PROCEEDURE FOR ARREST OF WOMEN

Introduction

The criminal justice process has to deal with the citizen at several stages. Arrest is the first stage. At this stage the freedom of the citizen is restrained to safeguard public interest. Different purposes are served by arresting a person. Sometimes, it saves him/her from retaliatory assault from the public. Sometimes, he/she is prevented from committing further crimes. And surely arrest helps him/her to be presented before the appropriate court to stand trial. It is to serve the third purpose that usually a suspect is arrested by the police.

Even during an arrest where the accused is a Woman, her safety is a priority for fair trial of the accused and to ensure that, an amendment in 2005 to the Criminal Procedure Code, 1973 made a very significant point related to the safety of woman.

According to Section 46(4) of the Criminal Procedure Code, 1973 which governs the arrest of women, It is specifically mentioned that “Save in exceptional circumstances, Woman is prone to crime be it anywhere. Here the emphasis is given to protect woman while making an arrest. Protection is given so that Police misdeeds can be prevented. There are many ambiguities to this insertion out of which the most important one being the confusion of arrest by a male police officer during day. The apex court of the country has made efforts to come clean on the situation but there is a lot more to do.

Arrest how made –

1.  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 where a woman is to be arrested, unless the circumstances indicate to the contrary, her submission to custody on an oral intimation of arrest shall be presumed and, unless the circumstances otherwise require or unless the police officer is a female, the police officer shall not touch the person of the woman for making her arrest.

2. If such person forcibly resists the endeavour to arrest him, or attempts to evade the arrest, such police officer or other person may use all means necessary to effect the arrest.

3. Nothing in this section gives a right to cause the death of a person who is not accused of an offense punishable with death or with imprisonment for life.

4. 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 offense is committed or the arrest is to be made.

Upon careful perusal of the aforesaid provision, it is abundantly clear that, save in exceptional circumstances, no woman shall be arrested after sunset and before sunrise and where such exceptional circumstances exist, a Lady Police Officer shall, by making a written report, obtain the prior permission of the Judicial Magistrate, First Class.

Therefore, the requirement of the provisions of sub-section (4) of Section 46 of the said Code is two-fold. If the Police Officer wants to arrest the woman after sunset and before sunrise, there must exist exceptional circumstances for such arrest. In cases wherein such exceptional circumstances do exist, a Lady Police Officer shall make a written report and obtain the prior permission of the Judicial Magistrate, First Class in whose jurisdiction the offense is committed or the arrest is to be made.

Also, section 60A of the code states that – ” No arrest shall be made except in accordance with the provisions of this code or any other law for the time being in force providing for arrest. “

Section 51 (2):

This states that,

Whenever it is necessary to cause a female to be searched, the search shall be made by another female with strict regard to decency.

Section 53(2):

According to Section 53 (2) of Code of Criminal Procedure, 1973,

Whenever the person of a female is to be examined under this section, the examination shall be made only by, or under the supervision of, a female registered medical practitioner.

Section 160 (1):

No woman under the age of 15 years shall be required to attend at any place other than the place in which such a female person resides.

Women should be guarded by female constables/police officers. They must be questioned in the presence of policewomen.

All necessary pre-natal and post-natal care should be provided to females who are arrested. Restraints should only be used on pregnant women as a last resort. Their safety or the safety of their foetus should never be put at risk. Women must never be restrained during labour.

Violation of the provision

There have been instances where section 46(4) of the code has been violated. One of the recent case in which the lady filed a writ petition before the Bombay High Court for the violation of section 46(4) and 60A of the code by the CBI officers, the High Court allowed the writ petition and held that the arrest of the petitioner was illegal and contrary to the provisions of Section 46(4) of the Code, and imposed a fine of Rs. 50,000/- upon the respondent. 

The intent of the legislature is to safeguard women, but sometimes the police officers violate the law and behave inappropriately with women as it happened in the case of Bharati S. Khandar v. Maruti Govind Jadhav and Christian Community Welfare Council of India and Ors. v. Government of Maharashtra and Ors.

Case law : Bharati S. Khandar v. Maruti Govind Jadhav AIR 2013 (1) ABR 694.

In the landmark case of Bharati S. Khandhar v. Maruti Govind Jadhav, the petitioner was aware of the proviso of section 46 (1) but still was unaware about the proviso of section 46 (4) of the Code of Criminal Procedure and she was arrested after sunset and was also mistreated by the police officers.

In the PNB Fraud Case, the Bombay High Court imposed a fine on the Central Bureau of Investigation (CBI) for making an illegal arrest. The accused was arrested in violation of Section 46 (4) of the Code of Criminal Procedure. The proviso bars any arrest of women made after sunset and before sunrise unless, in exceptional situations, the arrest can only be made after a woman police officer gets prior permission from the Judicial Magistrate First Class. The lady had filed a writ petition before the Bombay High Court for the violation of section 46 (4) and 60 A of the Code of Criminal Procedure by the officers of CBI. The Bombay High Court allowed the writ petition and held that the arrest of the petitioner was illegal and contrary to the provisions of Section 46 (4) of the Code, and imposed a fine of Rs. 50,000/- upon the respondents.

