Explained | On what ground was Teesta Setalvad granted interim bail?
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What are the provisions under the law that are ‘favourable’ to women accused? 

September 04, 2022 04:04 am | Updated 12:20 pm IST

Social activist Teesta Setalvad before being released from the Women Central Jail in Ahmedabad on September 3, 2022.

Social activist Teesta Setalvad before being released from the Women Central Jail in Ahmedabad on September 3, 2022. | Photo Credit: PTI

The story so far: “We hasten to add that the relief of interim bail is granted to the appellant in the peculiar facts including the fact that the appellant happens to be a lady,” said the Supreme Court Bench headed by Chief Justice of India, U.U. Lalit, in its order on activist Teesta Setalvad on September 2. During the hearing, too, Justice Lalit made an oral observation that under Section 437 of the Code of Criminal Procedure (CrPC), a woman is entitled to favourable treatment. He was referring to a provision that says being a woman is a possible ground for granting bail, even when otherwise it cannot be considered.

What does the bail provision say?

Section 437 of the CrPC deals with bail in case of non-bailable offences. It says a 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, if he has been previously been convicted for an offence punishable with death, life imprisonment, or for a term of seven years or more; or been convicted on two or more occasions on other offences with a term between three and seven years.

However, it also contains exceptions in a proviso that says 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”.

Are there other provisions favourable to women accused?

There are several provisions in criminal law that give special consideration to women, of any age, when they are victims of offences, including sexual offences, in the way they are treated as witnesses and victims of crimes. There are also some provisions relating to women when they are made an accused, and arrested.

For instance, 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. This is understood to mean that the officer has to visit the place of residence to make enquiries. This benefit is also available to boys under 15, men above 65 and any mentally or physically disabled person.

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In its 84th and 135th 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?

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. A proviso was introduced in the CrPC in 2009 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.

Earlier, through a 2005 amendment, a subsection was added to Section 46 to prohibit the arrest of a woman after sunset or before sunrise. However, in exceptional circumstances, a woman police officer can obtain the prior permission of a judicial magistrate to make the arrest.

What does it say on women who don’t appear in public?

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, by custom, does not appear in public, the police have to give notice to her so that she may withdraw before they enter it (Proviso to Section 47). It adds that they shall afford her every reasonable facility for withdrawing before they break open and enter the place.

In yet 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.

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