Laws for Women in Custody in India

 There are three types of custodies,

1. Police Custody, 

2. Private Custody and 

3. Judicial Custody. 

Section 41 to 60 of the Criminal Procedure Code, 1973 dealt with these custody procedures

Legally custody is termed as ARREST, there is no particular definition, it is restraint of the liberty of a person it can be affected by actually contacting or touching the body of such person or by his submission to the custody of the person making the arrest. 

In the year 2005 Amendment enacted by Parliament in Criminal Procedure Code by implementing sub-section (4) to Section 46 that woman shall not be arrested after sunset and sunrise, and where such exceptional circumstances exist, the woman police officer by a written report obtain the permission of the Magistrate within the jurisdiction the offence committed or arrest to be made an arrest.

Ankita Harinath Mishra vs. The State of Maharashtra on 16 August 2019

The F.I.R. was registered against the applicant in this case under Section 302 and 201 of the Indian Penal Code for the murder of her husband Mr.Nityanand Sheetalprasad Pandey. Pursuant to missing complaint, the police officers came to the conclusion that the present applicant has committed the murder of the deceased and was shown as an accused merely on the basis of suspicion, lack of any legal and/or material evidence as against her.

In this case, it was considered that the illegally arrested by the officers in contravention to the provisions of law, the applicant was remanded to police custody for a period of 14 days after which she was remanded to judicial custody on 30.03.2019 and continuous to be lodged and detained in jail, the Court has repeatedly held that if initial action is not in consonance with law, all subsequent and consequential proceedings will fall through as illegality strikes at the root of the order passed by the Trial Court. Further, since the arrest itself is illegal in its inception being in utter violation of statutory, it cannot be legalized at a later stage by the remand Court. Therefore, the applicant has not preferred an application for bail since the arrest itself is illegal which was effected on the basis of the impugned order and is therefore approaching this Hon'ble Supreme Court declared the consequent arrest as illegal.

Women are safeguarded by the exceptional provision in the law, as per Section 46 (4) of Criminal Procedure Code, 1973, consequently, woman police constable can arrest any woman, and male constables cannot arrest any woman. Any woman can deny such arrest by a male constable and also before sunrise considered to be 6 am and after sunset at 6 pm. If any heinous crime registered against a woman, by a written receipt of an order from Magistrate by showing the legal and material aspect of crime can be taken to the custody.

Written by: Adv. Neethu Narayanan