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Arrest of Women in India: Procedure and Rights

In order to preserve the judicial machinery from the prevailing social lacuna of patriarchal dominance and to promote the concept of gender equality, several substantive and procedural laws of India have accorded certain privileges and consideration to women, through their various provisions. Several statutes of Central and State Legislatures and precedents of Higher Courts have given due significance to the betterment of women and ensure their protection from the prevalent forms of gender discrimination.

Criminal laws of India too, be it procedural or substantive, are highly concerned with the safety, security, maintenance and welfare of women. Such laws have laid down special provisions that guarantee the protection of law to women form several atrocities of criminal nature. E.g.: U/s 51 (2), CrPC, search of an arrested woman shall be conducted by a woman only, with adherence to necessary decency; S. 354D, IPC makes the act of stalking a woman, a punishable offence; etc.

However, it is a well-accepted notion that culprits does not simply resort to a particular class. An offender may be of any race, class, sex, or other origin. Thus, a person committing or accused of committing an offence, may be a woman also. To deal with such cases, the criminal laws of India are contained with certain provisions that provide for the apprehension, trial and the inherent legal rights of a woman accused of an offence.

Though law is concerned towards women in many aspects, it cannot under any circumstances let go free, a woman accused of committing an offence, in order to secure the ends of justice in accordance with Article 39A of the Constitution which provides for the ideal of ‘equal justice’.

The apprehension or arrest of an accused by the police upon the receival of complaint from the victim is an essential ingredient of the Criminal Procedure Code, 1973. It is the primary stage of criminal justice process. Though the term ‘arrest’ is nowhere specifically defined under the Code, arrest in general terms, means a reasonable restraint on the freedom a person in order to safeguard the public interest.

Chapter V of the said statute specifically deals with the process of arrest and the rights of an arrested person. However, keeping in mind the modesty and security of a woman, the process of arresting a woman has been framed in a manner differing from the regular process of arrest, thereby vesting her with certain rights.

Procedure of arrest of a woman

Chapter V i.e. S. (41 – 60A) of the Criminal Procedure Code, 1973 provides for the “Arrest of persons”. Under this head, the process of arrest has been dealt with in fair detail. The provisions of this Chapter have conferred the police with extensive powers for carrying out the process of arrest. However, certain reasonable restraints have been imposed on the exercise of such powers by the police, in some matters, especially those concerning with the arrest of women. Whatever be the circumstances, adherence to the provisions of the chapter highlighted hereinabove is a must for making arrest.

It has been held by the Madras High Court in the case of Roshan Beevi v. Joint Secretary, Government of Tamil Nadu[1] that –
“There cannot be a second opinion that the method and the execution of arrest of a person intended to be arrested should be performed only in the manner prescribed in the statute and the other methods of performance are forbidden, otherwise the whole provision of S.46, CrPC would be nugatory and functionless.

If the method of arrest is not performed in the manner known to law and as prescribed U/s 46, CrPC, it will render the section non-existent or otiose.” 

S. 46 (4), CrPC, inducted by the virtue of S. 6 of Criminal Amendment Act, 2005, provides for the basic procedures regarding the arrest of a woman. It reads as mentioned hereunder:
“Save in exceptional circumstances, no women 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 Judicial Magistrate of the first class within whose local jurisdiction the offence is committed or the arrest is to be made.”

The language of this provision clearly states that the arrest of a woman shall be made by a woman police officer. Further, it also establishes that no woman shall be arrested, under ordinary circumstances, after sunset and before sunrise. In case the offence is serious or it is otherwise required that the accused woman be apprehended immediately in the period between sunset and sunrise, the woman police officer shall obtain permission regarding the same from the J.M. – I within whose local jurisdiction, the offence is committed or the report is to be made.

The provisions of S. 46(4), CrPC were in healthy consideration during the hearing of the recent PNB Scam in the Bombay High Court. The Court ruled in favour of the woman who was arrested at 8:00 p.m. from her residence for being one of the accused in the scam case.

The Bombay High Court held that
“Where a statute mandates that no woman shall be arrested after sunset and before sunrise, and the arrest of a person when she is woman has to be made by a Police Officer who is female, the provisions of the statute cannot be simply ignored.”[2]

Search procedure
Search of the arrested person along with his place of residence or dwelling is an important part of the procedure of arrest. The process of executing search has been mentioned U/s (47, 51), CrPC, with separate provisions there for women. Search by the authorities executing arrest can be classified into two heads, namely:
  1. Search of person:
    U/s 51, CrPC, whenever an arrested person is searched by a police officer, the articles seized from the former shall be placed in safe custody and a receipt showing the seizure of such articles shall be given to him by the latter.

    However, the process for search of an arrested woman involves a thin line of morality. Under the provisions of S. 51(2), CrPC:
    “Whenever it is necessary to cause a female to be searched, the search shall be made by another female with strict regard to decency.
     
  2. Search of place:
    In case of a police officer executing an arrest or any other person executing a warrant of arrest, he has the authority to search any premises for the same, and the owner of such premises shall allow his unrestricted entry into the premises and help him to conduct the search in every way possible.

However, the proviso to S. 47(2), CrPC holds that the police officer or any other person executing the arrest warrant comes to know that the premises to be searched is the original residence of a woman, who according to custom, does not appear in public, such person or police officer shall furnish a notice to that woman regarding her liberty of withdrawal, before initiating the search.

Medical examination of an arrested woman

According to S. 53(1), CrPC, if there is a reasonable suspicion that the medical examination of an accused person shall aid in the procurement of evidence relevant to the offence 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, then according to S. 53(2), CrPC, her examination must be conducted by or under the supervision of a registered female medical practitioner.

