PROJECT:-COMPARATIVE CRIMINAL LAW

TOPIC:- Rights of Female Arrestee

SUBMITTED TO:- SUBMITTED BY:

Dr. Anant Prakash Narayan Gautam Kumar Ranjan

Assistant professor, Enrollment No.:-CUSB1613125018

School of Law & Governance, Programme:-B.A.LLB.(9thsemester)

CUSB, Panchanpur, Gaya. Session: - 2016-2021

1
Contents
INTRODUCTION ............................................................................................................................................. 3
Aims and objectives of arrest ....................................................................................................................... 3
Person authorized to arrest ............................................................................................................................ 3
Rights available to arrested person ............................................................................................................... 4
 Right of accused under Indian constitution ....................................................................................... 4
2. Protection in respect for conviction of offences ............................................................................... 4
 Doctrine of “guaranteeagainst double jeopardy” article 20[2]...................................................... 4
 Prohibition aginst self incrimination or testimonial compulsion article 20[3].............................. 4
3. Protection of life and personal liberty:- No person shall be deprived of his life or personal liberty
except according to procedure established by law. ................................................................................... 5
4. PROTECTION OR SAFEGUARD OR REMEDIES: ARTICLE-22............................................... 6
 Right to be informed of grounds of arrest: article 22[1] ............................................................... 6
 Right to be defended by lawyer article 22[1] .................................................................................... 7
 Right to be produced before magistrate: article 22[2] .................................................................. 7
 Arrested person no detention beyond 24 hours except by order of the magistrate ....................... 7
5. Remedies for enforcement of rights conferred by this part............................................................... 8
Rights of arrested person under crpc............................................................................................................. 8
 Right To Know The Grounds of Arrest ............................................................................................ 8
 Information Regarding The Right To Be Released On Bail ............................................................. 8
 Right To Be Taken Before A Magistrate Without Delay.............................................................. 9
 Right Of Not Being Detained For More Than 24 Hours Without Judicial Scrutiny..................... 9
 Right To Be Examined By A Medical Practitioner ........................................................................ 10
Conclusion .................................................................................................................................................. 13

2
INTRODUCTION
The constitution of India and criminal procedure code gives some basic rights to the person
being arrested. One of the basic tenets of our legal system is the benefit of the presumption of
innocence of the accused till he is found guilty at the end of a trial on legal evidence in a
democratic society even the rights of accused are sacrosanct, the accused in India are afforded
certain rights, the most basic of which are found in the Indian constitution. The purpose of an
arrest is to bring the arrestee before a court or otherwise secure the administration of the law. An
arrest serves the function of notifying the community that an individual has been accused of a
crime and also may admonish and deter the arrested individual from committing other crimes.
Arrests can be made on both criminal charges and civil charges, although civil arrest is a drastic
measure that is not looked upon with favor by the courts.

Aims and objectives of arrest

 Production of the accused-The mere purpose of arrest is to bring a arrestee before a court
and to secure the administration of the law.
 An arrest also serve the function of notifying society that an individual has been
committed a crime and to deter him from committed any other crime in future.
 Fair trail requires that the trail proceedings are conducted on the presence of the accused
and that he is given a fair chance to defend himself.
 Further, in case the accused is found guilty at the conclusion of the trail, he must be
available in person to receive the sentence passed on him.1

Person authorized to arrest

Arrest can be made by a police officer, magistrate or any private person, like you and me can
also arrest any person but the arrest should be made according to the process mentioned
under Crpc. A police officer is authorized to arrest a person with warrant and without
warrant. The code exempts the members of Armed forces from being arrested for anything
done by them in discharge of their official duties except after obtaining the consent of the
government (Sec. 45). Any private individual may arrest a person only when the person a
proclaimed offender and the person commits a non-bailable offence and cognizable offences
in his presence (sec. 43). Any magistrate (whether Executive or judicial) may arrest a person
without a warrant (sec. 44).2

1
http://www.legalserviceindia.com/legal/article-1747-arrest-and-rights-of-arrested-person.html
2
https://www.latestlaws.com/articles/all-about-procedure-of-arrest-under-code-of-criminal-procedure

3
Rights available to arrested person
Our constitution and Crpc provides number of rights to the arrested persons. Those rights are
started from the very first of arrest to the completion of trial. In this paper I will discuss all
those rights in details.

