Transcript 11. procedure for the search and seizure of the place and person

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
Under the guidance of
Hon’ble Mr. justice
N.K. jain
(former chief justice of
Madras & Karnataka
High Court)
Chairperson RSHRC
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
[email protected]
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
Basic Information about the Code
Of Criminal Procedure, 1973
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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.
WOMAN AND THE CODE
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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.
a. Protective Discrimination
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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.
b. Social Perception
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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.”
PROCEDURE FOR ARREST
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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.
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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…”
How to make an arrest (Sec. 46)
(Proviso)
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(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.
Rajkumari & Anr. v. SHO, Noida &
Ors.
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“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.”
Law Commission of India: Other
Recommendations
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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.”
Rights of the Person Arrested
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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.
PROCEDURE FOR SEARCH AND
SEIZURE
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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.
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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.
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”
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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.
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.
CONCLUSION
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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.
CONCLUSION (contd.)
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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.
BIBLIOGRAPHY
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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
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.
THANK YOU