Bail for Women | 05 Sep 2022

Why in News?

Recently, the Supreme Court of India granted interim bail to activist Teesta Setalvad stating that “the relief of interim bail is granted to the appellant (Teesta) in the peculiar facts including the fact that the appellant happens to be a lady”.

• The Chief Justice of India also made a reference to the bail provision in Code of Criminal Procedure CrPC that says “being a woman is a possible ground for granting bail, even when otherwise it cannot be considered.”

What are the Provisions available for Bail for Women?

• The Code of Criminal Procedure CrPC:
  • Section 437 of the CrPC deals with bail in case of non-bailable offences. According to it, person shall not be released on bail if:
    • There is reasonable ground to believe that he has committed an offence punishable with death or life imprisonment, or
    • He has been previously convicted for an offence punishable with death, life imprisonment, or for a term of seven years or more, or
    • He has been convicted on two or more occasions on other offences with a term between three and seven years.
  • However, Section 437 of the CrPC also contains exceptions such as the court may grant bail even in these cases, if such person is under the age of 16 or is a woman or is sick or infirm.
• Other Provisions:
  • When a police officer requires the attendance of any person who he believes is acquainted with a case under investigation, the person has to appear before the officer (Section 160).
    • However, no woman shall be required to do so at any place other than the place in which she resides.
    • In its 84^th and 135^th Report in 1980 and 1989, the Law Commission suggested that the word ‘place’ is ambiguous, and it would be better to amend it to ‘dwelling place’.

What does the CrPC say on the Arrest of a Woman?

• Process of Arrest:
  • A police officer may arrest a person who has committed a cognisable offence without a judicial order or a warrant (Section 41).
    • If the person does not submit to custody based on the word or action of the police, Section 46 enables the police officer to confine the person physically to effect the arrest.
      • In 2009, a provision was added in CrPC to the effect that where a woman is to be arrested, only a female police officer may touch the woman’s person, unless circumstances otherwise require.
  • In 2005, through an amendment, a subsection was added to Section 46 to prohibit the arrest of a woman after sunset or before sunrise.
    • In exceptional circumstances, a woman police officer can obtain the prior permission of a judicial magistrate to make the arrest.
• In Cases of Non-Appearance:
  • The police may seek entry into any premises where they suspect that a person who is required to be arrested is present.
    • In a situation where any such place is an apartment in the occupancy of a female (who is not the person to be arrested) and if the woman is one who does not appear in public, the police have to give notice to her so that she may withdraw before they enter it (Provision to Section 47).
      • It adds that they shall afford her every reasonable facility for withdrawing before they break open and enter the place.
  • In another exception, a woman who intends to file a defamation case, but is one who does not appear in public according to custom, can ask someone else to file the complaint on her behalf.

What are Constitutional Provisions in India against Arrest?

• Article 22:
  • Article 22 of the Indian Constitution grants protection to persons who are arrested or detained.
    • Detention is of two types:
      • Punitive Detention
      • Preventive Detention
  • Punitive detention is to punish a person for an offence committed by him after trial and conviction in a court.
  • Preventive detention, on the other hand, means detention of a person without trial and conviction by a court.
  • Article 22 has two parts—the first part deals with the cases of ordinary law and the second part deals with the cases of preventive detention law.

Source: TH