JAMIA MILLIA ISLAMIA

ARREST OF WOMEN AND

ITS PROTECTION UNDER
CRIMINAL PROCEDURE
CODE, 1973
SUBMITTED TO Dr. ASAD MALIK
SUBMITTED BY SAHIL CHOWDHURY

ASSIGNMENT ON CRIMINAL PROCEDURE CODE

 Acknowledgement

Firstly, I would like to express my profound sense of gratitude towards the almighty
“ALLAH” for providing me with the authentic circumstances which were mandatory for the
completion of my project.

I feel myself highly delighted, as it gives me incredible pleasure to present an assignment

work on “Arrest of women under Criminal Procedure Code and its protection”.

I would like to enlighten my readers regarding this topic and I hope I have tried my best to
pave the way for bringing more luminosity to this topic.

I am grateful to Dr. Asad Malik who has helped me to venture this project as well as the
library of Faculty of Law, Jamia Millia Islamia.

I would like to thank all concern for their interest in providing me a good back up material.

SAHIL CHOWDHURY

B.A.LL.B (Hons) 8th Semester

4th Year

INTRODUCTION
1
In India it is generally believed that criminal law is gender biased. To a certain
extent it is true. In the process of its evolution, it appears that the criminal law
system has kept 'reasonable -man' in view as its basic unit. This much is evident
from the present practice also. Even today the 'reasonable man' creeps into the
mind of the judge while appraising the evidence or while evaluating the conduct
of the accused towards the victim. The 'reasonable man' standard came to be
accepted as the yardstick by the criminal law, probably in its anxiety to achieve
objectivity.

But many a time the law is not in a position to achieve objectivity as the
objective criteria get submerged by the subjective criteria of individual judges.
The influence of 'reasonable man' is so profound that even while dealing with
offences against women, judges are inclined to fall back on this yardstick for
evaluating the conduct of the victim and the accused. It becomes clear when one
examines the question of determination of 'consent' of a rape victim. The whole
question revolves around the issue as to whether the force used by the victim in
resisting the assault was sufficient. If, according to the court, sufficient force
was not exercised by the victim, the court can conclude that there was no
resistance.

ARREST OF WOMEN UNDER CRIMINAL PROCEDURE CODE, 1973

2
It is generally believed that criminal law is gender biased. To a certain extent it
is true. In the process of its evolution, it appears that the criminal law system
has kept 'reasonable -man' in view as its basic unit. This much is evident from
the present practice also. Even today the 'reasonable man' creeps into the mind
of the judge while appraising the evidence or while evaluating the conduct of
the accused towards the victim. The 'reasonable man' standard came to be
accepted as the yardstick by the criminal law, probably in its anxiety to achieve
objectivity.

But many a time the law is not in a position to achieve objectivity as the
objective criteria get submerged by the subjective criteria of individual judges.
The influence of 'reasonable man' is so profound that even while dealing with
offences against women, judges are inclined to fall back on this yardstick for
evaluating the conduct of the victim and the accused. It becomes clear when one
examines the question of determination of 'consent' of a rape victim. The whole
question revolves around the issue as to whether the force used by the victim in
resisting the assault was sufficient. If, according to the court, sufficient force
was not exercised by the victim, the court can conclude that there was no
resistance.

In other words, in such a situation, the court can decide that there was consent.
In several such circumstances, one can see the presence of 'reasonable man',
making the law discriminatory. This fundamental defect came to the fore in
what is popularly called the Mathura case1 in India. In that case, a-tribal girl
who along with her relatives went to a police station to register a complaint was
raped by policemen in the police station while her relatives were waiting outside
the police station. Indeed, in the circumstances in which she was placed she did
not protest. On prosecution the Bombay High Court convicted the policemen.
The Supreme Court, however, acquitted them on the ground that there was

1
Tukaram v. State of Maharashtra (1979) 2 SCC 143: 1979 SCC (Cri) 381

3
consent of the girl. In an unprecedented move four legal academics, viz., Dr
Upendra Baxi, Dr Lotika Sarkar, Dr Vasudha Dhagamvar and Professor R.V.
Kelkar wrote an open letter to the Chief Justice of India to get the judgment
reviewed. It was reviewed indeed but the bench reiterated its earlier stand.