Cl. (b) of Explanation to S. (53, 53A, 54), CrPC U/s 53, CrPC clearly states that a medical practitioner is a “registered medical practitioner” if he possess necessary qualification mentioned under S. 2(h) of Indian Medical Council Act, 1956 and, his name has been enrolled in a State Medical Register.

Further, proviso to S. 54(1), CrPC provides for the medical examination of an arrested woman by a medical officer. It establishes that the medical examination of a female accused shall be done by or under the supervision of, a female medical officer in the service of Central or State Government. In case of unavailability of female medical officer for the purposes mentioned hereinabove, the same shall be conducted by a registered female medical practitioner.

There is a thread-line distinction between S. 53 and S. 54 of Criminal Procedure Code, 1973. The former one provides for medical examination of the accused by a registered medical practitioner, at the behest of a police officer or other person with bona fide motives; whereas the latter one is a mandatory procedure which must be adhered to i.e. the arrested person shall compulsorily be examined by a medical officer in the service of Central or State Government, soon after his apprehension.

Rights of an arrested woman

Women in this country have, since time immemorial, held a special status. Though accused of an offence, the modesty of a woman cannot be put at stake and her stature in the society cannot be undermined. In the light of these ideals, even arrested women in India are accorded certain rights, some specifically allotted to them and the others bearing general applicability.

Some of those rights have been discussed hereunder:

Right to free legal aid
Article 39A of the Constitution of India provides for free legal aid to the persons. In case any person is incapable of bearing the expenses of proceedings, civil or criminal, it shall be the responsibility of the State to provide that person with adequate legal assistance at its own expenses, for proper representation in the Court of Law.

His Lordship Justice P.N. Bhagwati aptly stated that legal aid means providing an arrangement in the society which makes the machinery of administration of justice easily accessible and in reach of those who have resort to it for enforcement of rights given to them by law. This provision extends its arms to all sections of the society, including women.

If a woman is accused of an offence, 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, where the Apex Court held that –
“If any accused is not able to afford legal services, then he has a right to free legal aid at the cost of the State.”

The same provisions have been enlisted U/s 304, CrPC. In such cases, the Legal Services Authorities shall bear the cost of legal proceedings including the cost of printing and translation and, fees of the legal counsel appointed.

Right against manhandling

The proviso to S. 46(1), CrPC establishes that in case of executing arrest of an accused woman, her submission to custody on oral intimidation of arrest shall be presumed. Moreover, if touching an accused woman is necessary to execute the process of her arrest, it shall be done by a female police officer. Unless absolute necessity arises or the situation seems going beyond control, no person other than a female police officer shall touch the woman to be arrested.

Right to be informed regarding grounds of arrest and bail

Under the provisions of S. 50(1), CrPC, the arrested person is entitled to gather information regarding the grounds of his arrest, and the police officer or any other person executing the arrest shall communicate the same to him. This right is exercisable by accused men and women as well.

Further, U/s 50(2), CrPC, after the execution of arrest of a woman without warrant for an offence other than a non-bailable one, she shall be informed of her right to be released on bail after arranging sureties on her behalf.

Rights during detention

According to the provisions of S. 57, CrPC, a police officer cannot detain an arrested person for more than 24 hours in his custody, under reasonable circumstances. In case the arrested person is a woman, the arrangements of her custody must be made with strict regard to decency. In accordance with moral norms, arrested men and women cannot be kept in the same lock up, keeping in mind the modesty of a woman.

The Supreme Court of India took due attention of this issue in the case of Sheela Barse v. State of Maharashtra[3]. It held that –
“It is the duty of the police officer making arrest to see that arrested females are segregated from men and kept in female lock up in the police station. In case there is no separate lock up, arrested women should be kept in a separate room.”

Conclusion
Women in India have been subjected to various forms of discrimination since many years. The patriarchal bend of the society has, time and again, made efforts to undermine the stature of women in the society. In the wake of such serious matters of gender inequality, the concern of law towards the woman class has garnered positive outcomes. By providiing them with various rights and privileges that the biased society failed to provide them, the law has empowered the women to raise their voice against several atrocities and, stand out effectively by the virtue of their skills and strength.

The provisions of Criminal Law are also well in line with the protection and promotion of women and their rights. The privileges granted to women accused of offences is a striking feature of the Criminal Law, which upholds the ideal of public morality and preservation of modesty of a woman. However, the legislations though enacted, have failed to gain significant roots as many women in the country are still unaware of such rights available to them, and are still frequently subjected to prejudice and oppression. Furthermore, the legislations and enforcement bodies have, to some extent, failed to cover each and every aspect of security and welfare of arrested woman, thus highlighting significant lacuna in law.

For instance, Safoora Zargar, a social activist who was six months pregnant, was arrested for being accused in connection with recent Delhi riots. Here, our rules and provisions fell short as there are no specific enactments in Criminal Law governing the procedure of arrest of a pregnant woman. Similar is the case with an arrested woman being a mother to one or more children who are below the age of adolescence.

However, the judiciary has played a crucial role as the guardian of law by properly addressing all such issues, be it covered by specific legislations or not. The State machinery has also given considerable space to the recognition of the rights of women under Criminal Law. Hence, overall they are well in parlance with the goal of betterment of women and safeguarding their interests. 

End-Notes:
  1. 1984 Cri. L. J. 134.
  2. (2018) SCC Bom. 1095.
  3. 1983 SCR (2) 337.

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