Arrest Of Woman In India By Shadan Seraj At LEXCLIQ

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. 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.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 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.”

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:
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.

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. 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.”

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 providing 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.

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