These developments generated a debate and amendments to the Indian Penal

Code 1860 and Criminal Procedure Code 1973 were introduced with a view to
make them more helpful and effective. The hopes raised by these amendments
were soon shattered. Consequently we are still in the process of examining the
factors which would tone up our legal system and make it more responsive to
offences against women. This article discusses some of the proposals aimed to
make the criminal law more gender sensitive.

Chapter V of Criminal Procedure Code, 1973 deals with ''Arrest of persons''.

To know about guidelines to be followed before arrest, it is essential to refer the
ruling Joginder Kumar v. State of Uttar Pradesh2. To know more as to
guidelines during arrest, it is necessary to refer the decison D.K.Basu v. State of
West Bengal3. Further, to know about guidelines after arrest, it is essential to
refer the ruling Sunil Batra v. Delhi Administration4, Prem Shankar Shukla v.
Delhi Administration5 and D.K.Basu's case. A fortiori, it is also necessary to
see Article 20(3) of Indian Constitution, the provisions of Criminal Procedure
Code, 1973 relating to arrest, Article 7 of International Covenant on Civil and
Political Rights, 1966 and National Human Rights Commission guidelines on
arrest and National Police Commission: Third report6 etc.

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.
2
1994 (4) SCC 260
3
AIR 1997 SC 610
4
(1978) 4 SCC 494
5
(1980) Cr L J 930
6
(1979-1981),Page 32,PARA 15,48

4
Sometimes, it saves him from retaliatory assault from the public. Sometimes, he
is prevented from committing further crimes. And surely arrest helps him 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. While under arrest, the
arrested person loses freedom and his normal life in the family. As a
consequence of arrest he is generally accused of having deviated from normal
behaviour. So the decision to arrest is a very serious one from the point of view
of human rights.

And this decision is usually taken by a police officer in the criminal law system.
Indeed, his decision to arrest is subject to the offences being cognizable.
However, the discretion given to the police under the system is very wide. The
police thus wields much power and this position often helps the police to violate
women's rights with impunity. Efforts have therefore been made within this
sphere to make the criminal law more balanced and just.

In the country like India, 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 from retaliatory assault from the
public. Sometimes, he is prevented from committing further crimes. And surely
arrest helps him 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. While
under arrest, the arrested person loses freedom and his normal life in the family.
As a consequence of arrest he is generally accused of having deviated from
normal behavior. So the decision to arrest is a very serious one from the point of
view of human rights. And this decision is usually taken by a police officer in
the criminal law system. Indeed, his decision to arrest is subject to the offences
being cognizable.

5
However, the discretion given to the police under the system is very wide. The
police thus wield much power and this position often helps the police to violate
women's rights with impunity. Efforts have therefore been made within this
sphere to make the criminal law more balanced and just.

Under the Criminal Procedure Code, 1973, a woman can be arrested by male
constables, though in due regard to decency she may be searched by a female
officer only.7 The anxiety of the CRPC to safeguard the interests of women is
reflected in the proviso of Section 47 which requires that if an apartment to be
searched by the police is in the occupancy of a woman who according to custom
does not appear in public then the police ought to serve her a notice to leave the
place during the search. This is to avoid intruding on her privacy and causing
any embarrassment to her. Recognizing the importance of arrest of a woman, it
has been suggested that a male officer should avoid touching the woman's body
while effecting arrest. It has also been suggested that a woman shall not be
arrested after sunset and before sunrise.8 If she is to be arrested, the police
officer has to seek prior permission of his seniors. If this is not possible then the
arrest can be made but the fact has to be reported to the senior officers with
reasons for not taking prior permission. The magistrate is also to be informed of
this fact. These safeguards have been suggested to afford maximum protection
to the woman accused. These recommendations came to be incorporated in the
CRPC Bill 1994. And the Law Commission on its Report on rape and allied

