The Supreme Court of India recently granted interim bail to activist Teesta Setalvad, citing unique circumstances that include the accused being a female. The Chief Justice of India referenced the bail provision in the Indian Code of Criminal Procedure (CrPC), which states “being a woman is a possible ground for granting bail, even when otherwise it cannot be considered.”
Provisions in CrPC for Bail for Women
Section 437 of the CrPC deals with bail in cases of non-bailable offenses. It states that a person shall not be released on bail if there are reasonable grounds to believe they have committed an offense punishable by death or life imprisonment, if they have been formerly convicted for a similar crime, or if they have been convicted two or more times for other offenses. However, the section also contains exceptions allowing courts to grant bail in these cases if the person is under the age of 16, is a woman, or is sick or infirm.
When a police officer requires the attendance of a person familiar with a case under investigation, the person must appear before the officer (Section 160). However, a woman is not required to appear anywhere other than her residency. The Law Commission suggested in its 84th and 135th Report that ‘place’ is ambiguous and should be amended to ‘dwelling place’.
The CrPC’s Stance on Arresting Women
A police officer can arrest a person who has committed a cognizable offense without a judicial order or warrant (Section 41). The officer can physically confine the person to effect the arrest (Section 46) but only a female police officer may touch the woman unless circumstances require otherwise. Section 46 also prohibits the arrest of a woman after sunset or before sunrise.
Non-Appearance Cases
If the police suspect that a person who needs to be arrested is present in any premises, they may seek entry. However, if the place is an apartment occupied by a female, who is not the person to be arrested, the police have to give notice to her so that she may withdraw before they enter (Provision to Section 47).
Provisions in India’s Constitution Against Arrest
Article 22 of the Indian Constitution protects persons who are arrested or detained. The law offers two types of detention: Punitive Detention and Preventive Detention. The former seeks to punish a person for an offense after trial and conviction, while the latter permits detention of a person without trial and conviction.
Understanding Bail and Its Types
Bail refers to the conditional release of a person held under legal custody, pending court judgment. It requires the person to promise appearance in court when needed and to deposit security/collateral with the court.
There are three types of bail in India. Regular Bail is ordered by any court within the country for a person already under arrest and kept in police custody. Interim Bail is granted temporarily until an application seeking Anticipatory Bail or Regular Bail is pending. Anticipatory Bail is issued to release a person on bail even before the person is arrested. Applications for such bails are filed under Section 437, 439 and 438 respectively of the CrPC.
