J 53 JILI 2011 227 Mumbai Advaniandcocom 20200418 212000

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53 JILI (2011) 227
Tracheotomy of Infernality in Arrest and Detention Laws: A Gender

Perspective
TRACHEOTOMY OF INFERNALITY IN ARREST AND DETENTION LAWS: A GENDER

PERSPECTIVE
by
M. Afzal Wani*
ABSTRACT
The latest advancements in human civilization have impacted development of
law in myriad ways. A very significant change in legal thinking is reflected by a
paradigmatic shift in criminal jurisprudence in as much as the accused person is to
be treated as a patient and not an incurable diseased body to be eliminated from
the society. The criminal jurisprudence has, therefore, got well influenced by
modern developments in legal thought with due orientation to democracy and
protection of human dignity. The gender has also emerged as a very significant area
of study and action influencing legal developments world over. The criminal justice
system is being improved and oriented to gender sensitivities for better protection
of women from persons in power and those virtually yielding power. Law of arrest is
a specialised area of study and needs thorough study in the context of new
thinking.
I Introduction
‘TO ERR is human’ is an old adage. But ‘crime’ is also a reality, existing in every
society. It has to be controlled with appropriate measures to keep the society in
functional harmony. To deal with this phenomenon, criminal justice system has,
therefore, been invariably a feature of all societies in different forms. In the
contemporary world, almost every society/country has an established system to
deliver justice and control crime as per its requirements. Measures are being taken
every now and then to improve the system. Earlier, the focus was on punishment of
the offender only. Now, besides the punishment of the offender,
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compensation to the victim of a crime and giving a humane treatment to the offender
are also matters of primary concern for the system. Whenever a crime takes place or
an attempt is made to commit a crime, police action is supposed to follow. The person
involved becomes a part of criminal justice process and, practically speaking, becomes
a subject of police action. Whether such a person is taken into custody or not depends
upon the nature of the charge. When arrested and put into a police lock up or jail or a
remand home, such a person remains, in every case under the grip of police or any
like custodial authority. The worry is that when the person involved happens to be a
woman, there is every possibility of her exploitation by those in whose custody she is
put. The present paper gives a detailed account of the Indian law on the subject with
possibilities of exploitation of women suspects at the hands of law enforcement
agencies and points out the inadequacies in the relevant statutory provisions with
reference to reports of various commissions, committees and the judicial
pronouncements.
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II General law of arrest and custody
Power to arrest
The general law of arrest is found in chapter five of the Code of Criminal Procedure,
1973 (Cr PC). These provisions empower a police officer to arrest, without an order
from a magistrate and without a warrant, any person:1
(a) who has been concerned in any cognizable offence, or against whom a
reasonable complaint has been made or credible information has been received,
or a reasonable suspicion exists, of his having been so concerned; or
(b) who has in his possession without lawful excuse, the burden of proving which
lies on such person, any implement of house-breaking; or
(c) who has been proclaimed as an offender either under the Cr PC or by an order of
the state government; or
(d) in whose possession anything is found which may reasonably be suspected to
be stolen property and who may reasonably be suspected of having committed
an offence with reference to such thing; or
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(e) who obstructs a police officer while in the execution of his duty, or who has
escaped, or attempts to escape, from lawful custody; or
(f) who is reasonably suspected of being a deserter from any of the armed forces;
or
(g) who has been concerned in, or against whom a reasonable complaint has been
made, or credible information has been received, or a reasonable suspicion
exists, of his having been concerned in, any act committed at any place out of
India which, if committed in India, would have been punishable as an offence,
and for which he is, under any law relating to extradition, or otherwise, liable to
be apprehended or detained in custody in India; or
(h) who, being a released convict, commits a breach of any rule about change or
absence from residence; or
(i) on whose arrest any requisition, whether written or oral, has been received from
another police officer. For the purpose of arrest on requisition, the requisition
should specify the person to be arrested and the offence or other cause for which
the arrest is to be made.
In the like manner, any officer in charge of a police station has been authorised to
arrest or cause the arrest of any person for getting security for good behaviour from
suspected persons and habitual offenders.2 Further, the arrest of any such person can
be effected who commits an offence in the presence of a police officer. Where a person
has been accused of committing a non-cognizable offence and refuses, on demand
being made by a police officer, to give his name and residence or gives false name or
residence, such a person may be arrested but such arrest shall be only for the limited
purpose of ascertaining his name and residence. After such ascertaining, he has to be
released on executing a bond with or without sureties. In case the name and residence
of such person cannot be ascertained within 24 hours from the date of arrest or if such
person fails to execute a bond as required, he would have to be presented before the
nearest magistrate having jurisdiction.3
Arrest can be made or caused to be made by a private person also. This is mainly to
put hand on proclaimed offenders and those who
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commit a non-bailable and cognisable offence in the presence of such a private

person. After arrest, the arrestee has to be handed over to the police officer or a police
station. A magistrate is also authorised to arrest and commit to custody an offender, if
the crime is committed in his presence. The members of the armed forces have been
granted exemption from such arrests.4
Procedure for arrest