 Right of accused under Indian constitution

1. Right to equality:- Article 14 protects the accused against any arbitrary power of the
state Constitution. Under Article 14 'Equality before law1 and Equal Protection of
Law in criminal justice administration came before the Supreme Court at several
juncture.
2. Protection in respect for conviction of offences
 Protection against ex postfact law article20 [1]
Article 20[1] of the constitution contains two parts:
1). No person shall be convicted of any offence except for violation of the law in
force at the tim e of the commission of the act charged as an offence;
2). No person shall be subject to penalty greater than that which might have been
inflicted under the law in force at the time of the commission of the offence.

Clause (1) of Article 20 of the Indian Constitution says that “no person shall be
convicted of any offence except for violation of a law in force at the time of the
commission of the act charged as an offence, nor be subjected to a penalty greater
than that which might have been inflicted under the law in force at the time of the
commission of the offence.

 Doctrine of “guaranteeagainst double jeopardy” article 20[2]

The expression 'Double Jeopardy' used in the American law, but not in our
constitution, the term double jeopardy ' means exposé to loss or injury for double tine.
The English common law rule is that "nemo debut bi's punibi prouno delicto"which
means that no one should be punished twice for one fault.
According to this doctrine, if a person is tried and acquitted or convicted of an
offence, he cannot be tried again for the same offence or on the same facts for any
other offence. This doctrine has been substantially incorporated in the Article 20(2) of
the Constitution and is also embodied in Section 300 of the Criminal Procedure Code,
1973.3
 Prohibition aginst self incrimination or testimonial compulsion article 20[3]
Article 20[3] provides that no person accused of any offence shall be compelled to be
a witness against himself. Thus Article 20(3) embodies the general principles of
English and American jurisprudence that no one shall be compelled to give testimony
which may expose him to prosecution for crime.

4
 Explaining the scope of this clause in M.P. Sharma v. Satish Chandra,3 the Supreme
Court observed that this right embodies the following essentials:
(a) It is a right pertaining to a person who is “accused of an offence.”
(b) It is a protection against “compulsion to be a witness”.
(c) It is a protection against such compulsion relating to his giving evidence “against
himself.”
Right to silence is also available to accused of a criminal offence. Right to silence is a
principle of common law and it means that normally courts tribunal of fact should not
be invited or encouraged to conclude, by parties or prosecutors that a suspect or an
accused is guilty merely because he has refused to respond to question put to him by
the police or by the Courts. The prohibition of medical or scientific experimentation
without free consent is one of the human rights of the accused. In case of Smt. Selvi
& Ors. v. State of Karnataka & Ors.4, wherein the question was- Whether involuntary
administration of scientific techniques namely Narcoanalysis, Polygraph (lie
Detector) test and Brain Electrical Activation Profile (BEAP) test violates the „right
against self-incrimination‟ enumerated in Article 20(3) of the Constitution. In answer,
it was held that it is also a reasonable restriction on „personal liberty‟ as understood
in the context of Article 21 of the Constitution.

3. Protection of life and personal liberty:- No person shall be deprived of his life or
personal liberty except according to procedure established by law.
There are many rights which are implicit in art.21 of the constitution.
a) Right Against Solitary Confinement- Although, one of the mode of
punishment is solitary confinement, but certain restrictions have imposed on
the type of punishment to protect the right of convict to mingle with other
convicts. In Sunil Batra v. Delhi Administration5, it was held 'if by imposing
solitary confinement there is total deprivation of camaraderie (friendship)
among co prisoners commingling and talking and being talked to, it would
offend Article 21 of the Constitution.
b) Right Against Inhuman Treatment-The accused and convict in criminal
system of the country have the rights to live with dignity. Therefore, they
should not be subjected to the inhuman treatment. In Kishore Singh v. State of
Rajasthan6 the Supreme Court held that the use of third degree method by
police is violative of Article 21 and directed the Government to take necessary
steps to educate the police so as to inculcate a respect for the human person.

