SPECIFIC PROVISIONS RELATED TO WOMEN UNDER CODE OF CRIMINAL PROCEDURE,1973

INTRODUCTION

“Yatra naryastu pujyante ramante tatra Devata,

yatraitaastu na pujyante sarvaastatrafalaah kriyaah”

“Where Women are honoured, divinity blossoms there, and where ever women are dishonoured, all action no matter how noble it may be, remains unfruitful.”

This mantra in Smriti clearly shows the valuable place of respect for women in the society in ancient India, even so the status of women in practical aspects was not clear. But later on, because of political and economic, social, changes in the society, women lost her status and divine position in Indian society. Many evil traditions and practices ,customs, traditions and practices stepped in society which enslaved the women and confined her within the boundaries of the house. In scriptures the women’s status was so high but practically it was low because women were not allowed to take part in making decisions in external matters, internal matters and as well as, even in the matters of her own life like marriage. The scenario at that time was that before marriage women were dependent on their parents and after marriage dependent on her husband.

The Crime Against Women means indirect and direct  physical or mental cruelty to women or crimes in which women are victims and are characterized as Crime Against Women. The statistical official reports clearly showed a declining sex-ratio between men and women, , literacy rate of women, health status of women ,work participation rate and political participation of women. While on the other hand the spread of social evils like child marriage ,dowry deaths, , domestic violence, sexual harassment,  rape, exploitation of women workers are increasing day by day in different parts of India. Humiliation, rape, , dowry death, torture, kidnapping, molestation, wife-beating etc. have grown up over the years.

 Violence against women is present in every country, across boundaries of education, income, ethnicity ,culture, class, and age. Since time immemorial India is particularly a male dominated society and prevalence of illiteracy among women has resulted in wide spread of violence against women. [1]

Therefore, like Indian women , women  over have suffered from domestic violence like purdah system, satipratha, female infanticide ,female feoticide, , different kinds of physical, emotional and mental abuse, , cruelty, polygamy, dowry death etc. In India, family is considered to be a sacred institution and it acts as a source of furtherance of social ,mental, and spiritual well being of its members.

PROVISIONS RELATED TO WOMEN UNDER CODE OF CRIMINAL PROCEDURE,1973

  • SEC 164

RIGHT TO PRIVACY WHILE RECORDING STATEMENT

Under section 164 of CrPC, a woman who has been raped can record her statement before District Magistrate when the case is under trial and no one else needs to be present. Alternatively, she can record the statement with only one police officer and woman constable in a convenient place that is no crowded and does not provide any possibility of the statement being overheard by the third person.

  • The statement recorded under section 164 of the code focus on the statement of the witness by the magistrate which is under this section recorded under this section on oath.
  • The application for recording the statement under this section is usually filed by the prosecution
  • The object of recording the statement is to preserve the evidence, to get the account of the testimony of the witness at the first instance and while it is still fresh and to preserve retraction of the testimony at the later stage.
  • The statement recorded under section 164 of the code can be used for the corroboration of the witness’s testimony at the trail.
  • The magistrate has to ensure before recording the statement the voluntariness of a confession made before the magistrate are too well established for reiteration.
  • The magistrate has to ought to extremely careful as regards the identity of the witness/
  • Sub Section (1) of section 164 CrpC authorizes the Magistrate to record the statement of a person or his confession, no matter whether he posses jurisdiction in the case. If he does not possess such jurisdiction sub s (6) will apply
  • Only a judicial magistrate or Metropolitan Magistrate has the power to record the statement under section 164 of the Code[2].

CASES

  • In Mahabir Singh v. State of Haryana, 2001[3] court observed that, Where the Magistrate fails to explain to accused that he was not bound to make the confession and that if he did so, such confession might be used as evidence against him, that confession so recorded, cannot be taken into consideration.
  • In state (NCT of Delhi) v. Navjot Sandhu 2005 [4]the apex court observed that confessions are considered highly reliable because no rational person would make an admission against himself unless prompted by his conscience, to tell the truth.
  • SEC 51(2)

POLICE CAN’T SAY NO

A rape victim can register her complaint from any police station under Zero FIR ruling by the Supreme Court. Sometimes, the police station under which the incident occurs refuses to register the victim’s complaint in order to keep clear of responsibility and tries sending the victim to another police station.

Sub-section (2) requires that the person of a woman can be searched only by a female with strict regard to decency and this cannot be done in the presence of men. But, simply because there was some irregularity in making such search, that itself will not render the search-evidence inadmissible.

In such cases, she has the right to lodge an FIR at any police station under the provision of Zero FIR. Search by another Women only- Under section 51(2) of CrPC, when an accused is a woman another woman should make search with strict regard to decency.