7
Section 51, CrPC 1975 and the observations in Kamalabhai v. State of Maharasthra AIR 1962 SC 1189
8
Except in unavoidable circumstances, no woman shall be arrested after sunset and before sunrise, and where
such unavoidable circumstances exist, the police officer shall by making a written report, obtain the prior
permission of his immediate superior officer not below the rank of an Inspector for effecting such arrest, or if
the case is one of extreme urgency and such prior permission cannot be obtained before making such arrest,
he shall after making the arrest, forthwith report the matter in writing to his immediate superior officer with
the reasons for arrest and the reasons for not taking prior permission as aforesaid and shall also make a report
of the magistrate within whose local jurisdiction the arrest had been made, " Law Commission of India, 135
the Report on Women in Custody, Controller of Publications, Delhi, 1989, p.33.

6
offences9 had suggested that they can be incorporated in the Code by way of
proviso to Section 46(l) CRPC in this manner:

"Provided that where a woman is to be arrested then, 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 arresting is a
female, the police officer shall not actually touch the person of the
woman for making her arrest."

The Law Commission has made several suggestions for the reform of criminal
law. The Commission desired that the police officer making the arrest should
satisfy himself about the need for arrest.10 It further suggested that upon arrest
the police officer should inform a relative or friend of the arrested person about
the arrest either by telegram or by telephone.11 The police officer should be
asked to prepare a custody memo containing all possible information on the
person arrested. The lawyer of the accused should be permitted to be present
during interrogation. The obligation to oversee the compliance of these
procedures by the police or other authorities has been placed on magistrates by
the Commission. The acceptance of this suggestion may have far-reaching
consequences.

9
The Law Commission of India, 84th Report Rape and Allied Offences: Some Questions of Substantive Law
Procedure and Evidence, Controller of Publications, New Delhi, 1980, p.14. The Law Commission in its report,
Supra n.3 at p.33 has reiterated these suggestions.
10
The Law Commission has recommended insertion of a new sub-section to Section 41 as follows: " Section
41(1A), A Police officer arresting a person under clause (a) of sub-section (1) of this section must be reasonably
satisfaction [in respect of certain matters]" Law Commission of India, 154th Report on Code of Criminal
Procedure 1973, Controller of Publications, New Delhi, 1996, p.15.
11
In fact, this suggestion has its original i the recommendation of the Royal Commission on Criminal Procedure
in England as noted by the Supreme Court in case of Joginder Kumar v. State of U.P. (1994) 4 SCC 260. Even
before this decision was given by the Supreme Court, the Kerala High Court in Poovan v. S I of Aroor 1993 Cri
LJ 2183 adverted to the need for having transparency in this are. How the present system enables the police to
Manipulate is made abundantly clear in this decision. It was ruled that the magistrate should over see these
procedures to prevent violation of constitutional rights. It is a very welcome suggestion that these
requirements should be spelt out in the provisions of the CrPC, Supra n.5 at p.17

7
The Commission has also suggested the incorporation of a new section (Section
41-A) whereby the police officer may, if satisfied that immediate arrest of the
person concerned is not necessary, issue to him a notice requiring him to appear
before the police officer at a specified time and place for further investigation
and it shall be the duty of that person to comply with the terms of the notice. If
such person fails to comply with the terms of the notice, it shall be lawful for
the police officer to arrest him for the offences mentioned therein.

This provision may be of great use to women who are not assertive enough in
their interaction with the police. If the suspects themselves provide assurance of
their availability, police interference with the day-to- day life of people can be
minimized. The reputation of the person under a cloud of suspicion can also be
protected because he or she may not be needlessly deprived of their freedom.
The provisions suggested for safeguarding the security of women may also help
ensure accountability of the police. Of course the police can still flout these
provisions, in as much as they are in a position to find reasons to justify the
arrest of women after sunset without the prior permission of a senior police
officer or magistrate. Practicing lawyers very well know that senior police
officers usually try to justify the acts of their subordinates as institutional
interests so demand. Magistrate's intervention in this area also may not be that
feasible.

