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DAILY NEWS ANALYSIS

  • 06 September, 2022

  • 9 Min Read

Bail for Women

Bail for Women

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”.

Image Source - India Today

The Code of Criminal Procedure's section on bail that states that "being a woman is a viable cause for granting bail, even where otherwise it cannot be considered," was also mentioned by the Chief Justice of India

Provisions available for Bail for Women

  • Section 437 of the Code of Criminal Procedure (CrPC) addresses bail in cases of offences that are not subject to bail.
  • It states that a person cannot be released on bail if:
  • There is probable cause to believe that they have committed a crime that carries a death or life sentence;
  • They have previously been convicted of a crime that carries a death or life sentence;
  • They have served at least seven years of a sentence of imprisonment, or they have been convicted twice or more of other crimes that carry sentences of three to seven years.
  • However, Section 437 of the CrPC also has exceptions, such as the fact that the court may still issue bail in certain circumstances if the defendant is a minor, a woman, or is ill or infirm.

Additional provisions

  • Anyone whom a police officer considers to be familiar with a case under investigation must appear when the officer requests their attendance (Section 160).
  • However, no woman shall be obliged to do so anywhere other than her residence.
  • The Law Commission argued that the word "place" is confusing and that it would be preferable to change it to "dwelling place" in its 84th and 135th Reports from 1980 and 1989, respectively.

CrPC on the Arrest of a Woman

  • An individual who has committed a cognizable offence may be arrested by police without a court order or a warrant (Section 41).
  • The police officer is allowed to physically restrain the suspect to complete the arrest under Section 46 if the subject refuses to submit to custody notwithstanding the police's commands or actions.
  • A clause was inserted into the CrPC in 2009 stating that, unless other circumstances demand it, only a female police officer may touch a woman who is being arrested.
  • A subsection was introduced to Section 46 in 2005 through an amendment, making it illegal to arrest a woman after dusk or before dawn.
  • In unusual cases, a female police officer may get a judicial magistrate's prior approval before making the arrest.
  • When a person is supposed to be arrested but doesn't show up, the police may try to enter any location where they believe the person is.
  • If any such location is a women's apartment occupied by a female (who is not the person being arrested), and if the lady is one who avoids the public eye, the police must notify her beforehand so that she can leave before they enter (Provision to Section 47).
  • It also states that before they smash down the door and enter, they must give her every reasonable opportunity to leave.
  • Another exemption is that a woman who wants to file a defamation lawsuit but does not typically appear in public can ask someone else to do it for her.

Constitutional Provisions in India against Arrest?

Article 22

  • It concerns the protection from arrest and detention in specific circumstances.
  • Both citizens and non-citizens may use this article.
  • In the event of an arrest, this article offers important procedural protections for people.
  • This right is intended to stop arbitrary detention and arrest.

The following precautions are provided in the article:

  • Article 22(1) – Any person who is in custody has to be informed as to why he has been arrested. Further, he cannot be denied the right to consult an advocate.
  • Article 22(2) – The arrested individual should be produced before a judicial magistrate within 24 hours of his arrest.
  • Article 22(3) – Nothing in clauses ( 1 ) and ( 2 ) shall apply (a) to any person who for the time being is an enemy alien; or (b) to any person who is arrested or detained under any law providing for preventive detention
  • However, these protections do not apply to anybody detained under the statute governing preventive detention or enemy aliens.

About Bail:

  • Bail is the conditional or provisional release of a person held in custody (in cases where the Court has not yet rendered a decision), in exchange for a commitment to appear in court as needed. It represents a security or collateral that has been deposited with the court for release.

Indian bail types include:

  • Regular Bail: This is an order from a court (any court in the nation) ordering the release of someone who has already been arrested and is being held by the police.
  • A person may submit an application for such Bail under Sections 437 and 439 of the CrPC.
  • Interim bail is a temporary release from custody until the court hears an application for an anticipatory bail or regular release from custody.
  • A directive to release a person on bail even before they are arrested is known as anticipatory bail.
  • In this case, there is a fear of arrest but no arrest occurs before the bail is approved.
  • A person may submit an application for such Bail under Section 438 of the Code of Criminal Procedure (CrPC).
  • Only the Sessions Court and High Court may issue it.

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