Case law : Kavita Manikikar of Mumbai Vs. Central Bureau of Investigation BS & FC and Ors. AIR 2018 MH 1142

Case law :  sheela barse vs state of Maharashtra

• The case dealt with custodial violence to women prisoners confined in the police lock up in Bombay. Women prisoners assaulted and tortured by the police in the police lock up. Directions issued by Supreme Court that Police lock ups where only female suspects should be kept and they should be guarded by female constables.
• Female suspects should not be kept in police lock up in which male suspects are detained Interrogation of females should be carried out only in  the presence of female police officers/constables.
• Whenever a person is arrested by the police and taken to the police lock up, the police will immediately give an intimation of the fact of such arrest to the nearest Legal Aid Committee and such Legal Aid Committee will take immediate steps for the purpose of providing legal assistance to the arrested person at State cost provided he is willing to accept such legal assistance
• Immediately informed of the grounds of his arrest and in case of every arrest it must immediately be made known to the arrested person that he is entitled to apply for bail.
• As soon as a person is arrested, the police must immediately obtain from him the name of any relative or friend whom he would like to be informed about his arrest and the police should get in touch with such relative or friend and inform him about the arrest.

The Supreme Court of India in the case of Sheela Barse v. the State of Maharashtra has held that

It is the duty of the police officer making the arrest to see that the arrested females are segregated from men and kept in female lock-up in the police station. However, in case there is no separate lock-up available, women should be kept in a separate room. Also, according to the proviso in Section 160 (1), women should not be called to the police station or to any place other than their place of residence for questioning in as much.

D.K.Basu Vs State of West Bengal (1986) SC CWP 539/86.

In this landmark case the Supreme Court passed the following directions/Orders

• Disclosure of identity:- While carrying out arrest and handling interrogation the police personnel should bear accurate, visible and clear identification and name tags with their designations.
• Maintenance of record:- The particulars of all such police personnel who handle interrogation of the person arrested must be recorded in a register.
• Memo of arrest: - Duty of the police officer to prepare a memo of arrest at the time of arrest - memo shall be attested by at least one witness, who may be either a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be counter signed by the arrestee and shall contain the time and date of arrest.
• Disclosure of place of detention:- Any person arrested or detained held in custody in a police station or interrogation centre or other lock-up, shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, that he has been arrested and is being detained at the particular place
• Time and place of arrest:- should be notified by the police to the next friend or relative of the arrestee or through the Legal Aid Organization in the District within a period of 8 to 12 hours after the arrest.
• Duty of Police:- The person arrested must be made aware of this right to have someone informed of his arrest or detention as soon as he is put under arrest or is detained.
• Entry in Diary:- An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of the next friend of the person who has been informed of the arrest and the names and particulars of the police officials in whose custody the arrestee is.
• Right to medical examination:- The arrestee should, where he so requests, be also examined at the time of his arrest and major and minor injuries, if any present on his/her body, must be recorded at that time. The "Inspection Memo" must be signed both by the arrestee and the police officer effecting the arrest and its copy provided to the arrestee.
• The arrestee should be subjected to medical examination by a trained doctor every 48 hours during his detention in custody Copies of all the documents including the memo of arrest, referred to above, should be sent to the illaqa Magistrate for his record.
• The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation.
• A police control room should be provided at all district and state headquarters, where information regarding the arrest and the place of custody of the arrestee shall be communicated by the officer ausing the arrest, within 12 hours of effecting the arrest and at the police control room it should be displayed on a conspicuous notice board.
• No arrest can be made because it is lawful for the police officer to do so. The existence of the power of arrest is one thing. The justification for the exercise of it is quite another.... No arrest should be made without a reasonable satisfaction reached after some investigation about the genuineness and bonafides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest. Denying a person his liberty is a serious matter Failure to comply with the requirements hereinabove mentioned shall apart from rendering the concerned official liable for departmental action, also render him liable to be punished for contempt of court.

Sunil Batra v. Delhi Administration Writ Petition No. 2202 and 568 of 1977 Supreme Court

The right against solitary confinement

• Condemned prisoners shall be merely kept in custody they shall be entitled to the amenities of ordinary inmates in the prison like games, books, newspapers, reasonably good food, the right to expression, artistic or other, and normal clothing and bed. To eat together, to sleep together, to work together, to live together, generally cannot be denied to them
• Fetters, especially bar fetters, shall be shunned as violates of human dignity, within and without prisons.

Prem Shankar Shukla v. Delhi Administration (SC)

• The right against handcuffing - in this case the supreme court held that Handcuffing cannot be made routinely - handcuffing to be made on reasonable grounds - the escorting officer has to inform the reason for handcuffing to Judicial Officer before whom accused produced - escorting officer has to get approval from such Officer.