The provision which suggests the involvement of the arrestee's advocate, friend
or relation at the investigation stage itself may go a long way in ensuring
security for women even as the effect of the advocates' presence on the progress
of interrogation may have to be examined closely. The effectiveness of this
provision is dependent on the rapport the lawyers can develop in their relations
with the police.

8
It seems that the CRF'C takes special care to see that adequate precautions are
taken before the body search of a woman is allowed. This attitude is signified in
many provisions. In the case of medical examination of a woman under arrest, it
is stipulated that this examination has to be done by a female registered medical
practitioner. In this context, it is worthwhile to note that the National
Commission for Women has endorsed a recommendation made by the Law
Commission to the effect that if the accused desires a medical examination in
order to prove her innocence, she should insist that in due regard to decency
such an examination be done by a female registered medical practitioner. It has
recommended enactment of a proviso to Section 54 CRPC to this effect. It
appears the central government did not approve of it as the Criminal Procedure
Bill 1994 did not contain such a provision. Now the Law Commission has
reiterated its stand and asked for the inclusion of the proviso. This is a welcome
step. However, compliance with this provision may become difficult in areas
where women medical practitioners are not available.

The need for keeping away women and children from the police to the extent
possible is felt by all the bodies concerned with law reform. To that end
curtailment of the general power of the police to summon witnesses has been
proposed. The National Commission for Women has suggested the inclusion of
a proviso to Section 160(l) whereby the police should not be allowed to
question any male person under the age of eighteen years or a woman at any
place other than the place in which such male person or woman resides. The
Law Commission has supported the incorporation of this proviso in the CRPC.

According to National Human Rights Commission guidelines on arrest, As far

as practicable, women police officers should be associated where women are
arrested that too, arrest of women between sunset and sunrise should be
avoided.

9
According to S. 51(2) when it is necessary to cause a female to be searched, the
search shall be by another female with strict regard to decency. Body searches
of females should only be carried out by women and with strict regard to
decency.12

The Hon'ble Supreme Court in Sheela Barse v. State of Maharastra13, it was

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, women should be kept in a separate
room. According to Proviso, Section 160(1) Code of Criminal Procedure, 1973,
Women should not be called to the police station or to any place other than their
place of residence for questioning inasmuch as it says that no male person under
the age of fifteen or woman shall be required to attend at any place other than
the place in which such male person or woman resides.

Women should be guarded by female constables/police officers. They must be

questioned in the presence of policewomen.14

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.15

According to Section 53(2) of Code of Criminal Procedure, 1973 and 10 Basic

Standards for Law Enforcement Officials Proposed by Amnesty International,
Medical examination of women should be carried only under the supervision of
female medical practitioners.

12
Section 100(3) of Code of Criminal Procedure, 1973
13
1983 2 SCC 96
14
Ibid
15
http://www.amnesty.org/torture/resource/10HRSofficials.html

10
The Following guidelines are laid down by the Hon'ble Supreme Court in its
judgement in Delhi Judicial Service Association, Tis Hazari Court, Delhi v.
State of Gujarat and others.16

In this ruling, the Apex Court held that in view of' the paramount necessity of
preserving the independence of judiciary and at the same time ensuring that
infractions of law are' properly investigated the following guidelines are to be
followed:

1. If a judicial officer is to be arrested for some offence, it should be done

under intimation to the District Judge or the High Court as the case may
be.
2. If facts and circumstances necessitate the immediate arrest of a judicial
officer of the subordinate judiciary, a technical or formal arrest may be
affected.
3. The fact of such arrest should be immediately communicated.to the
District and Sessions Judge of the concerned District and the Chief
Justice of the High Court.
4. The Judicial Officer so arrested shall not be taken to a police station,
without the prior order or directions of the District & Sessions Judge of
the concerned District, if available.
5. Immediate facilities shall be provided to the Judicial Officer for
communication with his family members, legal advisors and Judicial
Officers, including the District & Sessions Judge.
6. No statement of a Judicial Officer who is under arrest be recorded nor
any panchnama be drawn up nor any medical test be conducted except in
the presence of the Legal Advisor of the Judicial Officer concerned or
another Judicial Officer of equal or higher rank, if available.