3
AIR 1954 SC 300.
4
AIR 2010 SC1974.
5
AIR 1978 SC 1675.
6
AIR 1981 SC 625.

5
 c) Fair Trial- The fair trial is the foremost requirement of criminal proceedings
and it is utmost right of an accused. In the recent case titled as Dr. Rajesh
Talwar and another v. C.B., and another the Supreme Court observed that
Article 12 of the universal declaration of Human Rights provides for the right
to a fair trial what is enshrined in Article 21 of our Constitution. Therefore,
fair trial is the heart of Criminal jurisprudence and, in a way, an important
facet of democratic polity and is governed by rule of law. Denial of fair trial is
crucifixion of human right.
d) Right to speedy trial- Justice delayed is justice denied. This is all the more
true in a criminal trial where the accused is not released on bail during the
pendency of the trial and trial is inordinately delayed. However, the code does
not in so many words confer any such right on the accused to have his case
decided expeditiously.
In Hussainara Khatoon V. State of Bihar7, the Supreme Court considered the
problem in all its seriousness and declared that speedy trial is an essential
ingredient of „reasonable, fair and just‟ procedure guaranteed by Article 21
and that it is the constitutional obligation of the state of devise such a
procedure as would ensure speedy trial to accused. The State cannot avoid its
constitutional obligation to provide speedy trial to the accused by pleading
financial or administrative inability. The State is under a constitutional
mandate to ensure speedy trial and whatever is necessary for this purpose has
to be done by the State.

4. PROTECTION OR SAFEGUARD OR REMEDIES: ARTICLE-22

Article 22[1] and 22[2] of the Indian constitution provide the following rights to the
person arrested and detained in custody under the ordinary law of crimes

 Right to be informed of grounds of arrest: article 22[1]

Article 22 (1) of the Constitution provides that a person arrested for an offence under
ordinary law be informed as soon as may be the grounds of arrest.
In addition to the constitutional provision, Section 50 of Criminal Procedure Code
also provides for the same.
The grounds of arrest should be communicated to the arrested person in the language
understood by him; otherwise it would not amount to sufficient compliance with
constitutional requirements.

7
AIR 1979 SC 1369.

6
  Right to be defended by lawyer article 22[1]
It is one of the fundamental rights enshrined in our Constitution. Article 22 (1) of the
Constitution provides, inter alia, that no person who is arrested shall be denied the
right to consult and to be defended by a legal practitioner of his choice. The right of
the accused to have a counsel of his choice is fundamental and essential to fair trial.
The right is recognized because of the obvious fact that ordinarily an accused person
does not have the knowledge of law and the professional skill to defend him before a
court of law wherein the prosecution is conducted by a competent and experienced
prosecutor.

 Right to be produced before magistrate: article 22[2]

As per Article 22 (2) of the Constitution provides that an arrested person must be
taken to the Magistrate within 24 hours of arrest. Similar provision has been
incorporated under Section 56 of Criminal Procedure Code. A police officer making
an arrest without warrant shall, without unnecessary delay and subject to the
provisions herein contained as to bail, take or send the person arrested before a
Magistrate having jurisdiction in the case, or before the officer in charge of a police
station.

 Arrested person no detention beyond 24 hours except by order of the

magistrate

Article 22(2) of the Constitution provides: “Every person who is arrested and detained in
custody shall be produced before the nearest Magistrate within a period of twenty-four
hours of such arrest excluding the time necessary for the journey from the place of arrest
to the court of the Magistrate and no such person shall be detained in custody beyond the
said period without the authority of a Magistrate.”

