Criminal Procedure: Code of Criminal Procedure, 1973 / Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS)
Rights of a Female Accused under the BNSS 2023
Rights of a Female Accused under the BNSS, 2023: Arrest of Women, the Sunset to Sunrise Rule, Search, Medical Examination and Custody
A woman in the criminal process is exposed to two risks that the process itself must guard against. The first is that the machinery will be used to humiliate her, by a search, an examination or a public arrest conducted in a manner that a man would not face. The second is the risk of sexual violence in custody. The provisions examined in this topic are not concessions or courtesies. They are the adjustments a procedure has to make if it is to be, for a woman, the same reasonable, fair and just procedure that Article 21 requires for everyone.
The provisions are scattered. There is no chapter on the subject and no single section collecting them. They appear as provisos to sections on arrest, search, medical examination and the attendance of witnesses, and they operate at different stages. This topic gathers them and, where the position was worked out judicially before it was codified, identifies the decisions on which the statutory rule rests.
Figure 1: What changes at each stage of the arrest of a woman
1. Before the Arrest
1.1 The notice of appearance
The first protection is not gender-specific but matters disproportionately. Section 35(3) requires a police officer, in all cases where the arrest of a person is not required under section 35(1), to issue a notice of appearance rather than arresting, and the proviso requires him to record the reasons in writing for not making the arrest. The great majority of offences in which women are accused fall within the band of punishment up to seven years to which that requirement applies, so for a woman the question in most cases is not how she is to be arrested but whether she should be arrested at all.
The notice must be served physically. The Supreme Court held in July 2025 that service through WhatsApp or other electronic communication is not a valid substitute for the modes the Sanhita prescribes, because non-compliance with the notice can lead to arrest and the mode of service therefore bears directly on liberty.
1.2 The sunset to sunrise rule
Section 43(5), BNSS 2023 Save in exceptional circumstances, no woman shall be arrested after sunset and before sunrise, and where such exceptional circumstances exist, the woman police officer shall, by making a written report, obtain the prior permission of the Judicial Magistrate of the first class within whose local jurisdiction the offence is committed or the arrest is to be made. |
Three requirements are stacked, and all three must be satisfied.
- The circumstances must be exceptional. The rule is that a woman is not arrested at night; the exception must be justified by something out of the ordinary, and the ordinary convenience of the investigating agency is not that.
- The arrest must be made by a woman police officer. The sub-section places the obligation to obtain permission on “the woman police officer”, which presupposes that it is she who makes the arrest.
- The prior permission of a Judicial Magistrate of the first class must be obtained, by written report. The permission must be prior, and it must be of a Magistrate within whose local jurisdiction the offence was committed or the arrest is to be made.
The provision is therefore not a prohibition on arresting a woman at night but a requirement of prior judicial authorisation for it. That is unusual in a chapter otherwise concerned with police discretion, and it makes section 43(5) the only provision in Chapter V that interposes a Magistrate between the decision to arrest and the arrest itself.
📖 Sheela Barse v. State of Maharashtra, (1983) 2 SCC 96 Facts: A journalist wrote to the Supreme Court alleging that women prisoners in the Bombay lock-ups had been assaulted in police custody. The Court treated the letter as a writ petition and directed an inquiry, which found that women were being held in lock-ups without separate arrangements and were being interrogated by male officers without any female presence. Held: The Court held that a woman in custody is entitled to protection against the particular risks her position creates, and issued directions. Women suspects should be kept in separate lock-ups guarded by women constables, and not in the same lock-up as male suspects. Interrogation of a woman should be carried out only in the presence of a female police officer. Every woman arrested must be informed of her right to legal assistance, and the police must intimate the nearest Legal Aid Committee of the arrest so that assistance can be provided. The Magistrate before whom she is produced must inquire whether she has any complaint of ill-treatment in custody, and should do so out of the hearing of the escorting police. The Court also directed that a notice board setting out the rights of an arrested person be displayed in every lock-up. Ratio: A woman in custody is entitled to arrangements that recognise the particular risk of custodial violence she faces, and to a judicial inquiry into her treatment that is made without the police present. |
Two of those directions have been absorbed into the Sanhita. The requirement that the Magistrate inquire into compliance appears in section 48(4), which requires him to satisfy himself that the arrested person’s rights have been complied with. The requirement of legal assistance appears in section 341. The requirements of separate lock-ups guarded by women constables and of a female officer’s presence during interrogation remain judicial directions and prison rules rather than provisions of the Sanhita, and they continue to bind.