The Cr PC sets out the manner in which the arrest should be made and enables a
police officer to enter a place if he has reason to believe that the person to be arrested
has entered into that place or is within that place. A police officer is also empowered to
pursue an offender in any place in India beyond their jurisdiction. However, “the
person arrested shall not be subjected to more restraint than is necessary to prevent
his escape”.5 The police officer is under an obligation to communicate forthwith to the
person arrested full particulars of the offence and grounds for which he is arrested.6
Where a person is arrested for a bailable offence without a warrant, the police officer
shall inform the person arrested that he is entitled to be released on bail and that he
may arrange for sureties on his behalf.7 There are specific provisions in the Cr PC
which provide for search of arrested persons, seizure of offensive weapons from the
arrested persons, medical examination of the arrested persons, and deputation by a
police officer or his subordinate to arrest a person without warrant.8
Section 56, which corresponds to clause (2) of article 22 of the Constitution of
India, provides that the person arrested shall not be kept in the custody of police
officer for a longer period than is reasonable and that in any event such period shall
not exceed 24 hours exclusive of the time necessary for the journey from the place of
arrest to the magistrate's court. However, if the magistrate permits the police officer
to keep such person in his custody, he can do so beyond the period of 24 hours.
Section 58 casts an obligation upon the officer in charge of a police station to report to
the specified authorities of arrests made without warrant within their jurisdiction and
of the fact whether such persons
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have been admitted to bail or not. Any person arrested by a police officer cannot be
discharged except on his own bond or bail or under the special order of a magistrate.
The Cr PC empowers the person having the lawful custody of an accused to re-arrest
him if he escapes or is rescued from his custody.9
Probabilities of abuse
Looking to the practical aspects of these provisions, they confer unlimited power on
police. For example, section 41(b) empowers a police officer to arrest a person who is
in possession of “any implement of house breaking”, the burden is placed upon that
person to justify possession of such implement and to show that it is not without
“lawful excuse”. It may be asked as to what does an “implement of house breaking”
and “lawful excuse” mean. Any iron/steel rod or any implement used in a house or a
work place can also be used for house breaking. Such a provision can be used by any
unscrupulous policeman against any person to set personal scores or to exploit
women. Similarly, section 41(d), providing for the arrest of any person found in
possession of stolen property and who may be reasonably suspected of having
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committed an offence with reference to such thing, confers wide discretion on police
leaving much scope for violation of the norms of fairness. Similarly, the expressions
such as “concerned in any cognizable offence”, “against whom a reasonable complaint
is made that he is “concerned in a cognizable offence”; “credible information”,
“suspected of being “concerned in any cognizable offence” leave a wide amplitude for
exploitation. The generality of language and the consequent wide discretion vesting in
police officers is indeed enormously threatening and has been the very source of abuse
and misuse. The qualifying words “reasonable”, “credible” and “reasonably” in the
above mentioned provisions carry no specific connotation and need practically to be
followed in the specific social context.
There are certain provisions in the Cr PC which empower the police to arrest any
person, without orders from a magistrate and without warrant, “if it appears to such
officer” that such person is designing to commit a cognizable offence and that the
commission of offence cannot be prevented otherwise.10 As regards the assessment of
an honest use of powers by a police officer, it is practically improbable. Moreover, the
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police officers making a wrongful arrest under these provisions are generally not being
proceeded against, much less punished. Persons who are subjected to excessive use of
the police power avoid complaints against police because in the existing circumstances
that involves more risks than benefits.11 Also, action against any police officer is
considered by the authorities as having demoralising effect.
The constitutional safeguards against excessive use of power of arrest, as

mentioned above, are specified in article 22 of the Constitution of India, which
declares that “no person who is arrested shall be detained in custody without being
informed, as soon as may be, of the grounds for such arrest nor shall he be denied the
right to consult, and to be defended by, a legal practitioner of his choice.”12 It further
provides that every person arrested and detained in custody shall be produced before
the nearest magistrate within twenty-four hours of such arrest excluding, of course,
the time necessary for the journey from the place of arrest to the court of magistrate
and no such person shall be detained in custody beyond the said period without the
authority of a magistrate.13 The protection, however, cannot be claimed by an enemy-
alien or a person who has been arrested under any law providing for preventive
detention.14
In actual practice, these safeguards contained in the Cr PC and the Constitution are
not much effective and the power of arrest is being wrongly and illegally exercised in a
large number of cases all over the country. There are generally complaints that the
police power of arrest is being used either to extort money and other valuables or at
the instance of an enemy of the arrestee. This power is being resorted to in civil
disputes also on the basis of a false allegation against a party at the instance of his
opponent. The worst hit in the process are women as is being frequently reported now.
The vast discretion to the police to arrest a person even in the case of a bailable
offence, whether cognizable or non-cognizable, and its further authority to make
preventive arrests,15 often results in abuse of power. It
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may not be forgotten that these vast discretionary powers are vested with the persons
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equipped with firearms, which are becoming more and more sophisticated with each
passing day and who have, so far not been accountable for their acts. This has been
the reason for the police excesses against women without accountability. Thus, these
unbridled powers are genuinely a matter of great concern for women.
Legal framework for custodial justice

The legal framework relating to custodial justice to women comprises of various
enactments passed by the Parliament or state legislatures, subordinate legislations,
executive instructions, circulars, memoranda and manuals. Besides, there are notable
judicial decisions of the Supreme Court in this context.16
As regards the substantive provisions for crimes and sentences, these are found in
the Penal Code, 1860 (IPC). There is an urgent necessity to work out sentencing
strategies appropriate to women which could not be contemplated when the IPC was
enacted. Krishna Iyer Committee on Women Prisoners has explicitly referred to this
fact.17
The Police Act, 1861, defines powers and conduct of the police for the prevention
and detection of crimes. Concerning women. It requires a fresh look. Appropriate
amendments may be made to it to reflect the special needs of women. The Iyer
committee has recommended for replacing this outmoded statute by a new one. A
complete overhauling is also required in all other relevant Acts which have been
adopted earlier in a different perspective of justice.
The Prisoners Act, 1900, consolidates the law relating to prisoners confined by order
of a court and provides for custody of prisoners in presidency towns as well as their
removal from one prison to another including discharge of prisoners. The Prisoners
(Attendance in Courts) Act, 1955, specifically makes provision for the attendance in
courts of
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persons confined in prisons for obtaining their evidence or answering a criminal

