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by Monika Saroha*

Cite as : (2006) 2 SCC (Cri) J-9

The Code of Criminal Procedure (Amendment) Bill, 2005, to quote the Home Minister, would make the law more humane, more scientific and more effective.1 However, after the Act got the Presidential assent, the implementation of these amendments have been deferred indefinitely by the Government amidst nationwide protests by lawyers and objections by the Bar Council of India against some of the provisions, which according to them, adversely affects the interests of the accused.

The lawyers have protested against provisions like the ones that provide for prompt arrest of an accused after rejection of his anticipatory bail, confiscation of the property of an accused who has repeatedly evaded court process and the powers of a Magistrate to recommend to the prosecution to file an appeal in a criminal case even if the offence is not of a serious nature, even though in our country, jumping bails, evading trial by not appearing before the court and ineffectual prosecution is the norm!

Some of the better provisions of this newly legislated Act have also been sought to be highlighted here because there are no objections regarding these provisions.

For instance, the newly incorporated Section 51 provides that any person held in custody by the police, shall be entitled to have one person of his choice informed of his arrest and place of detention so that he can arrange for adequate assistance during investigation and trial. In this way the legislature has given effect to the guidelines issued by the Supreme Court in Joginder Kumar v. State of U.P.2 and in few of the recommendations made by the Law Commission in its 152nd report on Custodial Crimes3 and some of the suggestions made towards this end by the National Police Commission in its fourth report4 The National Police Commission had even observed in its third report that the power of arrest is one of the sources of police corruption5 One of the main reasons for abuse of this power is the manner in which the source of this power i.e. the Criminal Procedure Code is worded. Section 41(1) of this Code provides that a police officer may arrest a person ?(a) who has been concerned in any cognizable offence, or against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists, of his having been so concerned?. The first part of the section regarding being concerned in a cognizable offence, is totally objective, but in the remaining portions of Section 41(1), one finds a combination of objective facts coupled with a certain amount of subjective evaluation. The objective element is highlighted by its repeated use of adjectives, such as ?reasonable? or ?credible?. But it is not necessary to establish objectively that the person proposed to be arrested has been concerned in a cognizable offence. This leaves a lot of scope for misuse of power and this amendment was the right opportunity to make the law governing arrest more clear and explicit in order to do away with unjustified powers exercised by police officers to discreetly arrest innocent people to earn a few extra bucks or undeserving favors.

The changes introduced in the Code to safeguard the interests of women are laudable. Section 46 of the Code now provides that no woman can be arrested after sunset and before sunrise, except in exceptional circumstances where the woman police officer may do so after obtaining written permission of the Judicial Magistrate concerned. The success of this provision, however, depends on the checks put on the wide discretionary powers of arrest vested with the police. The Law Commission of India in its 135th report on ?Women in Custody? (1989) had recommended the insertion of a separate chapter in the Code, containing various detailed provisions to avoid harassment to women during arrest and in custody but the amendment fails to take into account this recommendation.

Section 164 of the Code now provides for compulsory medical check-up of rape victims within twenty-four hours. This would ensure that substantial evidence against the accused is not lost. However, the law still lacks a provision for psychiatric help to a rape victim and reference to women help groups. Another addition in the Code could have been incorporation of the Supreme Court guidelines issued in Delhi Domestic Working Women?s Forum v. Union of India6 and the Malimath Committee recommendations. The guidelines include, inter alia, the directive to police to maintain a list of lawyers capable of handling the case of rape victims and to provide them help in rehabilitation. The Malimath Committee had recommended that a suitable provision should be made in the Code whereby the investigating officer should be bound to complete the investigation of cases of rape and other sexual offences on priority basis and requiring the court to dispose of such cases expeditiously within a fixed span of time7

As per the recommendations of the National Police Commission in its fourth report, the amendment to Section 176 now provides for mandatory judicial inquiries in all incidences of custodial deaths and rapes. This would enable the victims to come forward and report their unfortunate stories8 Earlier it was left to the police officers themselves to inquire into crimes committed by their own colleagues, thereby leading to serious doubts about the efficacy of such an inquiry.

One of the main changes introduced in bail laws is the right of the Public Prosecutor to show cause as to why bail may not be granted in recognition of the right of a victim to participate in the trial. Again, under Section 436, it is now mandatory for the court to release an indigent person on bail without asking for any surety, thus providing great relief to millions of poor languishing in jails. Another relevant amendment with respect to bail laws is the incorporation of the new Section 441-A to ensure the genuineness of a surety9 This section provides that every person standing as a surety to an accused person for his release on bail, shall make a declaration before the court as to the number of persons for whom he has stood as surety before and shall also give all the relevant particulars.

Independent prosecuting and investigating agencies are a must for free trial. (Supreme Court in S.B. Sahane v. State of Maharashtra10 and Malimath Committee Report11) For this, the newly added Section 25-A provides for setting up of a separate Directorate of Prosecution which shall function under the Home Department of every State and will be headed by an experienced advocate. There will be only practising advocates in the Directorate, since including police officers in the prosecution agency as per the Malimath Committee recommendations would vitiate the very purpose of setting up an independent prosecution agency. However, conviction rates being low, there should have been some changes to ensure accountability of the prosecuting officers. The Malimath Committee12 also made recommendations that the Director of Prosecution must call for reports in all cases that end in acquittal, from the Public Prosecutor who conducted the case and the Superintendent of Police of the District.

The new amendment to CrPC comes as a blessing to undertrials who have been suffering in jails since many years in direct violation of the fundamental principle of criminal jurisprudence (innocent till proven guilty!) It provides that where a person has already undergone detention amounting to one-half of the maximum period of imprisonment specified for that offence, he shall be released by the court on his personal bond. However, this provision does not apply to those charged of offences for which the punishment of death has been specified as one of the punishments. Release, even without surety, would ensure that this beneficial provision is extended to the poor also. This new law would play a vital role in overcoming the problem of overcrowding of jails, which is one of the main reasons for the abhorrent prison conditions in our country (besides the lax attitude and corrupt practices of the jail authorities). The National Police Commission had recommended in it fourth report that police officers be given the power to compound petty offences with the consent of both the parties. Incorporation of this provision in the Code, with effective safeguards against misuse, would have ensured speedy disposal of cases and provided some relief to overcrowded courts.

Thus we may say that all these changes would be of great help to a layman confronted with the notorious Indian police and caught in the web of unfathomable legal proceedings. The Government may notify these amendments in the Gazette, excluding the implementation of the contentious provisions, till the matter is put to rest after due deliberations and consultations.


* Project Assistant, Police Reforms Programme, Commonwealth Human Rights Initiative, New Delhi. Return to Text

  1. Asish Agarwal, CrPC (Amendment) Bill passed in Lok Sabha, Political News, www., 5-10-2005. Return to Text
  2. (1994) 4 SCC 260 : 1994 SCC (Cri) 1172 : (1994) 2 Crimes 106 Return to Text
  3. See 152nd report on ?Custodial Crimes?, para 14.9, p. 172 (1994). Available at www. Return to Text
  4. G.P. Joshi, Selected Recommendations of National Police Commission, Ribeiro Committee & Padmanabhaiah Committee on Police Reforms, CHRI, (2001). Return to Text
  5. Third report of the National Police Commission, paras 22, 23, pp. 30-31 (1980). Return to Text
  6. (1995) 1 SCC 14 : 1995 SCC (Cri) 7 Return to Text
  7. Malimath Committee on reforms of Criminal Justice System, Government of India, Ministry of Home Affairs (March 2003) available at malimathrecommendations.htm Return to Text
  8. The violence in police custody is at unprecedented rise and this amendment is capable of checking this menace. It is alarming that the Home Ministry recently reported that, nationwide, deaths in custody had increased from 1340 in 2002 to 1462 by the end of 2003. Further, it reported that in 2002, there were 147 policemen facing charges of custodial rape, of the 132 that were tried during the year, only four were convicted. Of the 15 cases left pending for 2003, none were convicted. (Source: Shankar Raghuraman, Rape: A Conspiracy of Silence, Times News Network, 8-5-2005). Return to Text
  9. See ?Sureties for Sale ? Bail Racket Unearthed?, Statesman (Delhi Edn.) 28-5-1995, pp. 1, 9. Return to Text
  10. 1995 Supp (3) SCC 37 : (1995) 30 ATC 519 : 1995 SCC (Cri) 787 Return to Text
  11. Malimath Committee on reforms of Criminal Justice System, Government of India, Ministry of Home Affairs (March 2003) available at malimathrecommendations.htm Return to Text
  12. Id. Return to Text
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