The primary intent of the legislature is to safeguard the women. Violence against women in India has gathered mass attention in recent years with several public policy debates on the urgent need for adequate legal reforms. However, in the majority of the cases, it has been dealt that the police officers violate the law and behave inappropriately with women at times of Arrest. Crimes against women impose a significant social obstruction mainly in developing nations, creating an impediment to the engagement of women in civil society and economic chain along with other socio-economic consequences. The relationship between crime incidents and women’s development is recursive, where poor social and economic status causes increased vulnerabilities among women. The basic agenda of law enforcement agencies should be inclined towards equality of all classes. Several instances have been narrated where women are mishandled in an inappropriate manner at the times of Arrest.
The United Nations Women Report 2011 emphasizes the inclination of the ‘justice chain more gender-responsive’, citing that reporting of sexual crimes has been found to correlate positively in the presence of women police officers.
The intent of the legislature is to safeguard women with respect and dignity, but it has occurred that the police officers violate the law and behave inappropriately with women. This was the case of Bharati S. Khandhar v. Maruti Govind Jadhav.
What does the law say?
The Supreme Court of India at different occurrences has notified the Governments to pass effective laws and uplift the Principles of Equality towards safeguarding the arrest of women. The laws make it mandatory that women shall be handled by female police officers, no arrest can be made after sunset and before sunrise, pregnant women shall be provided with comfortable needs during their arrests.
Section 46:
Arrest how made-
1. In 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 kind perusal of the above proviso, it is clear that no woman can be arrested after sunset and before sunrise, however, where such exceptional circumstances exist a female Police Officer shall by making a written report, obtain the prior permission of the Judicial Magistrate First Class, to make an arrest in such situation. This enhances the requirement of the provisions of sub-section (4) of Section 46 to be two-fold. There have been several instances where section 46 (4) of the code has been violated.
Section 60A:
Section 60A of the Code of Civil Procedure 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.
Case Studies
Sheela Barse vs. State of Maharashtra
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 inasmuch.
Bharati S. Khandhar vs. Maruti Govind Jadhav
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.
Edited by Ojaswi Gupta
Approved & Published – Sakshi Raje
References
1. Bharati S. Khandhar v. Maruti Govind Jadhav AIR 2013 (1) ABR 694.
2. Kavita Manikikar of Mumbai Vs. Central Bureau of Investigation BS & FC and Ors. AIR 2018 MH 1142.
3. https://www.unwomen.org/en/digital-library/publications/2012/8/annual-report-2011-2012
4. Code of Criminal Procedure, 1973.