charge. This special Act supplements the Prisoners Act, 1900, to that extent. The
Transfer of Prisoners Act, 1950 is also a special Act enacted by the Parliament to
answer the specific exigencies for the removal of prisoners from one state to another.
The Identification of Prisoners Act, 1920, also involves many questions of human
rights importance.
The Prisons Act, 1894, provides for the regulation of prisons almost throughout
India. This Act defines the duties of prison officers including (a) medical officers; (b)
admission, removal and discharge of prisoners; (c) discipline of prisoners; (d) food,
clothing and bedding and different categories of prisoners as well as issues relating to
their health and employment. Above all, there are also provisions defining prison
offences and punishments. The Act regulates situation in custody as well as treatment
of jail inmates.
The Probation of Offenders Act, 1958, the Reformatories School Act, 1897 and the
Family Courts Act, 1984 are also related to the present subject. The jurisdiction of the
family courts may be extended to include all cases concerning women offenders and
speeding up justice to women in custody. Mobile judicial camps for pending cases can
be a measure to be considered. Krishna Iyer Committee in its report has
recommended nari bandigrah adalats for dispensation of justice to detainees, both
offenders and non-offenders. The mahila courts in Andhra Pradesh provide an
interesting model. The Suppression of Immoral Trafficking in Women Act, 1956,
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should also be looked into in this respect with due concern.
With respect to non-prison custodial institutions, there are several enactments, like
the Orphanages and other Charitable Homes (Supervision and Control) Act, 1960, the
Women's and Children's Institutions (Licensing) Act, 1956, the Mental Health Act,
1987 replacing the Indian Lunacy Act, 1912 and the Juvenile Justice Act, 2000.
III Judicial guidelines
The effort of the judiciary, in particular the Supreme Court, over the last more than
two decades has been to circumscribe the vast discretionary powers vested by law in
police by imposing several safeguards and to regulate it by laying down numerous
guidelines. The effort throughout has been more in the nature of preventing the abuse
and compensating the victims, while leaving it free to use the power genuinely. In
Joginder Kumar v. State of U.P.,18 while dealing with the power of arrest and its
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exercise, the Supreme Court has appropriately made a perceptive observation: “The
horizon of human rights is expanding. At the same time, the crime rate is also
increasing. Of late, this court has been receiving complaints about violation of human
rights because of indiscriminate arrests. How are we to strike a balance between the
two?”
The observation seeks the adoption of a realistic approach in the matter of police
powers. The rights, liberties and privileges of an individual vis-à-vis the society are to
be properly balanced. This is more significant because in modern times, a nation's
civility is being judged by the methods it uses in the treatment of the offenders who
are a part of it. The Supreme Court in Nandini Satpathy v. P.L. Dani,19 quoting Lewis
Mayers, stated that, “to strike the balance between the needs of law enforcement on
the one hand and the protection of the citizen from oppression and injustice at the
hands of the law-enforcement machinery on the other is a perennial problem of
statecraft. The pendulum over the years has swung to the right.” It made clear that
there exists a conflict between societal interest in effecting crime detection and
constitutional rights, which the accused individuals possess. Emphasis may shift,
depending on the circumstances, in balancing these interests as has been happening
in America. Since Miranda,20 there has been a retreat from stress on protection of the
accused and gravitation towards society's interest in convicting law-breakers.
Currently, the trend in the American jurisdiction is that “respect for (constitutional)
principles is eroded when they leap their proper bounds to interfere with the legitimate
interests of society in enforcement of its laws.”21 Our constitutional perspective has,
therefore, to be relative and cannot afford to be absolutist, especially when torture
technology, crime escalation and other social variables affect the application of the
principles in producing humane justice.22
In order to control abuse of police power, in Sheela Barse v. State of Maharastra,23
the Supreme Court held it to be absolutely essential that legal assistance must be
made available to prisoners in jails, whether they be under-trials or convicted
prisoners. The court outlined seven guidelines to come to the aid of women in custody,
viz. (i) exclusive police lockups for female suspects, (ii) interrogation of women
prisoners in the presence
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of a female police officer, (iii) arrestee being informed of the grounds of arrest
immediately, (iv) provision for legal aid, (v) visits to police lockups, (vi)
communication immediately to the nearest relatives or friends of arrested women, (vii)
inquiry by the magistrate about any torture meted out to the women arrestee and her
right to medical examination, etc.
In D.K. Basu v. State of W.B.,24 the Supreme Court issued some directions to be
followed as preventive measures in all cases of arrest or detention, till legal provisions
are made in that behalf. The directions are as follows:
(1) The police personnel carrying out the arrest and handling the interrogation of
the arrestee should bear accurate, visible and clear identification and name tags
with their designations. The particulars of all such police personnel who handle
interrogation of the arrestee must be recorded in a register.
(2) That the police officer carrying out the arrest of the arrestee shall prepare a
memo of arrest at the time of arrest and such memo shall be attested by at least
one witness, who may be either a member of the family of the arrestee or a
respectable person of the locality from where the arrest is made. It shall also be
countersigned by the arrestee and contain the time and date of arrest.
(3) A person who has been arrested or detained and is being held in custody in a
police station or interrogation centre or other lock-up, shall be entitled to have
one friend or relative or other person known to him or having interest in his
welfare being informed, as soon as practicable, that he has been arrested and is
being detained at the particular place unless the attesting witness of the memo
of arrest is himself such a friend or a relative of the arrestee.
(4) The time, place of arrest and venue of custody of an arrestee must be notified
by the police where the next friend or relative of the arrestee lives outside the
district or town through the legal-aid organisation in the district and the police
station of the area concerned telegraphically within a period of 8 to 12 hours
after the arrest.
(5) The person arrested must be made aware of this right to have someone
informed of his arrest or detention as soon as he is put under arrest or is
detained.
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(6) An entry must be made in the diary at the place of detention regarding the
arrest of the person which shall also disclose the name of the next friend of the
person who has been informed of the arrest and the names and particulars of the
police officials in whose custody the arrestee is.
(7) The arrestee should, where he so requests, be also examined at the time of his
arrest and major and minor injuries, if any, present on his/her body, must be
recorded at that time. The “Inspection Memo” must be signed both by the
arrestee and the police officer effecting the arrest and its copy provided to the
arrestee.
(8) The arrestee should be subjected to medical examination by a trained doctor
every 48 hours during his detention in custody by a doctor on the panel of
approved doctors appointed by director, health services of the concerned state or
union territory. Director, health services should prepare such a panel for all
tehsils and districts as well.
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(9) Copies of all the documents including the memo of arrest, referred to above,
should be sent to the ilaqa magistrate for his record.
(10) The arrestee may be permitted to meet his lawyer during interrogation, though
not throughout the interrogation.
(11) A police control room should be provided at all district and state headquarters
where information regarding the arrest and the place of custody of the arrestee
shall be communicated by the officer causing the arrest, within 12 hours of
effecting the arrest and at the police control room it should be displayed on a
conspicuous notice board.
To ensure the compliance of these directions, the court held that the failure to
comply with these requirements shall apart from rendering the concerned official liable
for departmental action, would also render him liable to be punished for contempt of
court and the proceedings for contempt of court may be instituted in any High Court of
the country having territorial jurisdiction over the matter. The court emphasized that
these directions flow from the right to life and personal liberty enshrined in articles 21
and 22(1) of the Constitution and need to be strictly followed. These would apply with
equal force to all other governmental agencies and are in addition to the other
constitutional and statutory safeguards and do not detract from various other
directions given by the courts from time to time in connection with the safeguarding of
the rights and dignity of the arrestee. The court further directed that these
requirements
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should be forwarded to the director general of police and the home secretary of every
state/union territory to circulate the same to every police station under their charge
and get the same notified at every police station at a conspicuous place. The Supreme
Court observed that it would also be useful and serve larger interest to broadcast the
requirements on the All India Radio besides being shown on the national network of
Doordarshan and by publishing and distributing pamphlets in the local language
containing these requirements for information of the general public. Creating
awareness about the rights of the arrestee would be a step in the right direction to
combat the evil of custodial crime and bring in transparency and accountability. The
court expressed the hope that these requirements would help to curb, if not totally
eliminate, the use of questionable methods by police during interrogation and
investigation leading to custodial commission of crimes.
IV Reports of commissions
In spite of some safeguards contained in the Cr PC and the Constitution against
abuse of power of arrest and detention, the fact remains that the power is being
wrongly and illegally exercised in a large number of cases all over the country. The
Law Commission has observed that “we are not unaware that crime rate is going up in
our country for various reasons …. Terrorism, drugs and organized crime have become
so acute that special measures have become necessary to fight them not only at the
national level but also at the international level. We also take note of the fact that
quite a number of policemen risk their lives in discharge of their duties and that they
are specially targeted by the criminal and terrorist gangs.” The Commission has,
however, pointed out that “we must also take note of and provide for the generality of
the situation all over the country and not be deflected by certain specific, temporary
situations.” It is the poor who suffer most at the hands of the police and their poverty
itself makes them suspects. Nowadays, even middle class and other well-to-do people,
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who do not have access to political power-wielders, are also becoming targets of police
excesses. In the prevailing circumstances, the fundamental significance of the human
rights needs to be appreciated and steps must be taken to preserve, protect and
promote the rule of law which constitutes the bedrock of our constitutional system.25
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The National Police Commission in its Third Report, referring to the quality of arrests
by the police in India, mentioned power of arrest as one of the chief sources of
corruption in the organisation. The report suggested that, by and large, nearly 60 per
cent of the arrests were either unnecessary or unjustified and that such unjustified
police action accounted for 43.2 per cent of the expenditure of the jails. The
Commission observed thus:26
It is obvious that a major portion of the arrests were connected with very minor
prosecutions and cannot, therefore, be regarded as quite necessary from the point
of view of crime prevention. Continued detention in jail of the persons so arrested
has also meant avoidable expenditure on their maintenance. [The Commission]
estimated that 43.2 per cent of the expenditure in the connected jails was over
such prisoners only who in the ultimate analysis need not have been arrested at all.
The Report of the National Police Commission is now more than two decades old,
Since then, the position has not improved. Even the legal aid requirement is not being
properly respected as revealed by a recent survey conducted by the students of
University School of Law and Legal Studies from 23-30 October 2009 under the
supervision of the present author and the Delhi legal services authority.
The Royal Commission had earlier suggested restrictions on the power of arrest on
the basis of the “necessity principle”. The two main objectives of this principle are that
police can exercise powers only in those cases in which it was genuinely necessary to
enable them to execute their duty to prevent the commission of offences and to
investigate crime. The commission was of the view that such restrictions would
diminish the use of arrest and produce more uniform use of powers. According to the
Commission, the detention upon arrest for an offence should continue only on one or
more of the following criteria:
a) the suspects unwillingness to identify himself;
b) the need to prevent the continuation or repetition of an offence;
c) the need to protect the arrested person himself or other persons or property;
d) the need to secure or preserve evidence of or relating to that offence or to obtain
such evidence from the suspect by questioning him; and
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e) the likelihood of the person failing to appear before court to answer any charge
made against him.27
The commission proposed the introduction of a scheme that is used in Ontario
enabling a police officer to issue what is called an ‘appearance notice’. That procedure
can be used to obtain attendance at the police station without resorting to arrest. In
this way, the accused may be directed to be finger-printed or to participate in an
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identification parade. It could also be extended to attendance for interview at a time

