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Nawal Thakur and anr. Vs. State of Himachal Pradesh and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtHimachal Pradesh High Court
Decided On
Judge
Reported in1985CriLJ1729
AppellantNawal Thakur and anr.
RespondentState of Himachal Pradesh and anr.
Cases Referred and Sheela Barse v. State of Maharashtra.
Excerpt:
- .....appear to have been strictly followed or taken. the affidavits disclose that in the absence of a lady police constable, the personal search of the second petitioner had to be carried out with the assistance of a person who is not a member of the police force. besides, the second petitioner was arrested by a male head constable and confined in the police lock up at manali between the night of aug. 12 and 13, 1984, although no lady police constable, was on duty and no separate female police lock up appears to have been set up at the said police station. all throughout, till her production before the additional chief judicial magistrate at kullu, nearly 24 hours later, she was in the custody of male police officers. it is not shown that special reports regarding her arrest were sent to.....
Judgment:

P.D. Desai, C.J.

1. A petition dated Aug. 16. 1984 sent by the first petitioner through the authorities of the Sub-Jail, Kullu, and two letters, each dated Aug. 16, 1984, addressed by the second petitioner, a foreigner, who was at the material time lodged in the Sub-Jail, Kullu, to one of us (Chief Justice), were registered as writ petitions.

2. The substance of the complaint in these various petitions is that on Aug. 12, 1984, at about 8 A.M. the second petitioner was accosted in the Bazar at Manali, District Kullu, by three persons, one of whom was in police uniform and the other two were in plain clothes, that she was caught by the arm and forcibly taken to the Shiva Temple for the verification of her passport, that she was then taken to the Police Station, Manali, where she was confined for the night, although no lady-constable was on duty, that she was produced in the Court of the Additional Chief Judicial Magistrate, Lahaul and Spiti District at Kullu, on the next day, i.e., Aug. 13, 1984 at 3 P.M. and that since then she has been confined in the Sub-Jail, Kullu. The second petitioner complains that she is a young lady aged about 30, that she was insulted by the police and that her 'chastity was lowered'. According to the petitioners, the confinement of the second petitioner in the Police Station, Manali and subsequently in the Sub-Jail, Kullu, is illegal and prayer is for the immediate release of the said petitioner.

3. The petition was listed for orders on Aug. 28, 1984. Notice to the respondents was ordered to be issued on that day returnable on Aug. 31, 1984 with a direction to file affidavit-in-reply and to produce the relevant case papers, if any, leading to the confinement of the petitioner, on the returnable date.

4. XXX XXX

5. Having perused the memos of petition and the affidavits, we issued a direction on Aug. 31, 1984 that the second petitioner be released on bail on her executing a personal bond in the sum of Rs. 500/- and on her agreeing not to leave the local limits of Manali town save and except with the prior permission of the Additional Chief Judicial Magistrate/ Magistrate and to report at the Manali Police Station once every day as directed by. the Police Station Officer till the proceedings in the Court against her terminate and also to appear in the Court, as and when required, in connection with the pending case. Further directions were issued to the Police Officer, who arrested the second petitioner, and the Station House Officer, In charge of the Police Station, Manali, where the petitioner was confined on the night of Aug. 12, 1984, to file affidavits meeting with the allegation with regard to the violation of the person or privacy of the second petitioner. The affidavits were ordered to be filed on or before Sept. 6, 1984, i.e. to-day.

6. X X X X X X

7. On the basis of the affidavits filed by the A. Section 1. and the Head Constable, we are satisfied that the grievance of the second petitioner that her person or privacy was violated or that she was ill-treated by the police officers does not appear to be justified. Her personal search is shown to have been taken by Rirki Devi, who is a lady member of the local Panchayat, and she appears to have been taken to the Police Station and placed in the police lock up in the presence of Rirki Devi. Be it noted in this connection that the second petitioner is not shown to have made any such complaint to the Additional Chief Judicial Magistrate before whom she was produced on the very next day. The learned Advocate General stated to the Court that he had received a Telephonic message from the Superintendent of Police, Kullu, informing him that the second petitioner has since been released and that she is no longer lodged in the Sub-Jail, Kullu. For the foregoing reasons, so far as the present case is concerned, no other or further directions are required to be issued in that regard.