2. At the Arrest
The proviso to section 43(1), BNSS 2023 Provided that where a woman is to be arrested, unless the circumstances indicate to the contrary, her submission to custody on an oral intimation of arrest shall be presumed and, unless the circumstances otherwise require or unless the police officer is a female, the police officer shall not touch the person of the woman for making her arrest. |
The proviso does two things, and the first is easily missed. Section 43(1) provides that an arrest is made by actually touching or confining the body unless there is submission to custody. For a woman the proviso presumes that submission, so that an oral intimation of arrest completes the arrest without any physical contact. The consequence is legal as well as protective: the arrest is complete at the moment of the intimation, and the twenty-four hours under section 58 begin to run from then.
The second is the prohibition on touching. It is qualified twice, by “unless the circumstances otherwise require” and “unless the police officer is a female”. A male officer may therefore touch the person of a woman for making an arrest only where the circumstances require it, which in practice means where she resists or attempts to escape and no female officer is present.
The ordinary duties under sections 36 and 47 apply without modification: the officer must bear visible identification, prepare a memorandum of arrest attested by a family member or respectable person of the locality and countersigned by her, communicate the full particulars of the offence forthwith, tell her of the right to bail in a bailable offence, and inform her of the right to have a relative, friend or any person named by her told of the arrest.
3. After the Arrest: Search, Examination and Custody
Provision | Requirement |
|---|---|
Section 49(2) | Whenever it is necessary to cause a female to be searched, the search shall be made by another female with strict regard to decency |
Section 51(2) | Whenever the person of a female is to be examined under section 51, the examination shall be made only by or under the supervision of a female registered medical practitioner |
Section 53, proviso | Where the arrested person is a female, the examination of the body under section 53 shall be made only by or under the supervision of a female medical officer, and in case she is not available, by a female registered medical practitioner |
Section 56 | It shall be the duty of the person having the custody of an accused to take reasonable care of the health and safety of the accused |
Section 43(3) | Handcuffs may be used only in the listed categories and keeping in view the nature and gravity of the offence; nothing in the sub-section makes it easier to handcuff a woman, and section 46 continues to forbid restraint beyond what is necessary |
Section 480, proviso | The restriction on the grant of bail in a non-bailable offence punishable with death or imprisonment for life may be relaxed where the person is a woman, in addition to a child or a sick or infirm person |
Section 479 | The provision for the release of an undertrial who has served one half, or one third for a first-time offender, of the maximum period applies without distinction, subject to its exclusions |
The proviso to section 480 deserves particular notice. The general rule is that bail shall not ordinarily be granted in a non-bailable offence where there appear reasonable grounds for believing the person guilty of an offence punishable with death or imprisonment for life. The proviso permits the court to direct release if such person is a child, a woman or is sick or infirm. It is not a right to bail; it is a statutory relaxation of a statutory restriction, and the discretion remains judicial. But it is the only provision in the bail chapter that names a woman as such, and it is the provision on which an application in a grave offence will usually rest.
📖 R.D. Upadhyay v. State of Andhra Pradesh, (2007) 15 SCC 337 Facts: A petition concerning the condition of children living in prison with their mothers led the Supreme Court to examine the arrangements for women prisoners and for the children in their care, and to consider what minimum standards the State is obliged to maintain. Held: The Court issued comprehensive directions. A child born in prison is not to have the prison recorded as the place of birth; a female prisoner is to be taken to a hospital outside the prison for delivery wherever possible. Children up to the age of six may remain with their mother in prison, and are entitled to food, shelter, medical care, clothing, education and recreational facilities as a matter of right and not as charity, at the cost of the State. Separate arrangements are to be made for the accommodation of women prisoners, and a creche and a nursery are to be provided. The Court directed States to frame rules accordingly and to file compliance reports. Ratio: The conditions of custody are part of the constitutional obligation of the State under Article 21, and the position of a woman in custody carries obligations that extend to those dependent on her. |
⚠ What the Sanhita does not provide, and where the law is found The Sanhita says nothing about separate lock-ups for women, about the presence of a woman officer during interrogation, about accommodation with dependent children, or about the treatment of a pregnant woman in custody. Those matters continue to be governed by the directions in Sheela Barse and R.D. Upadhyay, by the Prisons Act and the State prison manuals, and by the Model Prison Manual. The absence of a statutory provision does not mean the absence of an obligation: the directions were issued under Articles 32 and 142 and bind until the legislature provides otherwise. For a practitioner the point is that an objection about the conditions in which a woman is being held does not depend on finding a section of the Sanhita. It rests on Article 21, on section 56, and on the directions themselves. |
4. As a Witness, and as a Victim
Figure 2: Provisions for women across the Sanhita
The Sanhita treats a woman differently in three capacities, and the provisions should be kept distinct. As an accused, the protections are those examined above. As a witness, the principal provision is the proviso to section 179. As a victim, a separate group of provisions applies.
