Saturday, December 27, 2008

Criminal Procedure Code Amendments

The amendments to the Code of Criminal Procedure passed by Parliament in the just-concluded session have not received the attention they deserve. A quick read seems to indicate the following, among other, far-reaching changes:
1. The new section 41 appears to drastically reduce the power of the police to arrest without warrant. The main difference appears to be that mere suspicion as a ground for arrest has been done away with, and there seems to be an emphasis on the 'credibility' of information received which will justify arrests. There are also some reason-recording obligations while making arrests. To what extent will these new obligations be judicially enforceable?
2. The list of offences compoundable without requiring judicial permission appears to have been significantly enlarged in the new section 320.
3. Many other provisions, including video-recording of statements appear to be far-reaching.

Of course, given the institutional set-up of the police, what difference these changes will make in practice in the absence of wider police reforms at the state level is questionable. But it is interesting to note at least some transparency measures (recording of reasons, video-recording etc) being mandated by Parliament through criminal procedure.

4 comments:

thesocialblog said...

i am curious re: section 41.
wht happens when an illegal arrest is made and certain facts are collected as a result of it ?

I know that illegal evidence is still admissible in India but am not clear on the consequences of an illegal arrest apart from habeas corpus and it would have been good if the crpc would've addressed that.

kickinhard said...

The amendments are good but the implementation in spirit, is what matters.

bharati said...

Save Indian Family Foundation (SIFF), a NGO dedicated to Gender Equality and human rights is voicing support of the recent amendments to Code of Criminal Procedures (CrPC), which will put an end to arbitrary arrests and detention by police. President Pratibha Patil signed this CrPC amendment bill. This amendment is expected to improve the human rights record of India and greatly reduce the corruption and extortion in police stations. This will also reduce false complaints and will stop people using police for settling personal and political scores and vendettas. A whopping 40 lac people get arrested in India every year, without justifiable reasons.

Please note, this amendment does not take away the “power to arrest” by police.
Police can arrest the accused provided police has the warrant.
Police can also detain the accused, question and investigate.
The Supreme Court of India has voiced in its various landmark judgments that, “Arrest of a person is a very serious matter and a wrongful arrest causes grave ignominy to the person.”

The third report of the National Police Commission, referring to the quality of arrest by the police in India had mentioned that “power of arrest was one of the chief sources of corruption in the police. The report suggested that by and large nearly 60% of the arrests were either unnecessary or unjustified and that such unjustified police action accounted for 43.2% of the expenditure of the prison department.”

As this law gets implemented,

From now on, police cannot arrest a person easily, if they do not have arrest warrant.
Police can arrest an accused person in a crime having sentence of less than 7 years, only if the accused does not cooperate with police. The police have to give the reasons for arrest in writing.
This amendment does not take away the “power to arrest” of police. It only puts checks and balances to police’s powers, which will go a long way in stopping abuse, torture, corruption and extortion in police stations. With this accountability structure in place, now police will be held accountable, if they do any arbitrary arrests without evidence or investigation.
As police will be free from involvement in personal and political vendettas, the false criminal cases will reduce in the country. It is police and lawyers, who used to gain maximum by encouraging people to file false criminal complaints against each other. This is certain to stop.
With this amendment, even politicians cannot use police against each other for political vendetta.
This landmark reform regarding the way police conducts itself will bridge the huge gap between police and the citizens. Till now, Indian police inherited unconditional power of arrest from police in British Raj, whose goal was to enforce fear in the minds of people of India. Indian police enjoyed the maximum powers to arrest people arbitrarily compared to many evolved democracies in the world.

It is to be noted that more than 1,23,000 women were arrested and most of them jailed in last 4 years under section 498a of IPC without investigation or evidence. This itself shows the enormous powers that police used to enjoy.

Please refer to statistics from National Crime Records Bureau: http://ncrb.nic.in/cii2007/cii-2007/Snapshots.pdf

27,80,559 persons were arrested under IPC crimes and 40,87,246 persons were arrested under SLL crimes in year 2007. Overall 68,67,805 persons were arrested both under IPC and SLL crimes in 2007.

