Loading ...
Sorry, an error occurred while loading the content.
 

Chain-Email-Message No. (2) Cr. P. C. (Amendment) Act, 2008, should be Notified, without any further delay.

Expand Messages
  • Milap Choraria
    The Following ‘Code of Criminal Procedure (Amendment) Act, 2008’ is enacted by the Parliament. Assent is given by the President. But, Notification is
    Message 1 of 1 , Mar 10, 2009

      The Following ‘Code of Criminal Procedure (Amendment) Act, 2008’ is enacted by the Parliament. Assent is given by the President. But, Notification is withheld by the Government under the illegal pressures from the Advocates.

      Why?

      What is wrong in the amendments? Amendments are meant to ensure justice and expeditious delivery of Justice. A question should be answered that whether small number of the Advocates are more important for the Government in comparisons to larger number of possible beneficiary from the amendment?

       

      SOME OF THE PROVISION FROM THE CODE OF CRIMINAL PROCEDURE (AMENDMENT) Act, 2008:-

      BE it enacted by Parliament in the Fifty-ninth Year of the Republic of India as follows:—

      1. (1) This Act may be called the Code of Criminal Procedure (Amendment) Act, 2008.

      (2) It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint; and different dates may be appointed for different provisions of this Act.

       

      2. In section 2 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the principal Act), after clause (w), the following clause shall be inserted, namely:—

      ‘(wa) “victim” means a person who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged and the expression "victim" includes his or her guardian or legal heir;’

       

      3. In section 24 of the principal Act, in sub-section (8), the following proviso shall be inserted, namely:—

      “Provided that the Court may permit the victim to engage an advocate of his choice to assist the prosecution under this sub-section.”.

      (Analysis: Victim as a complainant earlier not have right to appoint his own Advocate, as a result a habit is developed amongst most of the Government Advocates to compromise with the accused, under criminal conspiracy.) 

       

      4. In section 26 of the principal Act, in clause (a), the following proviso shall be inserted, namely:—

      “Provided that any offence under section 376 and sections 376A to 376D of the Indian Penal Code shall be tried as far as practicable by a Court presided over by a woman.”.

      (Analysis: Rape related matters are compulsorily would be tried by a Court presided over by a women.)

       

      5. In section 41 of the principal Act,— (This provision needs immediate notification)

      (i) in sub-section (1), for clauses (a) and (b), the following clauses shall be substituted, namely:—

      “(a) who commits, in the presence of a police officer, a cognizable offence;

      (b) against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years whether with or without fine, if the following conditions are satisfied, namely:—

      (i) the police officer has reason to believe on the basis of such complaint, information, or suspicion that such person has committed the said offence;

      (ii) the police officer is satisfied that such arrest is necessary—

      (a) to prevent such person from committing any further offence; or

      (b) for proper investigation of the offence; or

      (c) to prevent such person from causing the evidence of the offence to disappear or tampering with such evidence in any manner; or

      (d) to prevent such person from making any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to the police officer; or

      (e) as unless such person is arrested, his presence in the Court whenever required cannot be ensured; and the police officer shall record while making such arrest, his reasons in writing.

      (ba) against whom credible information has been received that he has committed a cognizable offence punishable with imprisonment for a term which may extend to more than seven years whether with or without fine or with death sentence and the police officer has reason to believe on the basis of that information that such person has committed the said offence;”;

      (ii) for sub-section (2), the following sub-section shall be substituted, namely:—

      “(2) Subject to the provisions of section 42, no person concerned in a non-cognizable offence or against whom a complaint has been made or credible information has been received or reasonable suspicion exists of his having so concerned, shall be arrested except under a warrant or order of a Magistrate.”.

      (Analysis: Police can arrest a person only, when aforesaid conditions allowed him to arrest. This amendment will affect the present syndicates between “Unethical-Advocates+Corrupt-Police-Officers+Fw-Corrupt-Judicial-Officers”. In most of the cases of arrests, even in the cases of murders, bails are granted, if charge sheets are not filed within 90 days. So under the existing law, arrest never helps, any way in adjudication of the case. People who involved in serious crimes, which mostly committed by powerful and influential peoples, are gets bails without any hinders. This amendment will save most of the time consumed by the Police to arrest the accused persons, saved time can be used for proper investigations, and trials, at present which is most isolated area of the criminal justice delivery system. Thus in the crimes of serious nature, the successful results to justice to the victims is just 5-6%)   

       

      6. After section 41 of the principal Act, the following new sections shall be inserted, namely:— (This provision needs immediate notification)

      “41A. (1) The police officer may, in all cases where the arrest of a person is not required under the provisions of sub-section (1) of section 41, issue a notice directing the person against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence, to appear before him or at such other place as may be specified in the notice.

      (2) Where such a notice is issued to any person, it shall be the duty of that person to comply with the terms of the notice.