8. The facts which have come to light in the present case, however, show that the Administration has failed to make adequate arrangements at a place like Manali, where a large number of foreigners, including women, are stated to be found living without passports and without valid visas, to tackle problems arising out of such a situation. Besides, the requisite procedure required to be followed and steps required to be taken, do not appear to have been strictly followed or taken. The affidavits disclose that in the absence of a lady police constable, the personal search of the second petitioner had to be carried out with the assistance of a person who is not a member of the police force. Besides, the second petitioner was arrested by a male Head Constable and confined in the police lock up at Manali between the night of Aug. 12 and 13, 1984, although no lady police constable, was on duty and no separate female police lock up appears to have been set up at the said police station. All throughout, till her production before the Additional Chief Judicial Magistrate at Kullu, nearly 24 hours later, she was in the custody of male police officers. It is not shown that special reports regarding her arrest were sent to higher authorities and that any steps to release her on bail, if admissible, were taken. The situation is not only undesirable but also against the extant statutory and executive directions.

9. The legislative policy as reflected in the various provisions of the Cr.P.C. 1973, clearly manifests that a woman is entitled to special treatment in matters of search, medical examination, attendance at the police stations for the purposes of investigation and bail (see : proviso to Sub-section (2) of Section 47, Sub-section (2) of Section 51, Sub-section (2) of Section 53, proviso to Sub-section (1)of Section 160 and proviso to Sub-section (1)of Section 437). The Punjab Police Rules, 1934, Volume-Ill, Chapter XXVI, make special provisions relating to the arrest of women. According to para 26.18-A : (i) such arrest has to be carried out by police officers not below the rank of Assistant Sub-Inspector of Police or, when no such officer is available, by a Head Constable in presence of responsible male relatives and village or town officials, (ii) such arrest has to be specially reported in the manner prescribed by Rule 24.12 and 24.15 to an appropriate authority, (iii) when such arrest has been made by an officer of rank lower than Assistant Sub-Inspector, the reason must be clearly explained, (iv) where bail is admissible, the woman must not be detained longer than is necessary for the production of the bond or sureties, (v) no applications for remand to police custody will be made without the special order of a gazetted officer, (vi) no N woman in police custody shall be lodged even for a night in a police station except in unavoidable circumstances and she is to be placed at once before a Magistrate for remand to judicial custody except where a remand to police custody is necessary and has been obtained in accordance with the direction above mentioned, (vii) a woman remanded to judicial custody must be immediately transferred to headquarters or properly equipped sub-divisional female judicial lock-ups, (viii) all remands of women must be reported immediately to the District Magistrate, (ix) the gazetted officer supporting an application for remand to the police custody is responsible for the taking of necessary measures for the decent custody of the prisoners, (x) the women in police custody must be escorted about for the purpose of investigation by an officer not below the rank of Assistant Sub-Inspector or in default by a Head Constable, (xi) women attending police investigations and enquiries as distinct from those under arrest are not to be detained in police stations or with the police any longer than is necessary and in no case they are to remain with the police between sun-set and sun-rise, and (xii) if it is necessary to take a woman witness about the countryside for identification etc., she is required to be accompanied by a responsible male relative or her zaildar, sufedposh, lambardar, mohalladar or other respectable male neighbour.

10. These various statutory provisions and executive instructions reflect the policy of law that a woman, whether in custody or a witness during the course of police investigation, is by virtue of her sex to be guaranteed dignity and privacy. The public policy as reflected in these directions, although not complimentary to the police personnel, is based on experience which appears to have justified the presumption that the females must, as far as possible, be kept away from exclusive male police company and that, so far as practicable, they should be escorted by police officers of appropriate rank and that at various stages the police officers of higher rank must be kept specially informed and their directions should be sought in regard to certain matters concerning a female accused. No woman in police custody is to be lodged even for a night in a police station except under unavoidable circumstances. Women remanded to judicial custody are required to be immediately transferred to headquarters or properly equipped sub-divisional female judicial lock-ups.

