RAJASTHAN STATE RAJASTHAN STATE HUMAN RIGHTS HUMAN RIGHTS COMMISSION COMMISSION Projects by Law StudentsProjects by Law Students

Under the Guidance of:Under the Guidance of:

CHAIRPERSON, JUSTICE N.K. JAINCHAIRPERSON, JUSTICE N.K. JAIN(FORMER CHIEF JUSTICE HIGH(FORMER CHIEF JUSTICE HIGH COURT COURT

OF MADRAS & KARNATAKA)OF MADRAS & KARNATAKA)

With Best ComplimentsWith Best ComplimentsRSHRCRSHRC

Under the guidance ofUnder the guidance of

Hon’ble Mr. justiceHon’ble Mr. justice

N.K. jainN.K. jain

(former chief justice of(former chief justice of

Madras & KarnatakaMadras & Karnataka

High Court)High Court)

Chairperson RSHRCChairperson RSHRC

RAJASTHAN STATE HUMAN RAJASTHAN STATE HUMAN RIGHTS COMMISSIONRIGHTS COMMISSION

Project on :Project on :Procedure For The Search And Seizure Procedure For The Search And Seizure Of The Place And Person Of A Woman Of The Place And Person Of A Woman

Under The Code Of Criminal Under The Code Of Criminal Procedure, 1973Procedure, 1973

Abhimanyu Singh YadavAbhimanyu Singh YadavB.A. LL.B. (Hons.) 2B.A. LL.B. (Hons.) 2ndnd year year

National Law University, DelhiNational Law University, DelhiPh.- 08010570100Ph.- 08010570100

abhimanyu1945@gmail.comabhimanyu1945@gmail.com

Hon’ble Chairperson and Members Hon’ble Chairperson and Members ofof

State Human Rights Commission State Human Rights Commission are:are:

Justice N.K Jain, ChairpersonJustice N.K Jain, Chairperson

Members:Members:

Justice Jagat SinghJustice Jagat Singh

Shri D.S.MeenaShri D.S.Meena

Shri Pukhraj SeerviShri Pukhraj Seervi

Basic Information about the Code Basic Information about the Code Of Criminal Procedure, 1973Of Criminal Procedure, 1973

The Code of Criminal Procedure as existing today The Code of Criminal Procedure as existing today came into force in 1973. came into force in 1973.

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

WOMAN AND THE CODEWOMAN AND THE CODE

Plurality and diversity are the inherent Plurality and diversity are the inherent

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

a. Protective Discriminationa. Protective Discrimination Protective discrimination is the policy of granting special Protective discrimination is the policy of granting special

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

b. b. Social PerceptionSocial Perception The formidable foe here is the societal role perception of The formidable foe here is the societal role perception of

women. Economic empowerment, professional competence women. Economic empowerment, professional competence and integrity of women are looked down upon even today. and integrity of women are looked down upon even today. Such a situation can be observed on a daily basis in the Such a situation can be observed on a daily basis in the conduct of the various law enforcing agencies while conduct of the various law enforcing agencies while interacting with women. Justice P.V. Dixit endorsed a similar interacting with women. Justice P.V. Dixit endorsed a similar view in the 84th Report of the Law Commission of India on view in the 84th Report of the Law Commission of India on ‘Rape & Allied Offences: Some questions of substantive law, ‘Rape & Allied Offences: Some questions of substantive law, procedure and evidence’ in the following words:procedure and evidence’ in the following words:

““Whenever a woman is called to the police station Whenever a woman is called to the police station for for interrogation or when she is arrested or detained in interrogation or when she is arrested or detained in a police a police station, she feels insecure and always station, she feels insecure and always apprehends that the apprehends that the police will subject her to bodily pain, police will subject her to bodily pain, suffering and harassment suffering and harassment and may even rape her. The and may even rape her. The feeling is held too strongly not to feeling is held too strongly not to have some basis of have some basis of fact.”fact.”

