Enhancing Women's Rights: Code of Criminal Procedure

1. RAJASTHAN STATE HUMAN RIGHTS COMMISSION Projects by Law Students Under the Guidance of: CHAIRPERSON, JUSTICE N.K. JAIN (FORMER CHIEF JUSTICE HIGH COURT OF MADRAS & KARNATAKA) With Best Compliments RSHRC

2. Under the guidance of Hon’ble Mr. justice N.K. jain (former chief justice of Madras & Karnataka High Court) Chairperson RSHRC

3. RAJASTHAN STATE HUMAN RIGHTS COMMISSION Project on : Procedure For The Search And Seizure Of The Place And Person Of A Woman Under The Code Of Criminal Procedure, 1973 Abhimanyu Singh Yadav B.A. LL.B. (Hons.) 2nd year National Law University, Delhi Ph.- 08010570100 abhimanyu1945@gmail.com

4. Hon’ble Chairperson and Members of State Human Rights Commission are: Justice N.K Jain, Chairperson Members: Justice Jagat Singh Shri D.S.Meena Shri Pukhraj Seervi

5. Basic Information about the Code Of Criminal Procedure, 1973 • The Code of Criminal Procedure as existing today came into force in 1973. • The Code of Criminal Procedure is mainly an adjective law of procedure. But there at the same time some provision that are in the nature of substantive law. The object of the Code is to provide machinery for the punishment of offenders against the substantive criminal law in the Indian Penal Code as well as in other Acts. The Preamble of the Code says that it is an Act to consolidate and amend the law relating to Criminal Procedure. The use of the words ‘law’ indicates that the Code does not only consolidate the provisions as contained in some particular Act but the ‘entire law relating to criminal procedure’ as found in different Acts has been consolidated.

6. WOMAN AND THE CODE • Plurality and diversity are the inherent characteristics of life in India. Accommodating the same has always been a priority of the State. As a result of the same, diverse options have been adopted by the Indian State to be responsive to the needs of the pluralistic society. In spite of the fact that India attracts considerable international criticisms for the relatively lower status of women in the country, it may also be argued that the state has been making considerable efforts and has developed various specific mechanisms to deal with the cases of abuse against women including those that have their source in tradition and customs.

7. a. Protective Discrimination • Protective discrimination is the policy of granting special privileges to the downtrodden and the underprivileged sections of society, and women. These are affirmative action programs most prominent in India, where it has been enshrined in the constitution and institutionalized. The founding fathers of our Constitution understood the need for protective discrimination in favour of women and as such, while providing for equality of all persons under Art. 14, for prohibition of discrimination on the grounds of religion, race, caste, sex or place of birth, under Art.15 and equality of opportunity in matters of public employment under Art.16 of the Constitution, specifically provided for protection in favour of women under Art.15(3) of the Constitution, which enables the State to make any special provision for women and children. The Directive Principles of State Policy contained in Part IV of the Constitution also incorporate many directives to the State to improve the status of women and for their protection as well.

8. b. Social Perception • The formidable foe here is the societal role perception of women. Economic empowerment, professional competence and integrity of women are looked down upon even today. Such a situation can be observed on a daily basis in the conduct of the various law enforcing agencies while interacting with women. Justice P.V. Dixit endorsed a similar view in the 84th Report of the Law Commission of India on ‘Rape & Allied Offences: Some questions of substantive law, procedure and evidence’ in the following words: “Whenever a woman is called to the police station for interrogation or when she is arrested or detained in a police station, she feels insecure and always apprehends that the police will subject her to bodily pain, suffering and harassment and may even rape her. The feeling is held too strongly not to have some basis of fact.”

9. PROCEDURE FOR ARREST • The word ‘arrest’, when used in its ordinary and natural sense, means the apprehension or restraint or the deprivation of one’s personal liberty to go where he pleases. When used in the legal sense in the procedure connected with criminal offences, an arrest consists of taking into custody of another person under authority empowered by law, for the purpose of holding or detaining him to answer a criminal charge and preventing the commission of a criminal offence. An arrest, in most circumstances, can only be made after obtaining the necessary warrant. A warrant may be executed at any place in India. Such offences wherein an arrest can be made only after the necessary warrant has been issued are called non-cognizable offences; while the ones wherein an arrest can be made without a warrant are called cognizable offences. • Joginder Kumar v. State of Uttar Pradesh The honorable Supreme Court of India raised similar concerns and commented upon the same in the case of Joginder Kumar v. State of Uttar Pradesh in the following words, “The horizon of human rights is expanding. At the same, the crime rate is also increasing… The law of arrest is one of balancing individual rights, liberties and privileges on one hand, and individual duties, obligations and responsibilities on the other; of weighing and balancing the right, liberties and privileges of the single individual and those of individuals collectively; of simply deciding what is wanted and where to put the weight and the emphasis of deciding which comes first – the criminal or the society, the law violator or the law abiders…”