11. In the instant case, as earlier pointed out, quite a few of these mandates have been observed in breach. The fault for non-observance of some of the directions cannot, however, be laid at the doors of the local police administration. In a place like Manali, where a large number of foreigners, including women, are stated to be found living without passports and without valid visas and where investigation, search, arrest and confinement in police lockup of persons who are suspected to have committed such offences might become unavoidable, having regard to the distance between Manali and Kullu, it is essential to set up a properly equipped machinery to deal with the situation. Adequate number of lady police constables, one at least of whom is invariably available for all the time and as and when required, are required to be posted at the Police Station, Manali and at the other police stations in the surrounding areas. Instructions are required to be issued that if the person suspected of having committed an offence is a female, one or more lady police constables, as the case may be, should be invariably associated at all stages of the investigation and that the search and arrest, if any, should be made only by the lady police constable(s). Bail, if admissible, should be granted to such a female without undue delay and detention should not be longer than is absolutely necessary for the production of the bonds or sureties. No woman in police custody should be lodged even for a night in the police station except under compelling circumstances to be immediately reported to the Superintendent of Police. An endeavour should be made to produce her before the Additional Chief Judicial Magistrate/Magistrate at Kullu with the utmost expedition so that the consideration of the question of remand to judicial custody is rendered possible and the requirement of lodging her at the police station is avoided. Under no circumstances a female accused should be lodged in the lock up at the police station unless special arrangement with due regard to her decency and privacy is made and a lady police constable is posted as a guard. The State Government will take appropriate decision and follow-up action in this regard within a period of four weeks from to-day. Steps in the direction of posting additional female police staff and providing special facility for confinement of females in the lock-up at the Police Station at Manali with due regard to their decency and privacy will be attended to with the utmost expedition. On or before Oct. 18,1984, the Secretary to the State Government, Home Department, and the Inspector General of Police, will both place on the record of this case through affidavits the action taken pursuant to these directions.

12. The Court cannot, however, stop short of issuing these directives. It is essential to know as to whether satisfactory arrangements have been made in the other districts of the State to deal with similar situation. Under the circumstances, it is directed that the above-mentioned officers or any one of them will furnish in the affidavit the following information:

1. How many posts of lady constable/police officers are sanctioned for the police force in the State?

2. How many of such 'posts are filled in at present?

3. Whether at each police station adequate number of lady police constables/ police officers are posted? If not, why? What steps are proposed to be taken in the said direction?

4. How many properly equipped female judicial lock-ups are provided in the State? At how many police stations suitable and adequate arrangement for confinement of females in police custody, under unavoidable circumstances, exist?

13. The Court also considers it essential to draw the attention of the State Government to the proviso to Sub-section (1) of Section 160 of the Cr. P. C., 1973 which, inter alia, provides that no woman shall be required to attend before any police officer making an investigation under Chapter-XII at any place other than the place in which such woman resides. The Court finds that the provisions contained in sub-para (3) of para 26.18-A of the Punjab Police Rules, 1934, Volume-III, are not in accord with the statutory provisions contained in the proviso to Sub-section (1) of Section 160 of the Cr. P. C., 1973. The State Government is, therefore, directed to introduce appropriate amendments in the relevant provisions of para 26,18-A within a period of four weeks from today and to report compliance to the Court.

14. In connection with the directions hereinabove issued, the Court draws the attention of the State Government to the observations made in Nandini Satpathy v. P. L. Dani : 1978CriLJ968 and Sheela Barse v. State of Maharashtra. : 1983CriLJ642 .

15. The case be listed for further orders on Oct. 22, 1984.

16. A Dasti copy of this order to be supplied to the learned Advocate General.

17. In view of the affidavits in reply filed pursuant to the order dated September 6, 1984, no other or further direction is required to be issued at the present stage. The petition accordingly stands disposed of.


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