convenient both to the suspect and to the police officer investigating the case.28
The Third Report of the National Police Commission has also suggested that an
arrest during the investigation of a cognizable offence may be considered justified only
when: (a) the case involves a grave offence like murder, dacoity, robbery, rape, etc.
and it is necessary to arrest the accused and bring his movements under restraint to
infuse confidence among the terror stricken victims; or (b) the accused is likely to
abscond and evade the processes of law; or (c) the accused is given to violent
behaviour and is likely to commit further offences unless his movements are brought
under restraint; or (d) the accused is a habitual offender and unless kept in custody, is
likely to commit similar offences again.
Besides, through departmental instructions, a police officer making an arrest should
be made to record in the case diary the reasons for making the arrest because the
existence of power to arrest is one thing, while justification for the exercise of it is
quite another. The police officer must be able to justify the arrest apart from his power
to do so. Arrest and detention in police lockup of a person can cause incalculable harm
to the reputation and self-esteem of a person. No arrest can be made in a routine
manner on a mere allegation of commission of an offence made against a person. It
would be prudent for a police officer in the interest of protection of the constitutional
rights of a citizen and perhaps in his own interest that no arrest should be made
without reasonable satisfaction reached after some investigation as to the genuineness
and bona fides of a complaint and a reasonable belief both as to the complicity and the
need to effect arrest. Except in heinous offences, an arrest must be avoided. A notice
to person concerned to attend the police station house and not to leave station without
permission would suffice.29
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The National Police Commission also expressed a belief that these rights are
inherent in articles 21 and 22(1) of the Constitution and are required to be recognised
and scrupulously protected. For effective enforcement of these fundamental rights, the
commission set out certain requirements, similar to the directions given by the
Supreme Court in D.K. Basu case, such as: (a) an arrested person being held in
custody is entitled, if he so requests, to have one friend, relative or other person, who
is known to him or likely to take an interest in his welfare, be told, as far as is
practicable, that he has been arrested and where he is being detained; (b) the police
officer shall inform the arrested person of this right when he is brought to the police
station; and (c) an entry shall be required to be made in the diary as to who was
informed of the arrest.30 These protections from power must be held to flow from
articles 21 and 22(1) and enforced strictly.
V Process for improvement
In spite of efforts of judiciary, there is a need for providing statutory safeguards to
prevent abuse of power of arrest. Even if it is legitimately presumed that the decisions
and guidelines contained in the Supreme Court decisions were duly published in all
the states and were brought to the notice of all the police officers, the complaints
about abuse of power of arrest still continue unabated. Thus, something more needs to
be done to prevent the abuse and misuse of the power of arrest while at the same
time not hurting the societal interest. Since decisions referred to above say expressly
that the directions and guidelines issued/laid down therein are to be followed “till legal
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provisions are made in that behalf”, it is necessary to take appropriate legislative
measures for making such changes in law as may be necessary to prevent
abuse/misuse of the power of arrest.31
An important proposal about improvement in law of arrest and custody and its
better implementation is of the authorisation to the members of civil society to visit
police stations. Quite often, a person is detained in police custody without registering
the crime and without making any record of such detention/arrest. Persons are kept
for a number of days in such unlawful custody and quite often subjected to ill-
treatment
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and third-degree methods. There should be a specific provision in the Cr PC creating