Of which 60% being unnecessary, 40 lacs unnecessary arrests took place in 2007. If police is busy making these 40 lacs (4 million) unnecessary arrests and extorting money, then how can it prevent criminals and terrorists? Where will police get the focus to fight crime?
There are also agencies, who are trying to mislead people by propagating false information about the amendment to CrPC.

Some of the salient features of amendments to Section 41 of the CrPC, pertaining to power of arrests with police are,

The amendment proposes that the police officer may, instead of arresting the person concerned, issue a notice of appearance, asking him to cooperate with the police officer in the probe.
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 and arrest can be made only if the person fails to comply with the notice.
Every police officer while making an arrest shall “bear an accurate visible and clear identification of his name.” At the time of arrest, the memorandum shall be 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.
Often it is found that due to lack of checks on the police’s power to arrest, this power is misused especially in offenses under Section 498A, where it is possible for a married woman to implicate the entire family in a false dowry harassment case. The family is shown the fear of jailing and often either hefty bribes (or extortion amount) to the tune of lacs even are taken from the husband and his family to spare them the ignominy of arrest.

SIFF extends full support to the Government in making these amendments a part of the official gazette. Some of the benefits of making these amendments are:-

This amendment will reduce corruption, abuse and extortion in police stations.
Often the enormous “power to arrest” given to police used to result in personal and political vendettas. People used to influence police to settle personal and political scores. The amendment will put an end to all these dangerous activities.
This is the next revolutionary incident after passing of RTI act so far as anti-corruption drive is concerned.
This will bring focus to the activities of police towards creating a crime free and terror free society. At present, police worry more about the extortion money every month than terrorism or crime in the city.
Even politicians can not influence the police now to get their opponents arrested arbitrarily.
It is to be noted that people are sent to jail (or judicial custody) by a magistrate and not by police. So, people who are accused of crime will as usual be sent to jail after police completes investigation.
As per the third report of National Police Commission, since 60% of the arrests are unnecessary and unjustified, it means that in the jails, 60% innocent people have mixed with 40% criminals. This amendment will put an end to this dangerous trend.
SIFF is in touch with some reputed senior lawyers in Bangalore and they have opinioned that these amendments are a positive step towards a better civil society.
A gory picture of the misuse of the power to arrest is evident from the fact that, 1,23,000 women have been arrested in the last four years (2004-2007), as per National Crime Records Bureau, on a mere complaint, without trial or investigation, in offenses under Section 498A. These women are the mothers, sisters, and sister-in-laws and female children in the family of men who are mostly falsely implicated in such cases as section 498A of the IPC has come under serious scanner of being heavily misused. With this amendment in place, such gruesome mishaps on women can be averted.

It is a misrepresentation of the good intentions of the Government of India that the current proposed amendment will work to help criminals. The current proposed amendment nowhere does curtail the powers of the police to arrest criminals. It merely streamlines and regulates the process to put checks on misuse of the power and tends to introduce a sense of accountability and opposing such a regularization of process only points to the existing anarchy in the system which needs a serious check

It is left to the choice of the Government of India whether it wants to support anarchy or regularization. India is a democracy which requires high concern of the life and liberty of its citizens. Regularization of process and introduction of accountability is a necessary ingredient of the requirement. Passing this CrPC Amendment, the Government of India will be implementing the above requirement in practicality.

Our Demands

Immediately implement the CRPC Amendment which aims at stopping arbitrary arrests .
Immediately Form a 3 member compliance committee consisting of people who have proven themselves innocent with powers to summon and punish the errant officers who may misuse and side steps the intentions of provisions by giving frivolous reasons of arrest.
Ensure that police provides the compliance order of section 41 on demand to any citizen who requests so that frivolous reasons are not used to justify arrests

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Katyayani said...

Seminar: Code of Criminal Procedure (Amendment) Act, 2008 & Judicial Reforms

http://voice4india.wordpress.com/2009/03/03/seminar-code-of-criminal-procedure-amendment-act-2008-judicial-reforms/