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Report No. 135

2.2. Section 46, Cr. P.C., 1973: Arrest.-

Our law provides certain detailed rules as to the mode of arrest by the police or other persons acting in aid of law enforcement. Section 46 of the Code of Criminal Procedure, 1973 lays down that in arresting a person, the police officer or other person making the arrest shall actually touch or confine the body of the person to be arrested, unless there be submission to the custody by word or action. The rest of the section is not material for the present purpose.

Dealing with this section, the Law Commission, in its Report on Rape and Allied Offences,1 expressed the view that a provision should be added to the effect that in the case of women, their submission to custody shall be presumed unless proved otherwise, and that the police officer should not actually touch the person of the woman for making arrest. The recommendation of the Commission in this regard was to add the following proviso in section 46(1) of the Code:

"Provided that where a woman is to be arrested, then, 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 arresting is a female, the police officer shall not actually touch the person of the woman for making her arrest. We are of the view that the above recommendation should be implemented by enacting a suitable provision.

1. Law Commission of India, 84th Report (Rape and allied offences: some questions of substantive law, procedure and evidence), paras. 3.5 and 3.8 (April, 1980).

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