an obligation on the officer in charge of the police station to permit such persons to
visit and ensure that no persons are kept in the police stations without keeping a
record of such arrests.
Every police station should maintain a custody record, which shall be open to
inspection by members of the bar and the representatives of the registered NGOs
interested in human rights protection containing the following particulars, among
others:
(a) name and address of the person arrested/detained;
(b) name, rank and badge number of the arresting officer and any accompanying
officers;
(c) the time and date of arrest and when was the person brought to police station;
(d) reasons/grounds on which arrest was effected;
(e) details of any property recovered from or at the instance of the person
arrested/detained; and
(f) names of the persons (friends or relatives of the person arrested) who were
informed of the arrest.
Another important step in improvement of laws can be to increase compoundability
of offences and effectiveness of the method of plea-bargaining. Since quite a few
offences in the IPC are essentially of civil nature, there is need for decriminalization of
law at a substantial basis.
No arrests should be made under sections 107 and 110, Cr PC or similar other
provisions. Police must be empowered to take, if necessary, a personal interim bond to
keep peace for good behaviour from such persons. This should be extended to all
similar offences under the local police Acts. Arrests under section 151 should also be
well in terms of fairness, and rare.
As regards the grant of bail, the Law Commission has proposed that in respect of all
offences other than murder, dacoity, robbery, rape and offences against the state, the
provisions of law should be made liberal and bail should be granted almost as a matter
of course except where it is apprehended that the accused may disappear and evade
arrest or where it is necessary to prevent him from committing further offences. It has
also been proposed that no person should be arrested or detained by police merely for
the purpose of questioning because such an arrest or detention amounts to
unwarranted and unlawful interference with the personal liberty of an individual
guaranteed by article 21 of the
Page: 243
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Constitution.32 Law should expressly provide that once a person is arrested, the
arresting authority should ensure the safety and well being of the detainee. Moreover,
the requirement of mandatory medical examination of the arrested person should be
followed. The decision of A.P. High Court in Challa Ramkrishna Reddy v. State of
Andhra Pradesh,33 which was later affirmed by the Supreme Court in State of A.P. v.
Challa Ramkrishna Reddy,34 about the state liability for damages for the negligent or
indifferent conduct of police/jail authorities, should be kept in mind in this regard.
Take a case where a person (a heart patient) is arrested for simple theft or simple
rioting and is not allowed to take his medicines with him at the time of his arrest and
no medicines are provided to him in spite of his requests for that and he dies. It would
certainly be too big a punishment and, in such cases, the state should be liable for
damages.
Maintenance of ‘diary’ by investigating officers, as mentioned above, is an

important issue in the present context. Sub-section (1) of section 172, Cr PC requires
every police officer making an investigation to enter his proceedings in the
investigation in a diary everyday setting forth the time at which the information
reached him, the time at which he began and closed his investigation, the place or
places visited by him and a statement of the circumstances ascertained through his
investigation. Such diary would also record and reflect the time, place and
circumstances of arrest. The Supreme Court in Shamshul Kanwar v. State of U.P.35
pointed out the vagueness prevailing in this respect saying that in every state there
are police regulations/police standing orders prescribing the manner in which such
diaries are to be maintained, but there is no uniformity among them. In view of such a
state of affairs, the Supreme Court suggested a legislative change to prevent any
confusion and vagueness in the manner of maintenance of diaries under section 172.
The contents of the diary are to be communicated to the court and the superior
officers. The significance of such a diary is evident from its relevance as a safeguard
against unfairness of police investigation.36 An amendment of section 172, Cr PC
should ensure that the time, place and circumstances of the arrest of an accused are
required to be properly recorded and reflected in the diary.
Page: 244
The Law Commission reviewed the provisions of different enactments related to the
subject in its 84th and 135th Reports, which are concerned with women in custody.
Some of the recommendations of the commission have now been given a statutory
shape as discussed below:
Not to touch body of women in custody
Earlier, section 46, Cr PC, inter alia, provided that in arresting a person, the police
officer or other person making the arrest shall actually touch or confine the body of the
person to be arrested unless there be submission to the custody by word or action.
Dealing with this section, from the point of view of arrest of women, the Law
Commission, in its Report on Rape and Allied Offences,37 had expressed the view that
a provision should be incorporated in the Cr PC to the effect that in the case of women,
their submission of custody should be presumed unless proved otherwise, and that the
police officer should not actually touch the person of the woman for making arrest. The
following proviso has been accordingly added at the appropriate place in the Cr PC:
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Provided that where a women is to be arrested, unless the circumstances
indicated 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 arresting is a female, the police officer shall not actually touch the
person of the woman for making her arrest.
The same position had been reiterated by the Law Commission in its 135th
Report.38
Not to arrest women after sunset and before sunrise
The Law Commission had also examined the question of time of arrest of women
and expressed the view that except in unavoidable circumstances, no woman should
be arrested after sunset and before sunrise. For this purpose, by 2005 amendment of
Cr PC, new sub-section (4) has been inserted in section 46, Cr PC in the following
terms:
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 making a written report obtain the prior permission of the judicial
magistrate
Page: 245
of the first class within whose local jurisdiction the offence is committed or the arrest
is to be made.
Medical examination of women accused

Section 53, Cr PC, requires that in the case of a female accused, the medical
examination should be done by a female medical practitioner. There was, however,
another type of medical examination contemplated under section 54, where the
accused himself or herself desired such examination, in order to prove his or her
innocence. The Cr PC was silent as to how far a woman could insist that such
examination be done by a female registered medical practitioner and with strict regard
to decency. The Law Commission had recommended that the Cr PC should be
amended, by providing that whenever the person of a female is to be examined under
section 54, the examination should be made only by or under the supervision of a
female registered medical practitioner, and with strict regard to decency. According to
Law Commission, when the accused herself could request for such examination, she
could make it a condition that the examination be done by a woman only.
Nevertheless, the law should itself provide for this safeguard.
The Supreme Court had suggested, inter alia, that the magistrate should inform the
arrested person about this right in case that person has any complaint against torture
by the police. The Law Commission had recommended that a provision should be
inserted in the Cr PC to provide:39
The magistrate shall, whether or not the arrested person makes a request for
examination of the body under this section, inform that person about his right to
such examination, in order to bring on record any facts which may show that an
offence against the body has been committed with respect to such person after he
was arrested.”
But, instead of that, the 2008 Cr PC amendment replaced the earlier section 54 by
making medical examination of the accused a general provision ommiting the
provision “at the request of the arrested person”.
The judiciary will have to clarify the difference between sections 53 and 54. In the
author's view, the medical examination at the request of
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Page: 246
the arrested person should continue.
Examining women in their place of residence