The right to be brought before a Magistrate within a period of not more than 24 hours of
arrest has been created with aims:

(i) to prevent arrest and detention for the purpose of extracting confessions, or as
a means of compelling people to give information;
(ii) (ii) to prevent police stations being used as though they were prisons – a
purpose for which they are unsuitable.
(iii) to afford an early recourse to a judicial officer independent of the police on all
questions of bail or discharge. If a police officer fails to produce an arrested
person before a magistrate Within 24 hours of the arrest, he shall be held
guilty of wrongful detention.

7
5. Remedies for enforcement of rights conferred by this part

Art.32 of the Constitution of India provides remedy for the enforcement of these
fundamental rights which are available to the accused person. It is the most important
rights of all which are available to the accused person. This article provide the remedy to
the citizen whose fundamental rights are violated.

Rights of arrested person under crpc

 Right To Know The Grounds of Arrest

Firstly, according to Section 50(1) Cr.P.C. “every police officer or other person arresting
any person without warrant shall forthwith communicate to him full particulars of the
offence for which he is arrested or other grounds for such arrest.”

Secondly, when a subordinate officer is deputed by a senior police officer to arrest a

person under Section 55 Cr.P.C., such subordinate officer shall, before making the arrest,
notify to the person to be arrested the substance of the written order given by the senior
police officer specifying the offence or other cause for which the arrest is to be made.
Non- compliance with this provision will render the arrest illegal.

Thirdly, in case of arrest to be made under a warrant, Section 75 Cr.P.C. provides that
“the police officer or other person executing a warrant of arrest shall notify the substance
thereof to the person to be arrested, and if so required, shall show him the warrant.” If the
substance of the warrant is not notified, the arrest would be unlawful.

Indian constitution has also conferred on this right the status of the fundamental right.
Article 22(2) of the constitution provides that “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.

 Information Regarding The Right To Be Released On Bail

Section 50(2) Cr.P.C. provides that “where a police officer arrests without warrant any
person other than a person accused of a non- bailable offence, he shall inform the person
arrested that he is entitled to be released in bail that he may arrange for sureties on his.”
This will certainly be of help to persons who may not know about their rights to be
released on bail in case of bailable offences. As a consequence, this provision may in
some small measures, improve the relations of the people with the police and reduce
discontent against them.

8
  Right To Be Taken Before A Magistrate Without Delay

Whether the arrest is made without warrant by a police officer, or whether the arrest is
made under a warrant by any person, the person making the arrest must bring the arrested
person before a judicial officer without unnecessary delay. It is also provided that the
arrested person should not be confined in any place other than a police station before he
is taken to the magistrate. These matters have been provided in Cr.P.C. under section 56
and 76 which are as given below:

Person arrested to be taken before Magistrate or officer in charge of police station- A

police officer making an arrest without warrant shall, without unnecessary delay and
subject to the provisions herein contained as to bail, take or send the person arrested
before a Magistrate having jurisdiction in the case, or before the officer in charge of a
police station.

Person arrested to be brought before Court without delay- The police officer or other
person executing a warrant of arrest shall (subject to the provisions of section 71 as to
security) without unnecessary delay bring the person arrested before the Court before
which he is required by law to produce such person.

Provided that such delay shall not, in any case, exceed 24 hours exclusive of the time
necessary for the journey from the place of arrest to the Magistrate’s Court.

 Right Of Not Being Detained For More Than 24 Hours Without Judicial
Scrutiny

Whether the arrest is without warrant or under a warrant, the arrested person must be
brought before the magistrate or court within 24 hours. Section 57 provides as follows:

57. Person arrested not to be detained more than twenty-four hours- No police officer
shall detain in custody a person arrested without warrant for a longer period than under
all the circumstances of the case is reasonable, and such period shall not, in the absence
of a special order of a Magistrate under section 167, exceed twenty-four hours exclusive
of the time necessary for the journey from the place of arrest to the Magistrate’s Court.