      (3) Where such person complies and continues to comply with the notice, he shall not be arrested in respect of the offence referred to in the notice unless, for reasons to be recorded, the police officers is of the opinion that he ought to be arrested.

      (4) Where such person, at any time, fails to comply with the terms of the notice, it shall be lawful for the police officer to arrest him for the offence mentioned in the notice, subject to such orders as may have been passed in this behalf by a competent Court.

      41B. Every police officer while making an arrest shall—

      (a) bear an accurate, visible and clear identification of his name which will facilitate easy identification;

      (b) prepare a memorandum of arrest which shall be—

      (i) attested by at least one witness, who is a member of the family of the person arrested or a respectable member of the locality where the arrest is made;

      (ii) countersigned by the person arrested; and

      (c) inform the person arrested, unless the memorandum is attested by a member of his family, that he has a right to have a relative or a friend named by him to be informed of his arrest.

      41C. (1) The State Government shall establish a police control room—

      (a) in every district; and (b) at State level.

      (2) The State Government shall cause to be displayed on the notice board kept outside the control rooms at every district, the names and addresses of the persons arrested and the name and designation of the police officers who made the arrests.

      (3) The control room at the Police Headquarters at the State level shall collect from time to time, details about the persons arrested, nature of the offence with which they are charged and maintain a database for the information of the general public.

      41D. When any person is arrested and interrogated by the police, he shall be entitled to meet an advocate of his choice during interrogation, though not throughout interrogation.”.

       

      7. In section 46 of the principal Act, in sub-section (1), the following proviso shall be inserted, namely:—

      “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.”.

       

      8. For section 54 of the principal Act, the following section shall be substituted, namely:—

      “54. (1) When any person is arrested, he shall be examined by a medical officer in the service of Central or State Governments and in case the medical officer is not available by a registered medical practitioner soon after the arrest is made:

      Provided that where the arrested person is a female, the examination of the body shall be made only by or under the supervision of a female medical officer, and in case the female medical officer is not available, by a female registered medical practitioner.

      (2) The medical officer or a registered medical practitioner so examining the arrested person shall prepare the record of such examination, mentioning therein any injuries or marks of violence upon the person arrested, and the approximate time when such injuries or marks may have been inflicted.

      (3) Where an examination is made under sub-section (1), a copy of the report of such examination shall be furnished by the medical officer or registered medical practitioner, as the case may be, to the arrested person or the person nominated by such arrested person.”.

       

      9. After section 55 of the principal Act, the following section shall be inserted, namely:—

      “55A. 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.”.

       

      10. After section 60 of the principal Act, the following section shall be inserted, namely:—

      “60A. No arrest shall be made except in accordance with the provisions of this Code or any other law for the time being in force providing for arrest.”.

       

      11. In section 157 of the principal Act, in sub-section (1), after the proviso, the following proviso shall be inserted, namely:—

      “Provided further that in relation to an offence of rape, the recording of statement of the victim shall be conducted at the residence of the victim or in the place of her choice and as far as practicable by a woman police officer in the presence of her parents or guardian or near relatives or social worker of the locality.’’.

       

      12. In section 161 of the principal Act, in sub-section (3), the following provisos shall be inserted, namely:—

      ‘‘Provided that statement made under this sub-section may also be recorded by audio video electronic means.’’.

       

      13. In section 164 of the principal Act, in sub-section (1), for the proviso, the following provisos shall be substituted, namely:—

      “Provided that any confession or statement made under this sub-section may also be recorded by audio-video electronic means in the presence of the advocate of the person accused of an offence:

      Provided further that no confession shall be recorded by a police officer on whom any power of a Magistrate has been conferred under any law for the time being in force.”.

       

      14. In section 167 of the principal Act, in sub-section (2),— (a) in the proviso,— (i) for clause (b), the following clause shall be substituted, namely:—

      “(b) no Magistrate shall authorise detention of the accused in custody of the police under this section unless the accused is produced before him in person for the first time and subsequently every time till the accused remains in the custody of the police, but the Magistrate may extend further detention in judicial custody on production of the accused either in person or through the medium of electronic video linkage;”;

      (ii) for Explanation II, the following Explanation shall be substituted, namely:—

      Explanation II.— If any question arises whether an accused person was produced before the Magistrate as required under clause (b), the production of the accused person may be proved by his signature on the order authorizing detention or by the order certified by the Magistrate as to production of the accused person through the medium of electronic video linkage, as the case may be.”;

      (b) after the proviso, the following proviso shall be inserted, namely:—

      “Provided further that in case of a woman under eighteen years of age, the detention shall be authorised to be in the custody of a remand home or recognised social institution.”.

       

      15. In section 172 of the principal Act, after sub-section (1), the following sub-sections shall be inserted, namely:—

      “(1A) The statements of witnesses recorded during the course of investigation under section 161 shall be inserted in the case diary.

      (1B) The diary referred to in sub-section (1) shall be a volume and duly paginated.”.