In general, the police can summon any person believed to be acquainted with the
facts of the case and such person can be directed to come to the police station for the
purpose. But, in the case of person below 15 years39a and also in the case of women, it
is expressly provided in the proviso to section 160(1), Cr PC, that they shall not be
called to the police station for the above purpose, but they should be examined in
their place of residence. This is an eminently sound provision, but, unfortunately, there
is no any specific sanction provided therein for its infringement. At present, the
proviso to section 160(1) reads as under:
Provided that no male person under the age of fifteen years or woman shall be
required to attend at any place other than the place in which such male person or
woman resides.
In the opinion of the Law Commission, it does not indicate very clearly that in the
context of section 160(1), the word “place” means the actual dwelling place of the
minor or woman. It is possible that it may be construed as meaning the ‘locality of
residence’. The commission has, therefore, recommended that it should be provided
that:40
[N]o male person under the age of fifteen years or woman shall be required to
attend at any place other than his or her dwelling place.
A relative, friend, etc. to be present on examination
The Law Commission has pointed out that when a ‘young person below fifteen years
or a woman is examined by the police during investigation, a relative or friend of such
male person or woman or a representative of a recognised organisation interested in
women and children's welfare should be allowed to be present. In this respect, the
following provision should be incorporated in the Cr PC:41
Where during investigation the statement of a male person under the age of
fifteen years or of a woman is recorded by a male police officer, either as first
information of an offence or in the
Page: 247
course of an investigation into an offence, a relative or friend of such male person or

woman, and also a person authorised by such organisation interested in the welfare of
women or children as is recognised in this behalf by the State Government by
notification in the official gazette, shall be allowed to remain present throughout the
period during which the statement is being recorded.
The question of providing penalty for violation of the proviso to section 160(1), Cr
PC was earlier examined by the Law Commission of India in its Report on Rape and
Allied Offences. The commission noted that merely summoning a person in violation of
this statutory mandate would presumably be punishable as wrongful restraint under
section 341, IPC, which provides a maximum punishment of up to one month
imprisonment or fine up to hundred rupees. This, being inadequate, warranted a
change. A charge under section 166, IPC (public servant disobeying direction of law
with intent to cause injury to any person) could also be made. But, in the opinion of
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-
the Commission, it would be better to have an express provision to cover such a
violation, and the provision could be appropriately placed in the IPC in the chapter on
offences by or against public servants. The Commission, therefore, recommended that
section 166A should be inserted in the IPC, in the following terms:
166A. Whoever, being a public servant:
(a) knowingly disobeys any direction of the law prohibiting him from requiring
the attendance at any place of any person for the purpose of investigation into
an offence or other matter, or
(b) knowingly disobeys any other direction of the law regulating the manner in
which he shall conduct such investigation, to the prejudice of any person shall
be punished with imprisonment for a term which may extend to one year or
with fine or with both.
The proposed offence has been recommended to be made cognisable, bailable and
triable by any magistrate. This recommendation can be carried out, as a preventive
measure, against malpractices or acts of indifference which may create situations of
harassment to women.
No capital punishment to a pregnant woman
Section 416, Cr PC, provided earlier that if a woman sentenced to death was found
to be pregnant, the High Court shall order the execution of the sentence to be
postponed and may, if it thinks fit, commute the sentence to imprisonment for life.
The Law Commission had strongly
Page: 248
felt that time had come to make commutation of the sentence mandatory in all such
cases. The change has been effected by the 2008 amendment and the section now
reads:
Postponement of capital sentence on pregnant woman. - If a woman sentenced

to death is found to be pregnant the High Court shall commute the sentence to one
of imprisonment for life.
The word postponement in the head note should be replaced by the word
“commutation” and the commuted sentence should be subject to further remission in
appropriate cases. As regards the detention of such a woman after arrest, if there are
no suitable arrangements in the locality for such detention, the woman should be sent
to an institute established and maintained under the Women's and Children's
Institutions (Licensing). Act, 1956. A new provision may be added to the Cr PC for the
purpose.
Grant of bail to women
At present, the Cr PC, while dealing with the question of bail, requires to take into
account the fact that women deserve a special consideration. While directing the court
not to release a person on bail if he is accused of an offence punishable with death or
with imprisonment for life, the Cr PC takes care to provide that this prohibition shall
not apply where the accused is a woman. The absence of a more specific provision
emphasizing the duty of the court to take into account the fact that the accused is a
woman, can be regarded as a lacuna in the present law. The existing proviso to section
437(1), which reads: “Provided that the court may direct that a person referred to in
clause (ii) be released on bail if such person is under the age of sixteen years or is a
woman or is sick or infirm” was recommended by the Commission to be replaced by
the proviso: “Provided that where the person referred to in clause (i) or clause (ii) is
under the age of sixteen years or is a woman or is sick or infirm, the court shall direct
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that such person be released on bail, unless the court, for reasons to be recorded,
considers it proper not to release such person on bail.” The 2005 Cr PC amendment
has effected this recommendation without requiring the court to record reasons for not
granting bail to a woman accused.
Suspension of sentence on pregnant woman
The Law Commission is of the view that the convicting court should have a power to
suspend the execution of any sentence of imprisonment that might have been passed
on a pregnant woman, At present, the
Page: 249
criminal law of the country gives no such discretion to the court. The peculiar needs of
a pregnant woman ought to be taken into consideration by the trial court and the law
should contain a provision, vesting in the court a discretion, to suspend execution of
the sentence of imprisonment (whether it be for life or for a specified term), subject,
of course, to certain safeguards.42
Protection of female prisoners