  • SEC 47(2) :

OPPORTUNITY TO COME OUT PF THE HOUSE

  • Section 47(2) CrPC says, if the accused hides in the house of a female who according to custom does not appear in public, the police cannot enter the house or break the house open unless notice is given to such female to withdraw and give her reasonable facility to withdraw herself.
  • SEC 53(2)

MEDICAL EXAMINATION BY A FEMALE PRACTIONER

Under section 53(2) CrPC, when a person to be examined medically is female, then the examination shall be made only by or under the supervision of female registered medical practitioner.

It was held in State of U.P. v. Sant Prakash, that the main aim of an investigation is collection of evidence and it must be conducted by a police officer or a person enjoying the powers of a police officer or authorized by a magistrate in this behalf or a person in authority. This meaning given in code is not exhaustive. The arrest and detention, inspection of witnesses, arrangement of raids are essential part of investigation.[5]

  • SEC 160

   ATTENDANCE CANNOT BE REQUIRED AT ANY OTHER PLACE-

Section 160 CrPC protects women saying that no woman shall be required to attend any place other than a place in which she resides. Hence, a police officer cannot require the attendance of a woman, but on the contrary, he has to go to the place where she resides for making an investigation and can interrogate in the presence of a woman constable and family members or friends.

  • SEC 46(4)

NO ARREST AFTER SUNSET –

Because to concerns of violation of the rights of women, section 46(4) provides that forbids the arrest of women after sunset and before sunrise, except in exceptional circumstances, in which case the arrest can be done by a woman police officer after making a written report and obtaining a prior permission from the concerned Judicial Magistrate of First class.

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 State of Maharshtra Vs. Christian Community Welfare Council of India & Anr, (2003) [6]the Supreme Court appreciated and agreed with the object behind prohibiting arrest of a lady after sunset and before sunrise but was of the opinion that a strict compliance with such restrictions, in a given circumstance, could cause practical difficulties to the investigating agency and might even give room for evading the process of law by unscrupulous accused.

The Supreme Court went on to say that it was necessary to protect the female sought to be arrested by the police from police misdeeds but it may not be always possible and practical to have the presence of a lady constable when the necessity for such arrest arises.

State of Utter Pardesh Vs Deoman, AIR 1960 [7]SC , wherein, it was inter alia observed as follows:

Section 46, Cr. P. C does not contemplate any formality before a person can be said to be taken in custody. Submission to the custody by words of mouth or action by a person is sufficient. A person directly giving a Police Officer by word of mouth information, which may be used as evidence against him may be deemed to have submitted himself to the custody of the Police Officer.

From bare perusal of the afore-stated provisions of sub-section (4) of Section 46 of the Code, it is crystal clear that the said provision mandates that no woman shall be arrested after sunset and before sunrise save in exceptional circumstances, without the prior permission of the Judicial Magistrate First Class, in whose local jurisdiction the offence is committed or the arrest is to be made.[8]


[1] [1] Protection of Women under : Constitution, IPC, CrPC & Special Laws, https://chhattisgarh.pscnotes.com/cgpcs-mains-updated-notes-2019/cgpcs-mains-paper-vi-gs-iv/cgpcs-mains-updated-paper-7-sociology/protection-granted-to-females-crpc-under-indian-constitution-criminal-law-penal-code/

 

[3] Mahabir Singh v. State of Haryana,( 26 JULY.2001)

[4] (NCT of Delhi) v. Navjot Sandhu (4 Aug 2005)

[5] S.N. Misra, “The Code of Criminal Procedure, 1973”, Allahabad: Central Law Publications, 16th edition, 2009,

[6] State of Maharshtra Vs. Christian Community Welfare Council of India & Anr, (2003)

[7] State of Utter Pardesh Vs Deoman, AIR 1960

[8] Damini Singh , No Woman Shall Be Arrested After Sunset & Before Sunrise,http://www.legalserviceindia.com/legal/article-2177-no-woman-shall-be-arrested-after-sunset-before-sunrise.html

Aishwarya Says:

I have always been against Glorifying Over Work and therefore, in the year 2021, I have decided to launch this campaign “Balancing Life”and talk about this wrong practice, that we have been following since last few years. I will be talking to and interviewing around 1 lakh people in the coming 2021 and publish their interview regarding their opinion on glamourising Over Work.

If you are interested in participating in the same, do let me know.

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The copyright of this Article belongs exclusively to Ms. Aishwarya Sandeep. Reproduction of the same, without permission will amount to Copyright Infringement. Appropriate Legal Action under the Indian Laws will be taken.

If you would also like to contribute to my website, then do share your articles or poems at adv.aishwaryasandeep@gmail.com

We also have a Facebook Group Restarter Moms for Mothers or Women who would like to rejoin their careers post a career break or women who are enterpreneurs.

We are also running a series Inspirational Women from January 2021 to March 31,2021, featuring around 1000 stories about Indian Women, who changed the world. #choosetochallenge

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