16
1991 AIR 2176, 1991 SCR (3) 936. (a Writ Petition (Criminal) no. 517,518and 523-27 of 1989.)

11
 7. There should be no handcuffing of a Judicial Officer. If, however, violent
resistance to arrest is offered or there is imminent need to effect physical
arrest in order to avert danger to life and limb, the person resisting arrest
may be over- powered and handcuffed. In such case, immediate report
shall be made to the District & Sessions Judge concerned and also to the
Chief Justice of the High Court. But the burden would be on the Police to
establish the necessity for effecting physical arrest and handcuffing the
Judicial Officer and if it be established that the physical arrest and hand-
cuffing of the Judicial Officer was unjustified, the Police Officers causing
or responsible for such arrest and handcuffing would be guilty of
misconduct and would also be personally liable for compensation and/or
damages as may be summarily deter- mined by the High Court. It was
further held that these guidelines are not exhaustive but are the minimum
safeguards to be observed in case of arrest of a Judicial Officer. These
should be implemented by the State Governments as well as by the High
Courts. No judicial officer should visit a Police Station on his own except
in connection with his official and judicial duties and functions, and this
also with prior intimation to the District and Sessions Judge.

In a case of Nagpur where some of the policemen on duty in the Crime Branch
Office of Nagpur City took into custody one Junious Adam Illamatti, a resident
of Ajini Railway Colony on 23.6.1993. While he was in Police custody, it is
stated he was found dead. It is also alleged that when his wife Jarina Adam went
to the Police Station to enquire about her husband, she was also locked up by
the said Police and molested. On 26.6.1993 a criminal case being Crime No.
438 of 1993 was registered for offences under Sections 302, 342, 330, 354 read
with 34 against 10 Police Officers. The investigation in this regard was
conducted by a Deputy Superintendent of Police. State CID (Crimes) Mr.
Godbole. After investigation said Police Officers were charge sheeted for the

12
offences mentioned hereinabove and in the trial in S.C. No. 416 of 1993 before
the Additional Sessions Judge, Nagpur, said 10 Police Officers were acquitted
of the charge under Section 302 IPC but were convicted for offences punishable
under section 333 read with 34, 342 read with 34, 355 read with 34, and a
punishment of 3 years' RI with fine for the principal offence was awarded by
said Sessions Judge to the abovementioned 10 Police. A criminal appeal against
the said judgment and conviction is pending before the High Court.

On 29.9.1993 Criminal Writ Petition was filed initially by the Christian

Community Welfare Council of India which was latter on impleaded with
victim of the said case.

The High Court by the impugned order issued various directions in regard to the
laying down of guidelines to prevent and check custodial violence and
procedures to be followed by Police while arresting any person including
women.

High Court has directed the State Government to issue instructions in the
following terms:

“The State Government should issue instructions immediately in unequivocal

and unambiguous terms to all concerned that no female persons shall be
detained or arrested without the presence of lady constable and in no case,
after sunset and before sun-rise;"

To uphold the dignity of women, No female persons shall be detained or

arrested without the presence of lady constable and in no case, after sunset and
before sunrise.

We notice the mandate issued by the High Court prevents the Police from
arresting a lady without the presence of a lady constable ….also prohibits the
arrest of a lady after sunset and before sunrise under any circumstances...we do

13
agree with the object behind the direction... (But) we think a strict compliance
of the said direction, in a given circumstance, would cause practical difficulties
to the investigating agency and might even give room for evading the process of
law by unscrupulous accused. While it is necessary to protect the female sought
to be arrested by the Police from Police misdeeds, it may not be always possible
and practical to have the presence of a lady constable when the necessity for
such arrest arises, therefore, we think this direction issued requires some
modification without disturbing the object behind the same.

