Document Fragment View

Matching Fragments

(6) No female shall be searched by any one excepting a female.

The obvious intention behind this provision is to protect the modesty of a woman and to prevent a possible invasion of the same by an unscrupulous investigating agency. In this context reference will also have to be made to the relevant provisions of the Code of Criminal Procedure, 1973. Sub-section (3) of Section 100 reads thus:

Where any person in or about such place is reasonably suspected of concealing about his person any article for which search should be made, such person may be searched and if such person is a woman, the search shall be made by another woman with strict regard to decency.
Requirement of having witnesses or panchas is to secure that the search is carried out after following the proper procedure and that it is authentic. A search of a woman also would have to be conducted in the presence of panchas to lend credibility to it.

15. Now if a woman accused has to be searched, merely calling a female officer to search her will not fulfill the legislative intent. The legislative Intent appears to be to protect the lady accused's modesty while conducting her search. The search has to be conducted by having strict regard for decency. Therefore, the officers will necessarily have to secure the presence of lady panchas. If the search is carried out in the presence of male panchas, the very purpose of Sub-section (4) of Section 50 of the N.D.P.S. Act and such similar provisions contained in other statutes would be frustrated. What is sought to be achieved by Sub-section (4) of Section 50 of the N.D.P.S. Act, the relevant provisions of Criminal Procedure Code quoted herein above and similar provisions of the Customs Act and the F.E.R.A. would be lost if the investigating agency does not carry out the search by a female in the presence of female panchas.

17. Our attention has also been drawn by Mr. Borulkar to yet another judgment of the Bombay High Court reported in 1994-1-FAC-285 (Bombay) where the Bombay High Court was dealing with a case where personal search of a lady accused was conducted by the lady constable in the presence of lady panch at a crowded public road. It was held that such a search did not inspire confidence. It appears that the place where search was conducted was shabby. The Court observed that even if the lady panch had gone there, she would have kept a safe distance. In the circumstances, it was further observed that the correct procedure would have been for the raiding party to take the lady accused to some decent place and secluded area where the personal search could have been conducted in the presence of a lady panch in the circumstances that inspired confidence. The ratio of this decision is to secure that the lady accused are dealt with by the officers having strict regard to decency and in a manner which will not subject them to any humiliation and hardship.