PROCEDURE FOR ARRESTPROCEDURE FOR ARREST

The word ‘arrest’, when used in its ordinary and natural sense, means the 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 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 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 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 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 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 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 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 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 called non-cognizable offences; while the ones wherein an arrest can be made without a warrant are called cognizable offences.without a warrant are called cognizable offences.

Joginder Kumar v. State of Uttar PradeshJoginder Kumar v. State of Uttar Pradesh

The honorable Supreme Court of India raised similar concerns and The honorable Supreme Court of India raised similar concerns and commented upon the same in the case of commented upon the same in the case of Joginder Kumar v. State of Uttar Joginder Kumar v. State of Uttar Pradesh Pradesh in the following words,in the following words,

““The horizon of human rights is expanding. At the same, the crime rate is 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 also increasing… The law of arrest is one of balancing individual rights, liberties and privileges on one hand, and individual duties, obligations and responsibilities 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 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 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 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…” first – the criminal or the society, the law violator or the law abiders…”

How to make an arrest (Sec. 46)How to make an arrest (Sec. 46) (Proviso)(Proviso)

(4) Save in exceptional circumstances, (4) Save in exceptional circumstances, no woman shall be arrested after sunset no woman shall be arrested after sunset and before sunrise and where such and before sunrise and where such exceptional circumstances exist, the exceptional circumstances exist, the woman police officer shall, by mailing a woman police officer shall, by mailing a written report, obtain the prior written report, obtain the prior permission of the Judicial Magistrate of permission of the Judicial Magistrate of the First Class within whose local the First Class within whose local jurisdiction the offence is committed or jurisdiction the offence is committed or the arrest is to be made.the arrest is to be made.

Rajkumari & Anr. v. SHO, Noida Rajkumari & Anr. v. SHO, Noida & Ors.& Ors.

““The main allegation in the writ petitions as also in the contempt petitions 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 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 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, 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… 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 Multiple contradicting affidavits were filed by both the parties. In view of these conflicting affidavits and no independent or corroborative material these conflicting affidavits and no independent or corroborative material having been filed on behalf of the petitioners, it is not possible to hold that 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 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 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 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 as well as the witnesses… In case the investigation officer came to the conclusion that petitioner no.1 had committed cognizable offences, he was 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 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 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 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 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 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 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 have easily filed affidavits of her son and husband, but she has chosen not to do so.” to do so.”

Law Commission of India: Other Law Commission of India: Other RecommendationsRecommendations

The 84th Law Commission Report recommended the insertion of a The 84th Law Commission Report recommended the insertion of a proposed Sec. 46(1):proposed Sec. 46(1):““Sec. 46(1) Provided that where a woman is to be arrested, then, Sec. 46(1) Provided that where a woman is to be arrested, then, unless the circumstances indicate to the contrary, her submission unless the circumstances indicate to the contrary, her submission to custody on an oral intimidation of arrest shall be presumed, and to custody on an oral intimidation of arrest shall be presumed, and unless the circumstances otherwise require or unless the police unless the circumstances otherwise require or unless the police officer arresting is female, the police officer shall not actually officer arresting is female, the police officer shall not actually touch the person of the woman for making her arrest” , but, the touch the person of the woman for making her arrest” , but, the same hasn’t been inserted till now. same hasn’t been inserted till now.

The 84th Law Commission Report also recommended the insertion The 84th Law Commission Report also recommended the insertion of a proposed Sec. 417A:of a proposed Sec. 417A:““Where a woman is arrested and there are no suitable Where a woman is arrested and there are no suitable arrangements in the locality for keeping her in custody in a place arrangements in the locality for keeping her in custody in a place of detention exclusively meant for women, she shall be sent to an of detention exclusively meant for women, she shall be sent to an institution established and maintained for the reception, care, institution established and maintained for the reception, care, protection, and welfare of women or children... except in cases protection, and welfare of women or children... except in cases where any special law requires that she should be sent to a where any special law requires that she should be sent to a protective home or other place of detention authorized for the protective home or other place of detention authorized for the purpose of such special law.” purpose of such special law.”