The Law Commission in its 135th Report proposed that the High Courts on the
administrative side should be vested with power to direct sessions judges to satisfy
themselves that female prisoners are protected and properly looked after. Further,
they should have power to take such measures as may be desirable in order to move a
state government to take necessary action for ensuring compliance in the matter.43
The Commission specifically proposed that a female prisoner on admission to jail
should be medically examined by a lady medical officer and, wherever deemed
necessary for medical reasons, she should be kept separately in a female enclosure for
such period as in the opinion of the medical officer may be necessary. Medical
examination of female prisoners should also be made on readmission to the jail after
release for a specific purpose. The Commission further proposed:
(a) If the officer in-charge or the medical officer suspects that a female prisoner is
pregnant, the female prisoner shall be sent to the district hospital for detailed
examination and report.
(b) The lady medical officer of the district government hospital to whom the female
prisoner has been referred shall certify the state of her health, pregnancy,
duration of pregnancy and probable date of delivery and the special diet, if any,
to be prescribed and other measures to be adopted.
(c) Gynaecological examination of the female prisoners shall thereafter be
performed in the district government hospital by a lady medical officer and
proper prenatal and antenatal care shall be provided to the female prisoner,
according to medical advice.
(d) In cases of advanced stage of pregnancy, the female prisoner shall be shifted to
a female ward of the government hospital.
(e) Such a pregnant female prisoner shall be kept in the woman's
Page: 250
ward of the government hospital for not less than fifteen days after the birth of a child
or for such longer period as may be advised by the gynaecologist.
Certain safeguards have also been proposed as regards the transit of female
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prisoners: (a) from one jail to another, or (b) for being taken to the court, or (c) for
investigation:
(i) a female prisoner shall not be handcuffed and shall not be required to wear any
fetters or cross-bars during such transit;
(ii) a female prisoner shall be escorted by the matron or female warden, if required
to leave the female enclosure and such matron or female warden shall remain
with the prisoner till her return to the enclosure or release from the jail; and
(iii) a female relative of the female prisoner shall be allowed to accompany the
female prisoner during transit.
Inspection of jails
The bare legislative provisions generally stand the risk of non-implementation
unless proper machinery is devised to oversee their enforcement. The Law Commission
has, therefore, recommended the inspection of jails by the judicial officers, preferably
a lady officer (where one is available), to be nominated by the sessions judge. Where a
lady judicial officer is not available, a male judicial officer to be accompanied by a lady
social worker be nominated. At places other than the headquarters of the sessions
courts, they will, at least once in every two months, make a surprise visit to jails for
inspection, with a view to:
(i) providing the arrested females an opportunity to communicate their grievances;
(ii) ascertaining the conditions in the jails and verify whether the requisite facilities
are being provided and the provisions of the law relating to female prisoners are
being observed;
(iii) bring to the notice of the sessions judge lapses, if any, on the part of the
officers in charge of jails in regard to female prisoners.
At the headquarter of the court of sessions, the sessions judge should carry out
similar inspections of the jails and forward copies of the inspection reports to the
commissioners of police (or other corresponding officers), the inspector-general
(prisons) and the state government, and make necessary recommendations. If the
authorities fail to carry out the recommendations of the sessions judge, the matter
should be brought to
Page: 251
the notice of the High Court.44 Additionally, Law Commission has found desirable that
at stated intervals, the visitors appointed by the government (two to three in each
district) should visit the jails. Of these visitors, at least one should be a medical officer
and two social workers, one of them being a woman. Not less than two visitors (one a
lady) should once in every six months, make a joint inspection of every part of the jail
in the district in respect of which they have been appointed. They should ascertain the
conditions prevailing therein and to check if the requisite facilities are being provided
and the provisions of the law are being complied with and the directions given by the
competent court are being carried out, regarding women prisoners. These visitors
should send the inspection report to the sessions judge for further action. For this
purpose, “jail” includes a police lock-up, a prison and a place where persons are kept
under detention under a law providing for preventive detention.
Protection against custodial rape

The IPC, which constitutes the general substantive criminal law of India, contains
many provisions that can be availed of by persons in custody, irrespective of sex. But,
the sexual abuse of women has received specific attention in several sections of the
IPC. The most frequently invoked sections of the IPC in his context are sections 254
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-
(indecent assault on women), 375-376 (rape) and 376B, 376C and 376D (covering
some specific situations). To prevent harassment, exploitation and sexual abuse of
women, the Criminal Law (Amendment) Act, 1983, focusing its attention on custodial
rape, has made the punishment for such rape more stringent. Section 376(2) of the
IPC, as inserted in 1983, deals specifically with rape by a police officer in certain
circumstances, including: rape of a woman in his custody; rape committed by a public
servant on a woman in his custody as such public servant; rape by a person who is on
the management or staff of a jail, remand home or other place of custody or of a
women's or children's institution; rape committed in respect of an inmate of such jail,
etc.; rape by a person who is on the management or staff of a hospital; and rape
committed on a woman in that hospital. For such custodial rape, the minimum
punishment laid down in section 376(2) is rigorous imprisonment up to ten years,
which is higher than the minimum punishment of seven years imprisonment
prescribed for an ordinary rape case. In both these cases, the imprisonment can be for
life. For adequate and special reasons, to be recorded in writing, the minimum
Page: 252
punishment can be relaxed by the court. “Hospital”, includes, inter alia, any institution
for the reception and treatment of persons requiring medical attention or
rehabilitation.
In 1983, sections 376B, 376C and 376D were inserted in the IPC to deal with
custodial sexual abuse not amounting to rape. Section 376B provides that if a public
servant takes advantage of his official position and induces and seduces any woman in
his custody or in the custody of a public servant subordinate to him to have sexual
intercourse with him, such sexual intercourse not amounting to the offence of rape,
shall be punished with imprisonment of either description for a term which may
extend to five years and shall also be liable to fine. Same punishment has been
prescribed for such intercourse by superintendent of jail, remand home, or manager of
a women's or children's institution under section 376C. Section 376D contains similar
provisions for punishment of a person for intercourse by any member of the
management or staff of a hospital with any woman in that hospital. The offences under
sections 376B, 376C and 376D are cognisable but no arrest is to be made without a
warrant or without an order of a magistrate. All the offences are bailable and can be
tried by the court of sessions only.
The Law Commission has observed that the present provisions of the IPC designed
to deter potential offenders from committing rape or cognate offences including
subtler forms of seduction or harassment, are fairly adequate so far as women in
custody are concerned.
Recommendations of the Iyer Committee
The National Expert Committee on Women Prisoners headed by V.R. Krishna Iyer,
former Judge, Supreme Court of India. constituted by the Government of India in
1987 made a number of operational recommendations referring to judicial, legislative,
administrative and participative aspects of detention of women. Some of these
recommendations are:45
(1) Greater uniformity of judicial and correctional processes to ensure equitable
custodial conditions for all citizens, men and women.
(2) Critical assessment of the efficacy of existing legislation with the specific
objective of depenalization, decriminalization and de-institutionalization;
introduction of specific provisions in IPC, Cr
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Page: 253
PC, Prison Act, Police Act, etc. to reflect the special needs of women in custody and
enlightened sentencing in view of women's responsibilities for raising their younger
children and their indispensability in households.
(3) Visiting rights of recognized individuals and institutions to custodial centres