We think the object will be served if a direction is issued to the arresting

authority that while arresting a female person, all efforts should be made to keep
a lady constable present but in circumstances where the arresting officers is
reasonably satisfied that such 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 that without the presence
of a lady constable. We also direct with the above modification in regard to the
direction issued by the High Court in clause (vii) of this appeal, this appeal is
disposed of.

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.

14
In the case of Christian Community Welfare Council of India v. State of
Maharastra17, the 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 India18), 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

17
AIR 2004 SC 7, 2004 (1) ALD Cri 11, 2004 CriLJ 14 - Bench: N S Hegde, B Singh - Date of Judgment: 15 October,
2003
18
Ibid

15
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

16
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 Bombay19, 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 case of Mrs. Bharati S. Khandhar vs Shri. Maruti Govind Jadhav, Psi20,

Even if the contention of the Respondent-State is accepted that, there are more
than 200 bailable/non-bailable warrants issued by the various Courts against the
Petitioner, that would not entitle the Police Officers to take the law in their own
hands and in fragrant violation of the aforesaid provisions, arrest the person.
The Respondents-Police Officers are bound by the provisions of the Code and
they cannot be heard to say that, they could have arrested the Petitioner in
breach of provisions of the Code in general and sub-section (4) of Section 46 of
the Code in particular, since more than 200 bailable/non-bailable warrants are
issued against the Petitioner. The Police Officers acting in their official
capacity/duties cannot frustrate the legislative intent, which grants protection to
woman by virtue of insertion of sub-section (4) to Section 46 of the Code,
which in clear words prohibits the Police Officers to effect arrest except there
are unavoidable circumstances. Even if unavoidable circumstance exist, only
with a prior permission of the Judicial Magistrate, First Class, a woman can be
arrested after sunset and before sunrise. It is true that, in exceptional
circumstances, in an appropriate case, the arrest of women after sunset and
before sunrise may be necessary. However, unless the procedure laid down

19
(AIR 1957 SC 857)
20
on 21 December, 2012

17
under sub-section (4) of Section 46 of the Code is followed, no woman can be
arrested at the whims and wills of the Police Officers.

In Subramania Chetty Re21, the 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 cannot 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

21
(Air 1941 Mad. 181)

18
kind of provision is not practical but at the same time we cannot expose the
women, most vulnerable group of society, to danger of masculine misdeeds.

In 135th Report on Women in Custody, the Law Commission had

recommended a new section 450B with respect to arrest of women. The
suggested new section was to the following effect:

“450B - Arrest of women. –

1. Where a woman is to be arrested under this Code, then 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 arresting is a female, the
police officer shall not actually touch the person of the woman for
making her arrest.
2. Except in unavoidable circumstances, no woman shall be arrested after
sunset and before sunrise, and where such unavoidable circumstances
exist, the police officer shall, by making a written report, obtain the prior
permission of the immediate superior officer not below the rank of an
Inspector for effecting such arrest or, if the case is one of extreme
urgency, he shall, after making the arrest, forthwith report the matter in
writing to his such immediate superior officer, with the reasons for arrest
and the reasons for not taking prior permission as aforesaid and shall
also make a similar report to the Magistrate within whose legal
jurisdiction the arrest has been made.”

It appears that on the basis of the above recommendation sub-section (4) of

section 46 was indeed included in the Code of Criminal Procedure
(Amendment) Bill, 1994, which unfortunately has not yet become law. Sub-
section (4) of section 46 which the Bill proposed to insert in the Code was to the
following effect:

19
“(4) Save in exceptional circumstances, no woman shall be arrested after sunset
and before sunrise and where such exceptional circumstances exist, the police
officer shall, by making a written report, obtain the prior permission of his
immediate superior officer for effecting such arrest or, if the case is one of
extreme urgency and such prior permission cannot be obtained before making
such arrest, he shall, after making the arrest, forthwith report the matter in
writing to his immediate superior officer explaining the urgency and the
reasons for not taking prior permission as aforesaid and shall also make a
report to the Magistrate within whose local jurisdiction the arrest had been
made.”