Rights of the Person ArrestedRights of the Person Arrested Rights of the person arrestedRights of the person arrested

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

PROCEDURE FOR SEARCH AND PROCEDURE FOR SEARCH AND SEIZURESEIZURE

Search of a Place (Section 47):Search of a Place (Section 47): (1) If any person acting under a warrant of arrest, or any police officer having authority (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 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 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 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 thereiningress 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 (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 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 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 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 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 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 person, if after notification of his authority and purposes, and demand of admittance duly made, he cannot otherwise obtain admittance: duly made, he cannot otherwise obtain admittance:

Provided that, if any such place is an apartment in the actual Provided that, if any such place is an apartment in the actual occupancy of a female (not being the person to be arrested) occupancy of a female (not being the person to be arrested) who, according to custom, does not appear in public, such who, according to custom, does not appear in public, such person or police officer shall, before entering such apartment, person or police officer shall, before entering such apartment, give notice to such female that she is at liberty to withdraw give notice to such female that she is at liberty to withdraw and shall afford her every reasonable facility for withdrawing, and shall afford her every reasonable facility for withdrawing, and may then break open the apartment and enter itand 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 (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 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 other person who, having lawfully entered for the purpose of making an arrest, is detained therein.detained therein.

The proviso of the said sub section lays The proviso of the said sub section lays down that if a Pardanashin Lady is in down that if a Pardanashin Lady is in occupation of the place then she should be occupation of the place then she should be fairly warned and given the opportunity to fairly warned and given the opportunity to withdraw before entering. The intention is withdraw before entering. The intention is also visible in Sec. 100 of the Cr. PC. In also visible in Sec. 100 of the Cr. PC. In this section, the first two subsections lay this section, the first two subsections lay down the manner of entry into the closed down the manner of entry into the closed area by the person making the search.area by the person making the search.

Further, the third sub section deals with Further, the third sub section deals with the concealment of any article by the the concealment of any article by the person on himself near the place of person on himself near the place of search. If such a person is a woman then search. If such a person is a woman then she can only be searched by a woman she can only be searched by a woman officer, with strict regard to decency. officer, with strict regard to decency.

Search of a person (Woman in Search of a person (Woman in particular) [Sec. 51(2)]particular) [Sec. 51(2)]

(2) “Whenever it is necessary to cause a female (2) “Whenever it is necessary to cause a female to be searched, the search shall be made by to be searched, the search shall be made by another female with strict regard to decencyanother female with strict regard to decency””

Sub-section 2 provides that whenever necessary, Sub-section 2 provides that whenever necessary, a female must be searched by another female a female must be searched by another female only. Further emphasis on ‘decency’ again only. Further emphasis on ‘decency’ again reflects the outlook of the legislature and how it reflects the outlook of the legislature and how it intends to make the criminal procedure more intends to make the criminal procedure more comfortable and assured for women. comfortable and assured for women.

Similar emphasis can also been seen when Similar emphasis can also been seen when a woman is to be searched by a police officer or a a woman is to be searched by a police officer or a person, under a warrant, on being reasonably person, under a warrant, on being reasonably suspected of concealing about his person any suspected of concealing about his person any article for which search should be made. Sec. 100 article for which search should be made. Sec. 100 (3) again provides that such a search must be (3) again provides that such a search must be made by a woman only, with strict regard to made by a woman only, with strict regard to decency. decency.

Seizure of PropertySeizure of Property

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

CONCLUSION CONCLUSION The procedure for the search and seizure of the person and The procedure for the search and seizure of the person and

place of a woman has been dealt with immense caution place of a woman has been dealt with immense caution under The Code of Criminal Procedure, 1973. The same is under The Code of Criminal Procedure, 1973. The same is visible in the various provisions of the code that provide visible in the various provisions of the code that provide safeguards for the protection of women from procedural safeguards for the protection of women from procedural abuse and harassment. abuse and harassment.

