Académique Documents
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HUMAN RIGHTS
COMMISSION
Projects by Law Students
Members:
Justice Jagat Singh
Shri D.S.Meena
Shri Pukhraj Seervi
Basic Information about the Code
Of Criminal Procedure, 1973
The Code of Criminal Procedure as existing today came
into force in 1973.
The Code of Criminal Procedure is mainly an adjective
law of procedure. But there at the same time some
provision that are in the nature of substantive law. The
object of the Code is to provide machinery for the
punishment of offenders against the substantive criminal
law in the Indian Penal Code as well as in other Acts. The
Preamble of the Code says that it is an Act to consolidate
and amend the law relating to Criminal Procedure. The use
of the words ‘law’ indicates that the Code does not only
consolidate the provisions as contained in some particular
Act but the ‘entire law relating to criminal procedure’ as
found in different Acts has been consolidated.
WOMAN AND THE CODE
The honorable Supreme Court of India raised similar concerns and commented
upon the same in the case of Joginder Kumar v. State of Uttar Pradesh in the
following words,
“The horizon of human rights is expanding. At the same, the crime rate is also
increasing… The law of arrest is one of balancing individual rights, liberties and
privileges on one hand, and individual duties, obligations and responsibilities on the
other; of weighing and balancing the right, liberties and privileges of the single
individual and those of individuals collectively; of simply deciding what is wanted and
where to put the weight and the emphasis of deciding which comes first – the
criminal or the society, the law violator or the law abiders…”
How to make an arrest (Sec. 46)
(Proviso)
(4) Save in exceptional circumstances, no
woman shall be arrested after sunset and
before sunrise and where such exceptional
circumstances exist, the woman police
officer shall, by mailing a written report,
obtain the prior permission of the Judicial
Magistrate of the First Class within whose
local jurisdiction the offence is committed
or the arrest is to be made.
Rajkumari & Anr. v. SHO, Noida &
Ors.
“The main allegation in the writ petitions as also in the contempt petitions is that
petitioner no.1 was arrested by the police at about 1.30 a.m. in the night intervening
15th and 16th August, 1997. On the other hand, the specific case of the respondents
is that she was not arrested in the night, as alleged, but was arrested at about 5.30
a.m. on 16th August, 1997… Multiple contradicting affidavits were filed by both the
parties. In view of these conflicting affidavits and no independent or corroborative
material having been filed on behalf of the petitioners, it is not possible to hold that
petitioner no.1 had been arrested at 1.30 a.m. in the night or that the version given
by the respondents that she was arrested at 5.30 a.m. on is not correct, which is
backed by multiple affidavits filed by the respondents as well as the witnesses… In
case the investigation officer came to the conclusion that petitioner no.1 had
committed cognizable offences, he was perfectly within his right to arrest her and no
exception can be taken to such a course of action… She was also informed that she
would be released on bail in case she furnished bail bonds but she declined to do A
copy of the arrest memo has also been placed on record. Apart from her own
affidavit, petitioner no.1 has not filed affidavit of any other person to show that the
version given by the respondents is not correct. She could have easily filed affidavits
of her son and husband, but she has chosen not to do so.”
Law Commission of India: Other
Recommendations
The 84th Law Commission Report recommended the insertion of a proposed
Sec. 46(1):
“Sec. 46(1) Provided that where a woman is to be arrested, then, unless
the circumstances indicate to the contrary, her submission to custody on an
oral intimidation of arrest shall be presumed, and unless the circumstances
otherwise require or unless the police officer arresting is female, the police
officer shall not actually touch the person of the woman for making her
arrest” , but, the same hasn’t been inserted till now.
The 84th Law Commission Report also recommended the insertion of a
proposed Sec. 417A:
“Where a woman is arrested and there are no suitable arrangements in the
locality for keeping her in custody in a place of detention exclusively meant
for women, she shall be sent to an institution established and maintained
for the reception, care, protection, and welfare of women or children...
except in cases where any special law requires that she should be sent to a
protective home or other place of detention authorized for the purpose of
such special law.”
Rights of the Person Arrested
Rights of the person arrested
Lastly, it is to be added that other laws relating
to the rights of the person arrested - to be
informed of the grounds of arrest and the right
to bail (Sec. 50), to have his family or friends
be informed about the place of where the
arrested person is held (Sec. 50-A), to be
taken before a Magistrate (Sec. 56), and not to
be detained for more than twenty four hours
(Sec. 57), still remain the same for both men
and women.
PROCEDURE FOR SEARCH AND
SEIZURE
Search of a Place (Section 47):
(1) If any person acting under a warrant of arrest, or any police officer having authority to arrest,
has reason to believe that the person to be arrested has entered into, or is within, any place, any
person residing in, or being in charge of, such place shall, on demand of such person acting as
aforesaid or such police officer, allow him such free ingress thereto, and afford all reasonable
facilities for a search therein
(2) If ingress to such place cannot be obtained under sub-section (1), it shall be lawful in any case
for a person acting under a warrant and in any case in which a warrant may issue, but cannot be
obtained without affording the person to be arrested an opportunity of escape, for a police officer to
enter such place and search therein, and in order to effect an entrance into such place, to break
open any outer or inner door or window of any house or place, whether that of the person to be
arrested or of any other person, if after notification of his authority and purposes, and demand of
admittance duly made, he cannot otherwise obtain admittance: