Absence Of Female Police Officer During Arrest/Raid Does Not Vitiate Conviction Under Section 373 IPC: Bombay High Court

"The Hon'ble Supreme Court has therefore directed that while arresting a female person, ‘all efforts should be made’ to keep a lady constable present but in the circumstances where arresting officers are reasonably satisfied, that such presence of a lady constable is not available... [they] be permitted to arrest a female person for lawful reasons at any time of the day or night" Bombay High Court, in a  significant judgment, held that the absence of a female police officer during a raid or arrest does not automatically vitiate a conviction, provided the arrest was lawful and circumstances necessitated immediate action.

The bench of Justice M.M. Sathaye observed that judicial guidelines regarding the presence of female officers are directory rather than mandatory, emphasizing that "strict compliance with the said direction, in a given circumstance, would cause practical difficulties to investigating agency."

The applicants were convicted by the trial court for an offence under Section 373 of the IPC for obtaining possession of minor girls for the purpose of prostitution, following a 2003 police raid at a building in Budhwar Peth, Pune. While the applicants were acquitted of charges under the Immoral Traffic (Prevention) Act, 1956, their conviction and three-year sentence under Section 373 IPC were upheld by the Additional Sessions Judge. The accused approached the High Court in revision, challenging the concurrent findings of the lower courts.

The primary question before the court was whether the absence of a female police officer during the raid and the failure to photograph the scene rendered the prosecution’s case fatal. The court was also tasked with determining the evidentiary value of an ossification test conducted by a medical expert who is not a specialist radiologist. Finally, the court examined the limits of its own revisional jurisdiction in the face of concurrent findings of fact by the courts below.

Scope of Revisional Jurisdiction

The Court reiterated that its revisional jurisdiction is strictly limited and does not permit the re-appreciation of evidence to arrive at a contrary conclusion. The bench noted that where there are concurrent findings of fact by the trial and appellate courts, interference is only warranted in instances of manifest perversity or illegality.

Medical Evidence and Ossification Tests

Regarding the age determination of the victims, the court clarified that the opinion of a Medico-Legal Expert, even if not a radiologist, is admissible and reliable when based on a combined clinical and radiological examination. Citing the Supreme Court’s decision in Vinod Katara v. State of Uttar Pradesh, the court noted that while ossification tests are not solely conclusive, they remain a vital indicator of biological maturity when supported by clinical findings.

Presence of Female Police Officers

The court addressed the contention regarding the absence of female police officers during the 2003 raid. It observed that the proviso to Section 46 of the CrPC, which mandates the presence of a female officer, was introduced only in 2009 and was not applicable at the time of the incident. Furthermore, the court held that judicial guidelines on this matter are directory and intended to balance the protection of the accused with the practical exigencies of law enforcement.

"The Hon'ble Supreme Court's observation are only directory and not mandatory, in as much as, the Hon’ble Supreme Court has stated that ‘all efforts should be made’."

Evidence of Victims and Police Officials

The court observed that in cases involving the raiding of brothels, the testimony of police officials who conducted the raid and the victims themselves serves as primary evidence. Even where independent panch witnesses turn hostile, the testimony of police personnel who consistently describe the search and the recovery of victims can be sufficient to establish guilt. The bench underscored that minor discrepancies regarding the presence of specific personnel do not amount to material contradictions fatal to the prosecution's case.

Finding no perversity in the appreciation of evidence by the lower courts, the High Court dismissed the revision application. The court upheld the conviction under Section 373 IPC, noting that the three-year sentence was already a lenient view taken by the trial court, given that the statute provides for a maximum imprisonment of ten years. The applicants were directed to surrender within four weeks.

Date of Decision: 29 August 2026