10. How to make an arrest (Sec. 46) (Proviso) • (4) Save in exceptional circumstances, no woman shall be arrested after sunset and before sunrise and where such exceptional circumstances exist, the woman police officer shall, by mailing 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.

11. Rajkumari & Anr. v. SHO, Noida & Ors. • “The main allegation in the writ petitions as also in the contempt petitions is that petitioner no.1 was arrested by the police at about 1.30 a.m. in the night intervening 15th and 16th August, 1997. On the other hand, the specific case of the respondents is that she was not arrested in the night, as alleged, but was arrested at about 5.30 a.m. on 16th August, 1997… Multiple contradicting affidavits were filed by both the parties. In view of these conflicting affidavits and no independent or corroborative material having been filed on behalf of the petitioners, it is not possible to hold that petitioner no.1 had been arrested at 1.30 a.m. in the night or that the version given by the respondents that she was arrested at 5.30 a.m. on is not correct, which is backed by multiple affidavits filed by the respondents as well as the witnesses… In case the investigation officer came to the conclusion that petitioner no.1 had committed cognizable offences, he was perfectly within his right to arrest her and no exception can be taken to such a course of action… She was also informed that she would be released on bail in case she furnished bail bonds but she declined to do A copy of the arrest memo has also been placed on record. Apart from her own affidavit, petitioner no.1 has not filed affidavit of any other person to show that the version given by the respondents is not correct. She could have easily filed affidavits of her son and husband, but she has chosen not to do so.”

12. Law Commission of India: Other Recommendations • The 84th Law Commission Report recommended the insertion of a proposed Sec. 46(1): “Sec. 46(1) Provided that where a woman is to be arrested, then, unless the circumstances indicate to the contrary, her submission to custody on an oral intimidation of arrest shall be presumed, and unless the circumstances otherwise require or unless the police officer arresting is female, the police officer shall not actually touch the person of the woman for making her arrest” , but, the same hasn’t been inserted till now. • The 84th Law Commission Report also recommended the insertion of a proposed Sec. 417A: “Where a woman is arrested and there are no suitable arrangements in the locality for keeping her in custody in a place of detention exclusively meant for women, she shall be sent to an institution established and maintained for the reception, care, protection, and welfare of women or children... except in cases where any special law requires that she should be sent to a protective home or other place of detention authorized for the purpose of such special law.”

13. Rights of the Person Arrested • Rights of the person arrested • Lastly, it is to be added that other laws relating to the rights of the person arrested - to be informed of the grounds of arrest and the right to bail (Sec. 50), to have his family or friends be informed about the place of where the arrested person is held (Sec. 50-A), to be taken before a Magistrate (Sec. 56), and not to be detained for more than twenty four hours (Sec. 57), still remain the same for both men and women.

14. PROCEDURE FOR SEARCH AND SEIZURE • Search of a Place (Section 47): • (1) If any person acting under a warrant of arrest, or any police officer having authority to arrest, has reason to believe that the person to be arrested has entered into, or is within, any place, any person residing in, or being in charge of, such place shall, on demand of such person acting as aforesaid or such police officer, allow him such free ingress thereto, and afford all reasonable facilities for a search therein • (2) If ingress to such place cannot be obtained under sub-section (1), it shall be lawful in any case for a person acting under a warrant and in any case in which a warrant may issue, but cannot be obtained without affording the person to be arrested an opportunity of escape, for a police officer to enter such place and search therein, and in order to effect an entrance into such place, to break open any outer or inner door or window of any house or place, whether that of the person to be arrested or of any other person, if after notification of his authority and purposes, and demand of admittance duly made, he cannot otherwise obtain admittance: • Provided that, if any such place is an apartment in the actual occupancy of a female (not being the person to be arrested) who, according to custom, does not appear in public, such person or police officer shall, before entering such apartment, give notice to such female that she is at liberty to withdraw and shall afford her every reasonable facility for withdrawing, and may then break open the apartment and enter it • (3) Any police officer or other person authorised to make an arrest may break open any outer or inner door or window of any house or place in order to liberate himself or any other person who, having lawfully entered for the purpose of making an arrest, is detained therein.