This right has been further strengthened by its incorporation in the Constitution as a
fundamental right. Article 22(2) of the Constitution proves that “Every person who is
arrested and detained in custody shall be produced before the nearest magistrate within a
period of twenty-four hours of such arrest excluding the time necessary for the journey
from the place of arrest to the court of the magistrate and no such person shall be
detained in custody beyond the said period without the authority of a magistrate.” In case
of arrest under a warrant the proviso to Section 76 provides a similar rule in substance.

9
The right to be brought before a magistrate within a period of not more than 24 hours of
arrest has been created with a view-

i. To prevent arrest and detention for the purpose of extracting confessions, or as a means
of compelling people to give information;

ii. To prevent police stations being used as though they were prisons- a purpose for which
they are unsuitable;

iii. To afford to an early recourse to a judicial officer independent of the police on all
questions of bail or discharge.

In a case of Khatri(II) v. State of Bihar, the Supreme Court has strongly urged upon the
state and its police authorities to ensure that this constitutional and legal requirement to
produce an arrested person before a Judicial Magistrate within 24 hours of the arrest be
scrupulously observed. This healthy provision enables the magistrate to keep check over
the police investigation and it is necessary that the magistrates should try to enforce this
requirement and where it is found disobeyed, come heavily upon the police.

If police officer fails to produce an arrested person before a magistrate within 24 hours of
the arrest, he shall be held guilty of wrongful detention.

In a case of Poovan v. Sub- Inspector of Police it was said that whenever a complaint is
received by a magistrate that a person is arrested within his jurisdiction but has not been
produced before him within 24 hours or a complaint has made to him that a person is
being detained within his jurisdiction beyond 24 hours of his arrest, he can and should
call upon the police officer concerned; to state whether the allegations are true and if so;
on what and under whose custody; he is being so helped. If officer denies the arrest, the
magistrate can make an inquiry into the issue and pass appropriate orders.

 Right To Be Examined By A Medical Practitioner

Section 54 now renumbered as Section 54(1) provides:

54. Examination of arrested person by medical practitioner at the request of the arrested
person

When a person who is arrested, whether on a charge or otherwise, alleges, at the time
when he is produced before a Magistrate or at any time during the period of his detention
in custody that the examination of his body will afford evidence which will disprove the
commission by him of any offence or which will establish the commission by any other
person of any offence against his body, the Magistrate shall, if requested by the arrested
person so to do direct the examination of the body of such person by a registered medical
10
 practitioner unless the Magistrate considers that the request is made for the purpose of
vexation or delay or for defeating the ends of justice.

 Right available to arrested female arrestee

a) No women shall be arrested after sunset and before sunrise
According to Sec.46 (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 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 Christian Community Welfare Council of India vs. Government of

Maharashtra,8 it was held by the Bombay High Court that woman should not be arrested
after sunset and before sunrise and only in the presence of lady constables. The Court
directed the State Government to set up a Committee to formulate a comprehensive
scheme for police accountability to human rights abuse and make special provisions for
female detainees. This Right plays an important role in protecting the female prisoners
from any sexual harassment and unforeseeable tortures.

In Kavita Manikikar v. Central Bureau of Investigation, Mumbai,9 The petitioner was one
of the accused in the most talked about case “PNB Scam”, it has been contended by the
petitioner that she was called for an investigation in the said case by the respondent-CBI
for which she duly cooperated with the investigation agency. Petitioner was arrested at
about 8 p.m. after which she was produced before of the Special Judge. Petitioner claims
that she had invited the attention of the Special Judge towards her case of illegal arrest
wherein she pointed out that her arrest violated the ambit of Section 46(4) of the said Act,
though the Special Judge ignored the fact of illegal arrest and proceeded by remanding
the petitioner to the custody of the respondent-CBI for a period of 14 days.

Learned counsel for the petitioner had drawn the attention of the Court by giving due
explanation of the violation of Section 46(4) of the Criminal Procedure Code in Chapter
V that the arrest was absolutely illegal in terms that it has been clearly explained in
Section 46 for “Arrest how made”. The said provision is salutary one which provides
safeguard against the arrest of a woman after sunset and before sunrise and as per the
learned counsel, the safeguards have to be strictly adhered to.