NOTE

Awareness of rights can stop the further violation of the law. As happened in the case of Bharati S. Khandar v. Maruti Govind Jadhav[6] the petitioner (the lady) was aware of the proviso of section 46(1) i.e only a female police officer can arrest a woman, so she refused to go with the male police officer who came to arrest her in the evening, but still she was unaware of section 46(4) of the code and she was arrested after sunset and was also mistreated by the police officers.

Since we law students have the knowledge of this provision and we can take the responsibility to inform at least our friends, family members or the people around us etc. Our little step can contribute to spreading awareness of the procedure and would help people in knowing their rights.

LEGAL RIGHTS THAT WOMEN MUST KNOW

Right to free aid

When a woman goes to the police station without being accompanied by a lawyer she is either quoted wrong, ignored or humiliated for her statements. She should be aware of the fact that she has a right to get the legal aid and that she should demand for it. “According to a Delhi High Court ruling, whenever a rape is reported, the senior house officer has to bring this to the notice of the Delhi Legal Services Authority. The legal body then arranges for a lawyer for the victim,” says Saumya Bhaumik, a women rights lawyer.

Right to privacy

A woman who has been raped has a right to record her statement in private, in front of the magistrate without being overheard by anyone else. She also has a freedom to record her statement with a lady constable or a police officer in personal. Under section 164 of the Criminal Procedure Code, the cops will have to give the privacy to the victim without stressing her in front of masses.

Right to untimely registration

There are many reasons as to why a woman would postpone going to the police to lodge a complaint. She considers her reputation, dignity of the family and threats from the culprit to take her life away. Police in any way cannot say no to register her complaint, no matter if it’s too late to register. The self-respect of women comes before anything else. She cannot be denied of anything.

Right to virtual complaints

According to the guidelines issued by the Delhi Police, a woman has the privilege of lodging a complaint via email or registered post. If, for some reason, a woman can’t go to the police station, she can send a written complaint through an email or registered post addressed to a senior police officer of the level of Deputy Commissioner or Commissioner of Police. The officer then directs the SHO of the police station, of the area where the incident occurred, to conduct proper verification of the complainant and lodge an FIR. The police can then come over to the residence of the victim to take her statement.

Right to Zero FIR

A rape victim can register her police complaint from any police station under the Zero FIR ruling by Supreme Court. “Sometimes, the police station under which the incident occurs refuses to register the victim’s complaint in order to keep clear of responsibility, and tries sending the victim to another police station. In such cases, she has the right to lodge an FIR at any police station in the city under the Zero FIR ruling. The senior officer will then direct the SHO of the concerned police station to lodge the FIR,” says Abeed. This is a Supreme Court ruling that not many women are aware of, so don’t let the SHO of a police station send you away saying it “doesn’t come under his area”.

Right to no arrest

According to a Supreme Court ruling, a woman cannot be arrested after sunset and before sunrise. There are many cases of women being harassed by the police at wee hours, but all this can be avoided if you exercise the right of being present in the police station only during daytime. “Even if there is a woman constable accompanying the officers, the police can’t arrest a woman at night. In case the woman has committed a serious crime, the police requires to get it in writing from the magistrate explaining why the arrest is necessary during the night,” says Bhaumik.

Right to not being called to the police station

Women cannot be called to the police station for interrogation under Section 160 of the Criminal Procedure Code. This law provides Indian women the right of not being physically present at the police station for interrogation. “The police can interrogate a woman at her residence in the presence of a woman constable and family members or friends,” says Abeed. So, the next time you’re called to the police station for queries or interrogation when you have faced any kind of harassment, quote this guideline of the Supreme Court to exercise your right and remind the cops about it.

Right to confidentiality

Under no circumstances can the identity of a rape victim be revealed. Neither the police nor media can make known the name of the victim in public. Section 228-A of the Indian Penal Code makes the disclosure of a victim’s identity a punishable offense. Printing or publishing the name or any matter which may make known the identity of a woman against whom an offense has been committed is punishable. This is done to prevent social victimization or ostracism of the victim of a sexual offense. Even while a judgment is in progress at the high court or a lower court, the name of the victim is not indicated, she is only described as ‘victim’ in the judgment.

Right towards crime and not a medical condition

A case of rape can’t be dismissed even if the doctor says that rape has not taken place. A victim of rape needs to be medically examined as per Section 164 A of the Criminal Procedure Code, and only the report can act as proof. “A woman has the right to have a copy of the medical report from the doctor. Rape is crime and not a medical condition. It is a legal term and not a diagnosis to be made by the medical officer treating the victim. The only statement that can be made by the medical officer is that there is evidence of recent sexual activity. Whether the rape has occurred or not is a legal conclusion and the doctor can’t decide on this,” explains Bhaumik.

Right to no sexual harassment

It is the duty of every employer to create a Sexual Harassment Complaints Committee within the organization for complaints. According to a guideline issued by the Supreme Court, it is mandatory for all firms, public and private, to set up these committees to resolve matters of sexual harassment. It is also necessary that the committee be headed by a woman and comprise of 50% women, as members. Also, one of the members should be from a women’s welfare group.