15. The proviso of the said sub section lays down that if a Pardanashin Lady is in occupation of the place then she should be fairly warned and given the opportunity to withdraw before entering. The intention is also visible in Sec. 100 of the Cr. PC. In this section, the first two subsections lay down the manner of entry into the closed area by the person making the search. • Further, the third sub section deals with the concealment of any article by the person on himself near the place of search. If such a person is a woman then she can only be searched by a woman officer, with strict regard to decency.

16. Search of a person (Woman in particular) [Sec. 51(2)] (2) “Whenever it is necessary to cause a female to be searched, the search shall be made by another female with strict regard to decency” • Sub-section 2 provides that whenever necessary, a female must be searched by another female only. Further emphasis on ‘decency’ again reflects the outlook of the legislature and how it intends to make the criminal procedure more comfortable and assured for women. • Similar emphasis can also been seen when a woman is to be searched by a police officer or a person, under a warrant, on being reasonably suspected of concealing about his person any article for which search should be made. Sec. 100 (3) again provides that such a search must be made by a woman only, with strict regard to decency.

17. Seizure of Property • Though the Code doesn’t provide for a different procedure to be followed in case of seizure of some property or article belonging to a woman, it does establish a procedure that is applicable for both men and women. The same is done keeping in mind the potential opportunities of abuse provided to the law enforcing agencies during such procedures.

18. CONCLUSION • The procedure for the search and seizure of the person and place of a woman has been dealt with immense caution under The Code of Criminal Procedure, 1973. The same is visible in the various provisions of the code that provide safeguards for the protection of women from procedural abuse and harassment. • The necessary protection given to women in terms of arrest is evident in the sub-section (4) of Sec. 46 of the code, which ensured that, unless exceptional circumstances require, a woman cannot be arrested after sunset and before sunrise. Further, the necessity of the arrest to be made by a lady police officer only justifies the awareness of the law makers regarding the instances of harassment and their intent to prevent the same in future. Continuous emphasis on the reliance of decency while searching the place or person of a woman, and the same to be done by a lady police officer only is a reassertion of the same.

19. CONCLUSION (contd.) • However, despite these findings, it is also observed that not all of the Law Commission recommendations have been duly accepted or implemented, despite there clearly being a need for them. The absence of judicial guidelines with respect to the procedure for search and seizure of the person and place of a woman might provide for certain loopholes within the code. Ambiguity in interpretation of certain aspects of the key sections of the statue furthers the mentioned problem. • Hence, while the efforts of the law makers for continuously amending and modifying to code to make the procedure safe and comfortable for women need to appreciated, one cannot deny that there do exist certain changes needed to be made, that can only improve the situation.

20. BIBLIOGRAPHY • Google • Wikipedia • Unicef • Books of RSHRC • Code of Criminal Procedure, 1973 • Indian Penal Code, 1860 • 37th Report on ‘The Cr. PC (Sec. 1-176)’, Law Commission of India • 84th Report on ‘Rape & Allied Offences: Some questions of substantive law, procedure and evidence’, Law Commission of India, 1980 • 135th Report on ‘Women in Custody’, Law Commission of India • 154th Report on ‘The Code of Criminal Procedure (1973)’, Law Commission of India • Dr. Dalbir Bharti, Police and People: Role and Responsibilites, APH Publishing • Dr. Dalbir Bharti, The Constitution and Criminal Justice Administration, APH Publishing • Dr. Dalbir Bharti, Women and the Law, APH Publishing • R.V. Kelkar’s Criminal Procedure, 5th Ed., Eastern Book Company • Ratanlal & Dhirajlal, The Code of Criminal Procedure, 19th (2010) Ed., LexisNexis Butterworths Wadhwa, Nagpur

21. ACKNOWLEDGEMENT It gives me great pleasure to express my gratitude to all concerned in helping me complete my project. I am very thankful to Rajasthan State Human Rights Commission for giving me a chance to do the internship here.

22. THANK YOU