woman jail illegal detention law insider

Rights available to woman during arrest

Ayaskanta Parida

Arresting someone involves detaining a person legally through law enforcement for a period of time so that the individual in question would be brought before a judge for an offence that he/she is accused of. It has not been defined per se in either the Code of Criminal Procedure (CrPC), nor the Indian Penal Code (IPC) but it has been realized through Section 46 of the CrPC which talks about the mode of arrest where it has been seen as entailing the deprivation of one’s personal liberty. (State of Haryana & Ors vs Dinesh Kumar).

Abuse/Harassment of women has been an issue of massive discussion over the years and a subject which has seen many real-life incidents taking place which have shown that our society has been unable to treat them with the dignity that they deserve as human beings.

One such sector where these issues have occurred has been while arresting a woman. While there have been additional laws in place while a female individual is arrested, it has been realized in many cases that the said laws have not been followed properly and has resulted in the violation basic fundamental rights such as Article 21 of the Indian Constitution.

This article would be focusing on the process of arresting a woman, as formulated through the laws in place, any special considerations or so in the case of women, and prominent judicial judgements in the context of the aforementioned topic.


Chapter five of the CrPC (Sections 41-60) talks about the arrest of a person. The following rights are available to a person while being arrested, irrespective of gender-

  1. Right to Be Informed About the Grounds of Arrest– As per Article 22(1) of the Indian Constitution – “no person who is arrested shall be detained in custody without being informed as soon as may be, of the grounds of such arrest nor shall he be denied the right to consult, and to be defended by a legal practitioner of his choice.” This makes the arrested individual aware of the reason he/she is being arrested and helps him/her to decide further course of action. This has also been specified in the Sections 50(Person arrested to be informed of grounds of arrest and of right to bail), 55(Procedure when police officer deputes subordinate to arrest without warrant),75(Notification of substance of warrant) of the CrPC.

The Supreme Court discussed this section in detail in the case of Madhu Limaye and Ors and stated that “those who feel called upon to deprive other persons of liberty in the discharge of what they conceive to be their duty must, strictly and scrupulously, observe the forms and rules of law. Whenever that is not done the petitioner would be entitled to a writ of Habeas Corpus directing his release.”

  1. Right to Silence – This right has been a subject of intense discussion in the Indian Legal Domain. Article 20(3) of the Constitution provides the right of not being forced to be a witness against self, indirectly the right to silence has been construed out of it. While certain sections of Cr.P.C such as S.161(Examination of witnesses by police), S.313(Power to examine the accused) and S.315(Accused person to be competent witness) entail right to silence raise a presumption against guilt, it has been considered by the Supreme Court by a three-judge Bench in Nandini Satpathy vs. P.L. Dani.

Jt. Krishna Iyer observed that the accused was entitled to keep his mouth shut and not answer any questions if the questions were likely to expose him to guilt. This protection was available before the trial and during the trial. The learned Judge observed as follows:

“……whether we consider the Talmudic Law or the Magna Carta, the Fifth Amendment, the provisions of other constitutions or Article 20(3), the driving force behind the refusal to permit forced self-incrimination is the system of torture by investigators and courts from medieval times to modern days. Law is response to life and the English rule of the accused’s privilege of silence may easily be traced as a sharp reaction to the Court of Star Chamber when self- incrimination was not regarded as wrongful. Indeed, then the central feature of the criminal proceedings, as Holdsworth noted, was the examination of the accused.”

This has been discussed to a great extent in the Hundred Eighteenth Law Commission report.

  1. Right to be taken before Magistrate after getting arrested– A person who has been arrested has to be presented before a magistrate within 24 hours of being arrested. This has been stipulated in Article 22 (2) of the Indian Constitution and has also found mention in Sections 56 (Person arrested to be taken before Magistrate or officer in charge of police station),57 (Person arrested not to be detained more than twenty- four hours),71 (Power to direct security to be taken) and 76 (Person arrested to be brought before Court without delay) of the CrPC. These laws were considered to a great extent by the Supreme Court in the case of State of Punjab v Ajaib Singh.
  2. Right to notify a relative/friend– The apex court in the case of Arnesh Kumar Vs State of Bihar stated that an arrested individual should be given the right to inform his/her relative or friend about his arrest and the place of detention. It was also held that it is the duty of the police to inform the arrested person of this right and also inform his relatives or friend about his/her arrest and detention.
  3. Right to consult a legal practitioner- In the cases of Janardhan Reddy v State of Hyderabad and D.K. Basu v State of West Bengal, the Supreme Court upheld the right of consulting a legal practitioner by an accused as a Constitutional right under Articles 21 and 22(1) of the Constitution of India. This right has been mentioned in Sections 41 (When police may arrest without warrant), 50 (Person arrested to be informed of grounds of arrest and of right to bail), 303 (Right of person against whom proceedings are instituted to be defended) of the CrPC.
  4. Right to Medical Examination– As per Section 54 (Examination of arrested person by medical officer) of the CrPC, every accused person can demand a medical examination of his/her body by a registered medical practitioner to disprove the commission of the offence alleged against him/her. It is also the duty of the Magistrate to inform him/her of this right. The Apex Court in the case of D.K. Basu v State of West Bengal has also held that every arrested person has the right to be medically examined after every 48 hours during his detention in custody by a qualified and government-approved doctor. It was also held that at the time of examination, the injuries found on the body should be recorded. It is necessary to prepare an Inspection Memo after the examination is over and this Memo should be signed by the arrested person and the police officer making the arrest.

Special Guidelines with reference to Women

In the situation of a woman being arrested, certain legal regulations have to be followed. Also, additional rights have to be granted. They have been listed below-

  1. Proviso, Section 46 (Arrest made), Cr.P.CProvided 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. Section 46(4) (Arrest made), CrPC- 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 offence is committed or the arrest is to be made.

In the case of Bharati S. Khandar v. Maruti Govind Jadhav, it was held by the Bombay High Court that an enquiry was to be conducted against certain police officials for not following the aforementioned law. In the case of Kavita Manikikar v CBI and the State of Maharashtra, it was held that non-adherence to the provisions of Section 46(4) of the Criminal Procedure Code would absolutely amount to illegal arrest.

  1. Section 51(2) (Search of arrested person), CrPC- A woman who is arrested can be searched by only another female with strict regard to privacy and decency.
  2. Section 53(2), (Examination of accused by medical practitioner at the request of police officer) CrPC – The medical examination of an arrested woman should be conducted only by, or under the supervision of a female medical practitioner.
  3. Section 437 (When bail may be taken in case of non-bailable offence), CrPC – When a female individual is arrested for a non-bailable offence, even if the offence is very serious (punishable by death penalty even), the court can release her on bail.
  4. Separate Lockups- In the case of Sheela Barse v. State of Maharashtra, it was held by the Supreme Court that Female suspects must be kept in a separate lock-up in the police station, separate from the male suspects in order to prevent custodial violence.