8
AIR1996(1) BOM CR 70.
9
2018 SCC On Line Bom 1095

11
 The High Court held that the action of the respondent in arresting the petitioner is in
violation and utter disregard to of respondent CBI in arresting the Petitioner was in
violation and utter disregard to Section 46 (4) of CrPC and hence declared as illegal. The
High Court in view of the aforesaid held the concerned CBI officials liable to
pay costs of Rs.50,000/ to the petitioner.

b) Under the Criminal Procedure Code (hereafter CrPC) a woman can be arrested by male
constables, though in due regard to decency she may be searched by a female officer
only10. The anxiety of the CRPC to safeguard the interests of women is reflected in the
proviso of Section 47 which requires that if an apartment to be searched by the police is
in the occupancy of a woman who according to custom does not appear in public then the
police ought to serve her a notice to leave the place during the search. This is to avoid
intruding on her privacy and causing any embarrassment to her. Recognizing the
importance of arrest of a woman, it has been suggested that a male officer should avoid
touching the woman's body while effecting arrest. It has also been suggested that a
woman shall not be arrested after sunset and before sunrise. If she is to be arrested, the
police officer has to seek prior permission of his seniors. If this is not possible then the
arrest can be made but the fact has to be reported to the senior officers with reasons for
not taking prior permission. The magistrate is also to be informed of this fact. These
safeguards have been suggested to afford maximum protection to the woman accused.

10
Kamalabhai v. State of Maharasthra AIR 1962 Sc 1189.

12
Conclusion
It is generally believed that in spite of the various safeguards in the Cr.P.C. as well as
the in the Constitution, the power of arrest given to the police is being misused till
this day. It is also believed that the police often use their position of power to threaten
the arrested persons and take advantage of their office to extort money. There have
also been innumerable reports on custodial violence that lead many to believe that
deprivation of basic rights of the arrested persons has become commonplace
nowadays. The Mallimath Committee in its Report on the reforms in the Criminal
Justice System has stated that the accused has the right to know the rights given to
him under law and how to enforce such rights. 23 A.I.R. 1986 S.C. 494. There have
also been criticisms that the police fail to inform the persons arrested of the charge
against them and hence, let the arrested persons flounder in custody, in complete
ignorance of their alleged crimes. This has been attributed to the Colonial nature of
our Criminal Justice System where the duty of arrest was thrust upon the Indian
officers while the Britishers drew up the charge against the accused. Thus, it is
entirely possible that the English origins of the Indian Criminal Justice system may
have resulted unwittingly in the rights of the arrested persons falling through the
cracks. There is imminent need to bring in changes in Criminal Justice
Administration so that state should recognize that its primary duty is not to punish,
but to socialize and reform the wrongdoer and above all it should be clearly
understood that socialization is not identical with punishment, for its comprises
prevention, education, care and rehabilitation within the framework of social defence.
Thus, in the end we find that Rule of law regulates the functionary of every organ of
the state machinery, including the agency responsible for conducting prosecution and
investigation which must confine themselves within the four corners of the law. It is
the duty of the police to protect the rights of society. It must be remembered that this
society includes all people, including the arrested. Thus, it is still the police’s duty to
protect the rights of the arrested person. Hence, in light of the discussed provisions, a
police officer must make sure that handcuffs are not used unnecessarily, that the
accused is not harassed needlessly, that the arrested person is made aware of the
grounds of his arrest, informed whether he is entitled to bail and of course, produced
before a Magistrate within twenty-four hours of his arrest.

13
Bibliography
 Websites
 http://www.legalservicesindia.com
 https://www.cwds.ac.in
 https://lawcommissionofindia.nic.in/reports
 https://timesofindia.indiatimes.com
 https://indiankanoon.org
 https://www.latestlaws.com
 https://www.scribd.com

14