In their 154th Report on the Code of Criminal Procedure, the Law Commission
examined this issue as well along with several others. After considering the
earlier Reports of the Law Commission on the subject, the decision of the
Supreme Court in Joginder Kumar and the Third Report of the National
Police Commission, the Commission made the following recommendations:

1. Addition of a proviso to section 46(1) in the following terms:

“Provided that where a woman is to be arrested, then, unless the circumstances

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

2. Addition of a new sub-section (2) in section 46, as is indeed proposed to

be done by the 1994 (Amendment) Bill.
3. Insertion of a new sub-section, (3), in section 41 to the following effect:

“41(3). A police officer arresting a person under clause (a) of sub-section (1) of
this section must be reasonably satisfied that arrest is necessary and must

20
record such satisfaction in respect of matters covered by every clause of sub-
section (1).”

4. Addition of a new section, section 41A, to be inserted in the following

terms:

“41A(1) The police officer may, if satisfied that immediate arrest of the person
concerned is not necessary, issue to him a notice requiring him to appear
before the police officer at specified time and place for further investigation
and it shall be the duty of that person to comply with the terms of the notice.

(2) If such person fails to comply with the terms of the notice, it shall be lawful
for the police officer to arrest him for the offence mentioned therein.”

In their 172nd Report on the Review of Rape Laws, the Law Commission
recommended insertion of several provisions designed mainly to protect the
women and children. It may not be necessary to refer to the recommendations
contained in this Report because most of them deal with post-arrest stages, that
too, in the case of women and children alone.

Investigation, Trial and Detention

The investigation and trial of rape cases received serious consideration at the
hands of the National Commission for Women and the Law Commission. It has
been recommended that in rape cases the report under Section 177 should
include the medical examination report.

It is also suggested that this report should be ready within three months. Both
Commissions preferred the investigation including the collection of evidence
and trial of these cases to be conducted by women police officers. It has also
been suggested that if the victim happens to be a child under 18 years, she
should be questioned only in the presence of her parents. All the investigative
work such as preparation of statements of witnesses, medical examination of the

21
victim etc., should be done by women officers. Though the Women's
Commission insists on only women personnel, the Law Commission has
suggested that in the absence of women police officers the victim's examination
could be conducted by other police officers with the consent of the victim or
person who has the authority to give permission on her behalf. The National
Commission also recommended the inclusion of a new section which will make
it obligatory to get the victim examined by a female medical practitioner.

The belief that women adjudicators would more sensitively safeguard the
interests of women causes the National Commission for Women to suggest that
by proviso to Section 26(a) CRPC it should be provided that trial of an offence
under Section 376 of the Indian Penal Code be only tried by a court presided
over by a woman.

In my opinion these suggestions are rather unfortunate. Their makers seem not
to have looked at the problem from the standpoint of the court. Are these
Commissions working on the assumption that all men are prejudiced? Or,
alternatively, do they think that all women are pro-women? One takes a dim
view of these recommendations because they reflect a total lack of faith or
confidence in our system. They also suggest that all police officers and judges
allow themselves to be guided by their personal attitude towards certain issues.

One should not forget that the rulings both in Tukaram22 and Kewal Chand23
were given by the very same system. The view that the problems of women are
better understood by women lends support to the argument of exclusive
adjudication by women.

22
Supra no.1
23
State of Mahrashtra v. Chandra Prakash Kewal Chand Jain (1990) 1 SCC 550. It was a case where the police
officer raped a woman in his custody. Rejecting the plea that her evidence needed corroboration the Supreme
Court ruled that she cannot be put on par with accomplice. She is the victim of rape. The Evidence Act 1872
does not say that her evidence cannot be accepted unless corroborated in material particulars.