      (This amendment would create a check on the Manipulations, which might be possible by the Corrupt Police Officers.)

       

      16. In section 173 of the principal Act,—

      (a) after sub-section (1), the following sub-section shall be inserted, namely:—

      “(1A) The investigation in relation to rape of a child may be completed within three months from the date on which the information was recorded by the officer in charge of the police station.”;

      (b) in sub-section (2), after clause (g), the following clause shall be inserted, namely:—

      “(h) whether the report of medical examination of the woman has been attached where investigation relates to an offence under sections 376, 376A, 376B, 376C or 376D of the Indian Penal Code.”.

       

      17. After section 195 of the principal Act, the following section shall be inserted, namely:—

      “195A. A witness or any other person may file a complaint in relation to an offence under section 195A of the Indian Penal Code.”.

       

      18. In section 198 of the principal Act, in sub-section (6), for the words “fifteen years of age”, the words “eighteen years of age” shall be substituted.

       

      19. In section 242 of the principal Act, in sub-section (1), the following proviso shall be inserted, namely:—

      “Provided that the Magistrate shall supply in advance to the accused, the statement of witnesses recorded during investigation by the police.”.

       

      20. In section 275 of the principal Act, in sub-section (1), the following proviso shall be inserted, namely:—

      “Provided that evidence of a witness under this sub-section may also be recorded by audio-video electronic means in the presence of the advocate of the person accused of the offence.”.

       

      21. In section 309 of the principal Act,—

      (a) In sub-section (1), the following proviso shall be inserted, namely:—

      “Provided that when the inquiry or trial relates to an offence under sections 376 to 376D of the Indian Penal Code, the inquiry or trial shall, as far as possible, be completed within a period of two months from the date of commencement of the examination of witnesses.”;

      (b) in sub-section (2), after the third proviso and before Explanation 1, the following proviso shall be inserted, namely:—

      “Provided also that— (a) no adjournment shall be granted at the request of a party, except where the circumstances are beyond the control of that party;

      (b) the fact that the pleader of a party is engaged in another Court, shall not be a ground for adjournment;

      (c) where a witness is present in Court but a party or his pleader is not present or the party or his pleader though present in Court, is not ready to examine or cross-examine the witness, the Court may, if thinks fit, record the statement of the witness and pass such orders as it thinks fit dispensing with the examination-in-chief or cross-examination of the witness, as the case may be.".

      (This amendment will cause a check upon Advocates or their clients, not to seek unnecessary adjournments)

       

      22. In section 313 of the principal Act, after sub-section (4), the following sub-section shall be inserted, namely:—

      "(5) The Court may take help of Prosecutor and Defence Counsel in preparing relevant questions which are to be put to the accused and the Court may permit filing of written statement by the accused as sufficient compliance of this section.".

      (This amendment would ensure expeditious justice delivery system)

       

      23. In section 320 of the principal Act,—

      (i) in sub-section (1), for the TABLE, the following TABLE shall be substituted, namely:—

      “TABLE: Offence  Section of the  Indian Penal Code applicable Person by whom offence may be compounded

      (Table is not mentioned herein)

      (iii) for sub-section (3), the following sub-section shall be substituted, namely:—

      "(3) When an offence is compoundable under this section, the abetment of such offence or an attempt to commit such offence (when such attempt is itself an offence) or where the accused is liable under sections 34 or 149 of the Indian Penal Code may be compounded in like manner.".

       

      24. In section 327 of the principle Act,—

      (a) in sub-section (2), after the proviso, the following proviso shall be inserted, namely:—

      "Provided further that in camera trial shall be conducted as far as practicable by a woman Judge or Magistrate.";

      (b) in sub-section (3), the following proviso shall be inserted, namely:—

      "Provided that the ban on printing or publication of trial proceedings in relation to an offence of rape may be lifted, subject to maintaining confidentiality of name and address of the parties.".

       

      25. In section 328 of the principal Act,—

      (a) after sub-section (1), the following sub-section shall be inserted, namely:—

      (Amendment with regards to accused to be of unsound mind)

       

      26. In section 329 of the principal Act,—

      (a) after sub-section (1), the following sub-section shall be inserted, namely:—

      (Amendment with regards to accused to be of unsound mind)

       

       

      27 and 28. For section 330 and 357 of the principal Act, the following section shall be substituted, namely:—

      (Amendment with regards to accused to be of unsound mind or mental retardation)

       

      Section 29, 30, 31, and 32 with regards to section 372, 416, 437 and Form No. 45 of the Principal Act).
       
      TRUTH SHALL ALWAYS PREVAIL
      Milap Choraria 
      Editor: Suchna Ka Adhikar / RTI TIMES
      National Convenor :
      Movement for Accountability to Public (MAP)
      http://milapchoraria.tripod.com/msp http://rtitimes.net

    Your message has been successfully submitted and would be delivered to recipients shortly.