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Published : June 16, 2012 | Author : YSRAO JUDGE
Category : Constitutional Law | Total Views : 2282 | Unrated

  
YSRAO JUDGE
Y.SRINIVASA RAO, M.A(English).,B.Ed.,LL.M.; Judicial Magistrate of I Class; Topper in LL.M
 

Guidelines on Arrest of Women & Judicial Officers

Chapter V of Criminal Procedure Code,1973 deals with ''Arrest of persons''. To know about guidelines to be followed before arrest, it is essential to refer the ruling Joginder Kumar vs State of Utter Pradesh. To know more as to guidelines during arrest, it is necessary to refer the decison D.K.Basu vs State of West Bengal. Further, to know about guidelines after arrest, it is essential to refer the ruling Sunil Batra vs Delhi Administration, Prem Shankar Shukla vs Delhi Administration and D.K.Basu's case. A fortiori, it is also necessary to see Article 20(3) of Indian Constitution, the provisions of Criminal Procedure Code,1973 relating to arrest, Article 7 of International Covenant on Civil and Political Rights,1966 and National Human Rights Commission guidelines on arrest and National Police Commission: Third report etc.

The following guidelines should be followed on Arrest of Women:

According to National Human Rights Commission guidelines on arrest, As far as practicable, women police officers should be associated where women are arrested.that too, arrest of women between sunset or sunrise should be avoided.

According to S. 51(2) when it is necessary to cause a female to be searched, the search shall be by another female with strict regard to decency.Body searches of females should only be carried out by women and with strict regard to decency.

The Hon'ble Supreme Court in Sheela Barse vs St. of Maharastra, it was held that It is the duty of the police officer making arrest to see that arrested females are segregated from men and kept in female lock-up in the police station. In case there is no separate lock–up, women should be kept in a separate room. According to Proviso, Section 160(1) Code of Criminal Procedure, 1973, Women should not be called to the police station or to any place other than their place of residence for questioning inasmuh as it says that no male person under the age of fifteen or woman shall be required to attend at any place other than the place in which such male person or woman resides.

Women should be guarded by female constables/police officers. They must be questioned in the presence of policewomen.

All necessary pre-natal and post-natal care should be provided to females who are arrested. Restraints should only be used on pregnant women as a last resort. Their safety or the safety of their foetus should never be put at risk. Women must never be restrained during labour.

According to Section 53(2) of Code of Criminal Procedure, 1973. and 10 Basic Standards for Law Enforcement Officials Proposed by Amnesty International, Medical examination of women should be carried only under the supervision of female medical practitioners.

The Following guidelines are laid down by the Hon'ble Supreme Court in its judgment in Delhi Judicial Service Association, Tis Hazari Court, Delhi vs State of Gujarat and others.

In this ruling, the Apex Court held that in view of' the paramount necessity of preserving the independence of judiciary and at the same time ensuring that infractions of law are' properly investigated the following guidelines are to be followed:

(a) If a judicial officer is to be arrested for some offence, it should be done under intimation to the District Judge or the High Court as the case may be.

(b) If facts and circumstances necessitate the immediate arrest of a judicial officer of the subordinate judiciary, a technical or formal arrest may be effected.

(c) The fact of such arrest should be immediately communicated.to the District and Sessions Judge of the concerned District and the Chief Justice of the High Court.

(d) The Judicial Officer so arrested shall not be taken to a police station, without the prior order or directions of the District & Sessions Judge of the concerned District, if available.

(e) Immediate facilities shall be provided to the Judicial Officer for communication with his family members, legal advisors and Judicial Officers, including the District & Sessions Judge.

(f) No statement of a Judicial Officer who is under arrest be recorded nor any panchnama be drawn up nor any medical test be conducted except in the presence of the Legal Advisor of the Judicial Officer concerned or another Judicial Officer of equal or higher rank, if available.

(g) There should be no handcuffing of a Judicial Officer. If, however, violent resistance to arrest is offered or there is imminent need to effect physical arrest in order to avert danger to life and limb, the person resisting arrest may be over- powered and handcuffed. In such case, immediate report shall be made to the District & Sessions Judge concerned and also to the Chief Justice of the High Court. But the burden would be on the Police to establish the necessity for effecting physical arrest and handcuffing the Judicial Officer and if it be established that the physical arrest and hand-cuffing of the Judicial Officer was unjustified, the Police Officers causing or responsible for such arrest and handcuffing would be guilty of misconduct and would also be personally liable for compensation and/or damages as may be summarily deter- mined by the High Court. It was further held that these guidelines are not exhaustive but are the minimum safeguards to be observed in case of arrest of a Judicial Officer. These should be implemented by the State Governments as well as by the High Courts. No judicial officer should visit a Police Station on his own except in connection with his official and judicial duties and functions, and this also with prior intimation to the District and Sessions Judge.

I hope that the information given supra is useful to judicial officers, lawyers, law students and others who seek information as to this matter.
******************
# 1994 (4) SCC 260
# AIR 1997 SC 610
# (1978) 4 SCC 494
# (1980) Cr L J 930
# (1979-1981),Page 32,PARA 15,48
# Section 100(3) of Code of Criminal Procedure, 1973,
# 1983 2 SCC 96
# Ibid
# http://www.amnesty.org/torture/resource/10HRSofficials.html
# 1991 AIR 2176, 1991 SCR (3) 936 . ( a Writ Petition (Criminal) no. 517,518and 523-27 of 1989.)




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