22
These arguments however are dubious as crimes are essentially social problems.
When we deal with an offence like rape, we are dealing with a social problem.
It no doubt affects women more. But a court whether functioning through a
woman or man should develop sympathetic detachment, appreciate the special
nature of the offence and decide accordingly. In examination of the victim, it
may be, the presence of a woman police officer facilitates collection of
information. All the same it is my strong view that there should not be all-
woman machinery for the investigation and trial of rape cases. The argument for
an all-woman court is also flawed because if women judges are there because of
their empathy to the victim it can easily be argued that the male accused is not
being judged by an impartial judicial system. If both the victim and the accused
should have the confidence that the system would be fair and impartial, we
should not have the system envisaged by the National Commission for Women.

In order to avoid the woman arrestee's contact with police-controlled

institutions, it has been recommended that a woman below 18 years should be
detained in a remand home or such other institution. To this end the amendment
of sub-section (2) of Section 168 has been recommended. This is a salutary
recommendation because it would help avoid the harassment of women by the
police. It is however important that the government should have proper control
over these remand homes, otherwise they may in the peculiar Indian context
become breeding centres for women criminals. The need for speedy trial in rape
cases seems to have been properly appreciated by the Law Commission. It has
thus proposed that trials of rape cases should be completed within a period of
two months from the commencement of the examination of the witness. A
proviso to Section 309(l) has been accordingly recommended.

The changes introduced in the Code to safeguard the interests of women are
laudable. Section 46 of the Code now provides that no woman can be arrested
after sunset and before sunrise, except in exceptional circumstances where the

23
woman police officer may do so after obtaining written permission of the
Judicial Magistrate concerned. The success of this provision, however, depends
on the checks put on the wide discretionary powers of arrest vested with the
police. The Law Commission of India in its 135th report on? Women in
Custody? (1989) had recommended the insertion of a separate chapter in the
Code, containing various detailed provisions to avoid harassment to women
during arrest and in custody but the amendment fails to take into account this
recommendation.24

Section 164 of the Code now provides for compulsory medical check-up of rape
victims within twenty-four hours. This would ensure that substantial evidence
against the accused is not lost. However, the law still lacks a provision for
psychiatric help to a rape victim and reference to women help groups. Another
addition in the Code could have been incorporation of the Supreme Court
guidelines issued in Delhi Domestic Working Women’s Forum v. Union of
India25 and the Malimath Committee recommendations. The guidelines
include, inter alia, the directive to police to maintain a list of lawyers capable of
handling the case of rape victims and to provide them help in rehabilitation. The
Malimath Committee had recommended that a suitable provision should be
made in the Code whereby the investigating officer should be bound to
complete the investigation of cases of rape and other sexual offences on priority
basis and requiring the court to dispose of such cases expeditiously within a
fixed span of time26.

24
http://www.ebc-india.com/lawyer/articles/2006_2_cri_9.htm
25
(1995) 1 SCC 14 : 1995 SCC (Cri) 7
26
Malimath Committee on reforms of Criminal Justice System, Government of India, Ministry of Home Affairs
(March 2003) available at http://www.pucl.org/Topics/Law/2003/ malimathrecommendations.htm

24
 Bibliography

 Contemporary criminal Law; Concepts, cases, and controversies,

Matthew lippman, SAGE Publications, United States Of America, 1st
Edition, 2007
 Contemporary criminal Law; Concepts, cases, and controversies,
Matthew lippman, SAGE Publications, United States Of America, 2nd
Edition, 2010
 Criminal Procedure, R. V. Kelkar, Eastern Book Company, Lucknow, 4th
Edition, 2001
 Fundamental Of Criminal Law, Paul H. Robinson, Little, Brown And
Company, Canada, 2nd Edition, 2007
 Sarkar On The Law Of Criminal Procedure, S. C. Sarkar, Wadhwa And
Law Company, New Delhi, 9th Edition, 2007
 Woodroffe, Commentaries on Code Of Criminal Procedure, sir Jhon
Woodroffe, Law Publishers (india) Pvt. Ltd., Allahabad, 3rd Edition,
2009
 http://www.lawteacher.net/free-law-essays/criminology/code-of-criminal-
procedore.php#ixzz3WSYiWXlY

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