including access to inmates and institutional records, without prejudice to the
inmate's right to privacy.
(4) Prison service to be developed as a cadre with greater representation of women,
scope for upward and lateral mobility, and parity in status vis-à-vis men in the
service and a woman DIG must be attached to every state headquarter.
(5) Women representation in police should be likewise enhanced and mobility
provided.
(6) Segregated custody is desirable for women as are specialized approaches to
them; where crimes by or against women are endemic, special booths or units
should be set up to assist women coming in conflict or contact with the judicial
system; and such booths must be managed by an integrated force of men and
women police jointly managing police stations, police lockups, escort, community
outreach, and other amenities for women.
(7) To enhance prison's corrective impact, Bandi Sabhas are recommended where
prisoners can interface freely with each other and with the management. Special
mobile women prisoner adalats have been recommended to expedite judicial
processing of inmates cases. Judicial camps have been similarly advocated for
being held inside mental homes and places of social welfare custody.
(8) Socio-legal counselling to be operated by law faculties and schools of social
work or by voluntary bodies are recommended in prisons and in other custodial
centres. These would help to bring legal aid to the users at doorstep.
(9) The media must be welcomed as an independent assessor and not frowned
upon or banned from access to custodial centres.
The above recommendations of the Iyer Committee have been widely discussed and
have had a good impact on the development of law. To get fully implemented, these
recommendations need popular understanding and support.
———
*Professor of Law and Former Dean, University School of Law and Legal Studies, GGS Indraprastha University,
Delhi. E-mail: [email protected]
1. Cr PC, s. 41(1).
2.
S. 41(1), Cr PC, for not effecting arrest, 2010 amendment to Cr PC requires the police officer to give reasons.
3. Id., s. 42.
4. Id., ss. 43-45.
5. Id., ss. 46-49.
6. Id., s. 50 (Corresponding to clause (1) of art. 22 of the Constitution of India).

7.
Ibid.
8. Id., ss. 51-55.
9. Id., ss. 59-60.
10. Id., s. 151.
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11.There is yet another group of provisions, ss. 107 to 110, in the Code which empower the magistrate to call
upon a person, in situations/circumstances stated therein, to execute a bond to keep peace or to be on good
behaviour. These provisions do not empower a police officer to arrest such persons. Yet, the fact remains that
large number of persons are arrested under these provisions as well.
12. The Constitution of India, art. 22(1).
13. Id., 22(2).
14. Id., 22(3).
15. Cr PC, s. 151.

16.Hussainara Khatoon (3) v. State of Bihar, (1980) 1 SCC 93 : AIR 1979 SC 1360; Prem Shankar Shukla v. Delhi
Admn., (1980) 3 SCC 526 : AIR 1980 SC 1535; Upendra Baxi v. State of Delhi Admn. (WP No. 2526 of 1981,
order dated 14-1981); Nandini Satpathy v. P.L. Dani, (1978) 2 SCC 424 : AIR 1978 SC 1025; Sheela Barse v.
State of Maharastra, (1983) 2 SCC 96 : AIR 1983 SC 378; State of Maharashtra v. Ravikant S. Patil, (1991) 2
SCC 373; Nilabati Behera v. State of Orissa, (1993) 2 SCC 746; Kadsa Pahadiya v. State of Bihar, (1981) 3 SCC
671 : 1981 Cri LJ 481; Madhav Hayawadanrao Hoskot v. State of Maharastra, (1978) 3 SCC 544 : AIR 1978 SC
1548; Zasrolina v. Government of Mizoram, (1981) Cr LJ 1736; Suk Das v. UT of Arunachal Pradesh, (1986) 2
SCC 401 : AIR 1986 SC 991; D.K. Basu v. State of W.B., (1997) 1 SCC 416.
17. Report on Custodial Justice for Women, para 480.5 (1987-1988).
18. (1994) 4 SCC 260 at 263.
19.
(1978) 2 SCC 424 : AIR 1978 SC 1025 at 1032.
20. Miranda v. Arizona, (1966) 334 US 436.
21. Couch v. United States, (1972) 409 US 322, 336.
22.
Supra note 19 at 1034.
23. (1983) 2 SCC 96 : AIR 1983 SC 378.
24. (1997) 1 SCC 416.
25. Law Commission of India, Working Paper on Law of Arrest 5-6 (2001).
26. National Police Commission, Third Report on Corruption in Police 31 (1980).
27.
Sir Cyril Philips, Report of the Royal Commission on Criminal Procedure 45 (1981).
28. Id. at 46.
29. See supra note 26, para. 241.
30.Id., paras. 26 to 29. The commission has made some other observations which are similar to the directions of
the Supreme Court in D.K. Basu, supra note 24.
31. See supra note 25.
32.
Ibid.
33.
AIR 1989 AP 235.
34. (2000) 5 SCC 712 : AIR 2000 SC 2083.
35. (1995) 4 SCC 430 : AIR 1995 SC 1748.
36.
See Ashok Kumar v. State, 1979 Cr LJ 1477 (Del).
37.
Law Commission of India, 84th Report on Rape and Allied Offences 14 (1980).
38. Law Commission of India, 135th Report on Women in Custody 3 (1989).
Id. at 6 (1989). The Cr PC amendment Act, 2010 requires recording of statement of sexually assaulted woman
39.
under section 161 by a police officer. For a minor victim, a blood relation should report the matter to be taken
cognizance by the court.
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-
39a.
The Cr PC (Amendment) Act 2010 has increased the age for this purpose to 18 years.
40. Ibid.
41.
Id. at 6.
42. Id. at 10.
43. Id. at 11.
44.
Id. at 12.
NCW Seminar Report on Women in Detention (2001); see also Dipangshu Chakraborty, Atrocities on Indian
45.
Women 145-47 (1999).
Disclaimer: While every effort is made to avoid any mistake or omission, this casenote/ headnote/ judgment/ act/ rule/ regulation/ circular/
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53 JILI (2011) 227

Tracheotomy of Infernality in Arrest and Detention Laws: A Gender

TRACHEOTOMY OF INFERNALITY IN ARREST AND DETENTION LAWS: A GENDER

commit a non-bailable and cognisable offence in the presence of such a private

Procedure for arrest

The constitutional safeguards against excessive use of power of arrest, as

Legal framework for custodial justice

persons confined in prisons for obtaining their evidence or answering a criminal

identification parade. It could also be extended to attendance for interview at a time

and third-degree methods. There should be a specific provision in the Cr PC creating

Maintenance of ‘diary’ by investigating officers, as mentioned above, is an

Medical examination of women accused

the arrested person should continue.

Examining women in their place of residence

course of an investigation into an offence, a relative or friend of such male person or

Postponement of capital sentence on pregnant woman. - If a woman sentenced

Protection of female prisoners

Protection against custodial rape

(3) Visiting rights of recognized individuals and institutions to custodial centres

6. Id., s. 50 (Corresponding to clause (1) of art. 22 of the Constitution of India).

15. Cr PC, s. 151.

Women 145-47 (1999).

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