In order to preserve the judicial machinery from the prevalent social lacuna of patriarchal domination and to promote the concept of gender equality, several laws of India have accorded certain privileges and consideration to women, through their various provisions. To ensure the same, Section 46 of the Criminal Procedure Code, 1973, (CrPC) was amended (Section 6) to make a meaningful point regarding the safety of women.
Procedure for Arrest of Women in India
Section 46 to Section 60A of the Code, 1973 deals with the detailed process of the fair arrest of a person. However, in order to safeguard a woman during her arrest, section 46 of the Code was amended under section 6 to bring Section 46 (4), which lays down that under ordinary circumstances, a woman shall not be arrested after or before sunrise except in exceptional cases where a woman police officer should take prior permission of a first-class Judicial Magistrate. Let us understand the amendment in detail:
CrPC (Amendment Act) 2005
CrPC (Amendment Act) 2005 added sub-section (4) in Section 46 of the Code to provide the procedure for arrest of women:
- A woman can be only arrested before sunset and after sunrise.
- The arrest shall be made only by a Woman Police Officer.
- For such an arrest, the Officer should obtain approval from the Judicial Magistrate First Class (not Executive Magistrate) within whose local jurisdiction.
There have been several judgments handed down by the Hon'ble Supreme Court and High Courts regarding the rights of women, including Sheela Barse vs. State of Maharashtra (1983).
The Apex Court in the Sheela Barse case held that the police officers making arrests are responsible for ensuring that arrested females are segregated from men and kept in a female-only section of the police station. If separate lock-ups are not available, the women should be kept in a separate room.
Legal rights of arrested women in India
Even if a woman is accused of an offence, maintaining her modesty is crucial. Therefore, women arrested have been granted certain general and specific rights assigned to them.
Right to free legal aid
Article 39A of the Constitution provides the right to free legal aid, this right is provided to people who are not in a position to bear the expenses of the proceedings. It is the State's obligation to provide adequate assistance at its own expense to the arrested person, which also includes women.
The State Legal Services Authorities are obligated under section 304 of CrPC to bear legal costs including the cost of printing, fees of the appointed legal counsel and many more. The same has been considerably exercised in the Hussainara Khatoon v. State of Bihar (1979) case.\
Right to inform the grounds of arrest and bail
Section 50(1) of CrPC grants rights to an arrested person to know the grounds of his/her arrest, and the police officer executing the arrest should communicate the same to him/her.
D.K. Basu vs. State of West Bengal (1986), emphasised that the right is exercisable by accused men and women as well. Furthermore, pursuant to Section 50(2) of the CrPC, a woman shall be informed of her right to be released on bail after arrest without a warrant for an offence other than a non-bailable one.
Right against handcuffing and manhandling
A woman arrested for an offence can be handcuffed only by a female police officer other than in situations of absolute necessity. In the case of Vibin P.V. vs. State of Kerala (2012), it was observed that the law must protect an individual from torture and misuse of the law by the police or any other enforcement officers.
Right to inform relatives/friends
Upon arresting a woman or man, the police officer performing the arrest must immediately inform any relative or friend of the arrested person, whomever he or she nominates for disclosure of the information. The officer should inform the arrest and the place where the arrested person is being held.
Rights during detention
A police officer is not allowed to detain an arrested person for more than 24 hours. In the case a woman is arrested, the arrangements for her custody should be made properly. Considering the modesty of women, men and women cannot be kept in the same prison.
You might be Intrested in - Do's and Dont's when you are arrested
The constant debates and conversations about the rights of women gave rise to various amendments in the CrPC. To safeguard arrested women, the Code amended certain sections related to strict guidelines, procedures, and rights of an arrested woman. This article covers the procedure and rights of women arrested. However, the first step after an arrest should be to engage the services of a criminal lawyer.
With the numerous kinds of offences and the rights that flow along with such offences, a lawyer's expertise will help assure that the rights of the arrested person are protected at every step of the arrest process.
Only a lawyer could best advise on the course of action to be adopted given the vast knowledge that the layman may not possess. To approach a criminal lawyer visit www.restthecase.com for more information.