Capacity | Provision | Protection |
|---|---|---|
Witness | Section 179, proviso | No male person under the age of fifteen years or above the age of sixty years, or a woman, or a mentally or physically disabled person, or a person with acute illness shall be required to attend at any place other than the place in which he or she resides. The police must go to her |
Victim | Section 173(1) | Information relating to a cognizable offence may be given at any police station, irrespective of the area where the offence was committed, and by electronic communication |
Victim | Section 176(1), proviso | In offences under the specified sections relating to sexual offences, the statement of the victim is recorded by a woman police officer or a woman officer; where the victim is temporarily or permanently mentally or physically disabled, the statement is recorded at her residence or a place of her choice, in the presence of an interpreter or special educator, and is videographed |
Victim | Section 183(6) | The statement of the victim of specified offences is recorded by a Judicial Magistrate, as soon as the commission of the offence is brought to the notice of the police, and may be recorded by audio-video electronic means |
Victim | Section 184 | Medical examination with her consent, within twenty-four hours of receiving the information, and the report forwarded to the investigating officer within seven days |
Victim | Section 193(2) | The investigation of the specified sexual offences must be completed within two months of the recording of the information |
Victim | Section 366 | The court may direct that the trial be conducted in camera in the specified offences, and the printing or publication of any matter in relation to such proceedings is restricted |
Victim | Sections 396 and 397 | The victim compensation scheme, and free first aid or medical treatment at all hospitals |
Both | Section 21, proviso | The specified sexual offences shall be tried as far as practicable by a court presided over by a woman |
5. What the Sanhita Changed, and What It Did Not
Subject | Under the CrPC, 1973 | Under the BNSS, 2023 |
|---|---|---|
No touching, submission presumed | Section 46(1), proviso, inserted in 2005 | Section 43(1), proviso: unchanged |
Arrest of a woman at night | Section 46(4), inserted in 2005 | Section 43(5): unchanged, including the requirement of prior permission of a Judicial Magistrate of the first class |
Search of a woman | Section 51(2) | Section 49(2): unchanged |
Medical examination by a female practitioner | Sections 53(2) and 54(1), proviso | Sections 51(2) and 53, proviso: unchanged |
Attendance of a woman witness | Section 160(1), proviso | Section 179, proviso, extended to include a person with acute illness |
Statement of a victim of a sexual offence | Section 157(1), proviso and section 164(5A) | Section 176(1), proviso and section 183(6), with the addition of videography where the victim is disabled |
Medical examination of a victim | Section 164A | Section 184, with the report to be forwarded within seven days |
Completion of investigation in sexual offences | Section 173(1A), two months | Section 193(2), two months, extended to the specified POCSO offences |
Trial by a woman judge | Section 26, proviso | Section 21, proviso: unchanged |
Relaxation of the bail restriction | Section 437(1), proviso | Section 480(1), proviso: unchanged |
Separate lock-ups, woman officer at interrogation | Not in the CrPC; judicial directions and prison rules | Still not in the Sanhita; the directions continue to govern |
The pattern is that the Sanhita has carried forward the protections the Code of Criminal Procedure had accumulated by amendment between 2005 and 2013, and has added to them only at the margins, chiefly by requiring videography where the person concerned is disabled and by extending the attendance protection to a person with acute illness. The substantial additions in this area were made to the CrPC in the decade before the Sanhita, and the Sanhita consolidates rather than extends them.