The necessary protection given to women in terms The necessary protection given to women in terms of arrest is evident in the sub-section (4) of Sec. 46 of the of arrest is evident in the sub-section (4) of Sec. 46 of the code, which ensured that, unless exceptional circumstances code, which ensured that, unless exceptional circumstances require, a woman cannot be arrested after sunset and require, a woman cannot be arrested after sunset and before sunrise. Further, the necessity of the arrest to be before sunrise. Further, the necessity of the arrest to be made by a lady police officer only justifies the awareness of made by a lady police officer only justifies the awareness of the law makers regarding the instances of harassment and the law makers regarding the instances of harassment and their intent to prevent the same in future. Continuous their intent to prevent the same in future. Continuous emphasis on the reliance of decency while searching the emphasis on the reliance of decency while searching the place or person of a woman, and the same to be done by a place or person of a woman, and the same to be done by a lady police officer only is a reassertion of the same. lady police officer only is a reassertion of the same.

CONCLUSION (contd.)CONCLUSION (contd.) However, despite these findings, it is also observed However, despite these findings, it is also observed

that not all of the Law Commission recommendations have that not all of the Law Commission recommendations have been duly accepted or implemented, despite there clearly been duly accepted or implemented, despite there clearly being a need for them. The absence of judicial guidelines being a need for them. The absence of judicial guidelines with respect to the procedure for search and seizure of the with respect to the procedure for search and seizure of the person and place of a woman might provide for certain person and place of a woman might provide for certain loopholes within the code. Ambiguity in interpretation of loopholes within the code. Ambiguity in interpretation of certain aspects of the key sections of the statue furthers certain aspects of the key sections of the statue furthers the mentioned problem.the mentioned problem.

Hence, while the efforts of the law makers for Hence, while the efforts of the law makers for continuously amending and modifying to code to make the continuously amending and modifying to code to make the procedure safe and comfortable for women need to procedure safe and comfortable for women need to appreciated, one cannot deny that there do exist certain appreciated, one cannot deny that there do exist certain changes needed to be made, that can only improve the changes needed to be made, that can only improve the situation. situation.

BIBLIOGRAPHYBIBLIOGRAPHY GoogleGoogle WikipediaWikipedia UnicefUnicef Books of RSHRC Books of RSHRC Code of Criminal Procedure, 1973Code of Criminal Procedure, 1973 Indian Penal Code, 1860Indian Penal Code, 1860 37th Report on ‘The Cr. PC (Sec. 1-176)’, Law Commission of India37th Report on ‘The Cr. PC (Sec. 1-176)’, Law Commission of India 84th Report on ‘Rape & Allied Offences: Some questions of substantive law, 84th Report on ‘Rape & Allied Offences: Some questions of substantive law,

procedure and evidence’, Law Commission of India, 1980procedure and evidence’, Law Commission of India, 1980 135th Report on ‘Women in Custody’, Law Commission of India135th Report on ‘Women in Custody’, Law Commission of India 154th Report on ‘The Code of Criminal Procedure (1973)’, 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 PublishingDr. Dalbir Bharti, Police and People: Role and Responsibilites, APH Publishing Dr. Dalbir Bharti, The Constitution and Criminal Justice Administration, APH PublishingDr. Dalbir Bharti, The Constitution and Criminal Justice Administration, APH Publishing Dr. Dalbir Bharti, Women and the Law, APH PublishingDr. Dalbir Bharti, Women and the Law, APH Publishing R.V. Kelkar’s Criminal Procedure, 5th Ed., Eastern Book CompanyR.V. Kelkar’s Criminal Procedure, 5th Ed., Eastern Book Company Ratanlal & Dhirajlal, The Code of Criminal Procedure, 19th (2010) Ed., LexisNexis Ratanlal & Dhirajlal, The Code of Criminal Procedure, 19th (2010) Ed., LexisNexis

Butterworths Wadhwa, NagpurButterworths Wadhwa, Nagpur

ACKNOWLEDGEMENT ACKNOWLEDGEMENT

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

THANK YOUTHANK YOU