In India a person is “Innocent until proven guilty”, consequently rights of arrested person is preserved under Indian Constitution. Indian legal system provides rights to an arrested people; there is even special Provision which has to be borne in mind while making arrest of a woman. No matter how grave the offence is a woman shall not be deprived of her safety and modesty. For that there are various procedures to be ensured of while making arrest a woman. Indian Legislature has thoughtfully envisaged legal provision in order to safeguard women which the arresting authority has to follow.
Firstly, no woman can be arrested by male police officer and; secondly, no woman can be arrested after sunset and before sunrise. Therefore, only Lady Police Officer can make arrest of a woman. However, if necessary for an arrest of woman to be made between sunset and sunrise then under such exceptional circumstances after getting permission from Judicial Magistrate First Class an arrest can be made of such woman. [Section 46(4) of the Code of Criminal Procedure Act 25 of 2005]
Hence, every woman should be aware that:
- She cannot be arrested after sunset and before sunrise;
- Also, a warrant is a necessity for an arrest to be made in case of Non-Cognizable offence (Police can neither register the FIR nor can investigate or effect arrest without the express permission or directions from the court);
- Whereas in case of Cognizable offence (police officer has the authority to make an arrest without a warrant and to start an investigation with or without the permission of a court) only lady Police officer can arrest a woman;
- Only female Police officer can make body-search upon her, however a male officer can make search in her house if need be;
- And, under no circumstances a male police officer can arrest her.
Bombay High Court in case of CBI vs. State of Maharashtra has stated that if these norms are violated by the police authorities in making arrest of a woman then such an arrest considered as an illegal arrest; upholding Right to Life and Liberty [Article 21 of Indian Constitution]. The breach of her rights and any harm to her modesty and safety will be taken as violation of Fundamental Rights.
If a woman finds herself in a situation where there is violation of arrest procedure by the police authority then she must:
- Refuse her arrest if due procedure of law is not followed by the arresting police authority;
- Contact to her Advocate to seek legal guidance & remedy;
- Remind her legal rights to the arresting police authority;
- Complain to the Station House Officer (SHO) of the police station where she has been arrested;
- Complain to the Magistrate having local jurisdiction.
Advocate Monika Thakkar [B.A.LL.B.(Hons.); LL.M. (Business Laws)]
Alveera Kachara [B.A.LL.B.(Hons.)]