6. Key Takeaways
The position stated shortly 1. Section 43(5): save in exceptional circumstances, no woman shall be arrested after sunset and before sunrise; and then only by a woman police officer who has obtained the prior permission of a Judicial Magistrate of the first class by written report. 2. The provision is not a prohibition but a requirement of prior judicial authorisation, and it is the only place in Chapter V where a Magistrate stands between the decision to arrest and the arrest. 3. The proviso to section 43(1) presumes a woman’s submission to custody on an oral intimation of arrest, so the arrest is complete without physical contact and the twenty-four hours begin to run from the intimation. 4. The same proviso forbids a police officer to touch the person of a woman for making her arrest, unless the circumstances otherwise require or the officer is a female. 5. Section 49(2): a woman is searched only by another woman with strict regard to decency. Sections 51(2) and 53 proviso: medical examination only by or under the supervision of a female practitioner. 6. The proviso to section 480(1) permits the court to relax the restriction on bail in a grave non-bailable offence where the person is a child, a woman, or sick or infirm. It is a relaxation, not a right. 7. The proviso to section 179 protects a woman as a witness: she shall not be required to attend at any place other than where she resides. 8. A woman in custody is entitled to separate lock-ups guarded by women constables, to interrogation in the presence of a female officer, to be informed of the right to legal assistance, and to a magisterial inquiry into any complaint of ill-treatment made out of the hearing of the police: Sheela Barse. 9. Children up to six may remain with their mother in custody and are entitled to food, shelter, medical care, education and recreation at the cost of the State: R.D. Upadhyay. 10. The Sanhita carries forward the protections the CrPC accumulated between 2005 and 2013 and adds chiefly the requirement of videography where the person is disabled. The custodial arrangements for women remain governed by judicial directions and prison rules rather than by the Sanhita. |
7. Frequently Asked Questions
Can a woman be arrested at night in India?
Only in exceptional circumstances. Under section 43(5) no woman shall be arrested after sunset and before sunrise save in such circumstances, and where they exist the woman police officer must obtain the prior permission of the Judicial Magistrate of the first class within whose local jurisdiction the offence was committed or the arrest is to be made, by making a written report.
Can a male police officer arrest a woman?
He may make the arrest, but under the proviso to section 43(1) he shall not touch her person for that purpose unless the circumstances otherwise require or the officer is a female. Her submission to custody on an oral intimation of arrest is presumed. For an arrest between sunset and sunrise, section 43(5) contemplates that the arrest is made by a woman police officer.
Who may search a woman who has been arrested?
Only another woman, and with strict regard to decency: section 49(2). The same principle applies to medical examination, which may be made only by or under the supervision of a female medical officer or registered medical practitioner: sections 51(2) and 53, proviso.
Must a woman witness attend the police station?
No. Under the proviso to section 179 a woman, like a male person under fifteen or above sixty, a mentally or physically disabled person and a person with acute illness, shall not be required to attend at any place other than the place in which she resides. The police must examine her there.
Is bail easier for a woman under the BNSS?
The proviso to section 480(1) permits the court to direct release on bail even where the offence is punishable with death or imprisonment for life and there appear reasonable grounds for believing the person guilty, if the person is a child, a woman, or sick or infirm. It is a relaxation of a restriction and not an entitlement; the discretion remains judicial.
Where are the rules on the custody of women prisoners found?
Not in the Sanhita. Section 56 imposes a general duty to take reasonable care of the health and safety of a person in custody, and the detailed requirements come from the directions in Sheela Barse and R.D. Upadhyay, from the Prisons Act and the State prison manuals, and from the Model Prison Manual.
Can a woman keep her child with her in custody?
Yes. Children up to the age of six may remain with their mother, and are entitled to food, shelter, medical care, clothing, education and recreational facilities as a matter of right at the cost of the State, with separate accommodation and a creche and nursery to be provided: R.D. Upadhyay v. State of Andhra Pradesh.
Related Topics
- Arrest of Persons under the BNSS, 2023: Sections 35 to 62
- Medical Examination under the BNSS, 2023: Sections 51, 52 and 53
- Identification of the Arrested Person and the Test Identification Parade
- Rights of an Arrested Person under the BNSS, 2023
- The Victim under the BNSS, 2023
- Bail and Bonds under the BNSS, 2023: Sections 478 to 496