sections related to strict guidance procedures and rights often arrested even if these sections had not existed many women would have become victims of social and physical assessment abuses exploitations and many more affiliations every person has the right to live with dignity no matter whether the person is accused or a victim

  4. Book, Wroclaw Review of law of Administration and Economics.
  5. Universal declaration of Human Rights,UNGA Res 217A (III)(10 Dec 1948) UN Doc A/810 (UDHR).
  6. Code of Criminal Procedure Code(1973).
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