Code Of Criminal Procedure Amendments 2006: Affect vs. Effect

Code Of Criminal Procedure Amendments 2006: Affect vs. Effect

By Mrigayanka Roychowdhury

Hill and Associates (India) Pvt. Ltd.

Introduction

Under the Indian legal system a man is regarded as innocent until proven guilty beyond reasonable doubt. The 2006 amendment to the Code of Criminal Procedure (CrPC) seeks to re-establish this principle, which had hitherto taken a back seat in criminal trials over the years. The amendment aims at uprooting the corruption and abuse of the Indian legal system by addressing the loopholes that result in the miscarriage of justice.

The Government after due deliberations and consultations will notify these amendments in the Official Gazette. The modifications are based on the recommendations of the Law Commission in its 154th, 177th and 178th reports.[1] The aim, in the words of the lawmakers, is to create a better, effective and humane criminal justice system.[2]

The amendments aim to bring justice and equity to both sides of the law. That is to say that while on the one hand the amendments address the rights of the accused and under trials, on the other hand, they maintain the balance by addressing the rights of the victims and their kin as well.

Abuse of position by law officials occurs due to the arbitrary powers that are afforded to the police. While the reasoning of a section may be objective, the language however is subjective and leaves much room for interpretation, which is misused by corrupt law officials. The Amended text of the Code of Criminal Procedure (CrPC) is relatively clearer and more explicit and thus may provide a solution to the existing corruption and abuse by law officials.

Custodial Crimes

This issue of custodial crimes is by no means new, and was addressed previously by the Supreme Court in its landmark judgment in the case of Joginder Singh v. State of UP[3]. The same was also looked into by the 4^th Report of the National Police Commission[4] as well as the 152^nd Report[5] of the Law commission.

Taking inspiration from these, the amended Section 51 of the CrPC will provide that any person held in custody has the right to inform one person of his choice of the arrest and place of detention. The aim is to enable the accused to arrange for adequate assistance during trial and investigation.

Protection of Women

In most cases of harassment women are the prime targets.[6] While the 135^th law commission report[7] had attempted to address this issue, the current amendment has branched towards a different alternative, addressing the same cause. Section 46 of the CrPC will be amended to provide that no woman can be arrested after sunset and before sunrise, unless exceptional circumstances prevail, wherein a female police officer may do so after obtaining written permission of the Judicial Magistrate concerned.

An attempt has also been made to check the abuse of power by officials in evidentiary aspects of cases involving rape victims. Section 164 is to be amended to provide for compulsory medical check-up of rape victims within twenty-four hours.

Judicial Enquiries

Section 176 will provide for mandatory judicial inquiries in all incidences of custodial deaths and rapes. The above provisions will likely provide for a more transparent evidentiary system and also curb instances of custodial torture and rape. Previously, cases of custodial abuse were investigated by the police officers and hence many custodial crimes went unreported, with the mandatory requirement of a judicial enquiry, the margin for custodial abuse reduces dramatically.

Laws Relating to Bail

In the past, the provisions relating to bail weighed heavily in favor of the well to do. The deciding factor in the grant of bail was the financial capacity of the accused, more than the nature of the crime.

Section 436 will provide an adequate solution by making it mandatory for the court to release a destitute person on his personal bond, without asking for any surety. The law will also make bail mandatory to an under trial, for crimes other than those for which death penalty is specified, if the accused has spent more than half the period in custody than he would get on conviction.

While certain exceptions are allowed, in no case can a person be held in jail if he has already served more than the maximum period of imprisonment provided for the said offence. This will provide relief to thousands of under trials who are languishing in jails for petty offences.[8]

Previously the poor were dumped into jails unceremoniously and left to languish for indefinite periods. The said amendment will provide an effective solution to this malpractice.

Genuineness of Surety

Section 441-A will act as a follow up to addressing loopholes in provisions relating to bail by ensuring genuineness in cases where a surety is provided. Under this section any person standing as a surety to an accused person for his release on bail has to make certain mandatory disclosures before the court. These include disclosing the number of persons for whom he/she has stood as surety previously, and providing the required particulars for record by the court.

Witness Protection

Section 164 of the CrPC is to be amended so as to make it mandatory for the investigating officer to get statements of all material witnesses questioned by him during the course of investigation. This is aimed at curbing the tendency of witnesses to turn hostile. Furthermore, the changes will put an end to the practice of witnesses turning hostile after recording their confessional statements before a magistrate and meet the demand of law enforcement agencies for protecting witnesses from pressure of any kind.

Victim as Party to Trial

The amendments also address a previously untouched issue of the participation of the victim’s kin as party to a trial. The amendment seeks to allow the kin of victims to become parties to the trial against the accused. Moreover it also provides the kin of the victim with the right to file an appeal to check possible collusion between the defense and prosecution lawyer, where they felt that prosecution had not handled their case fairly.

Conclusion

While the ambit of the said amendment is wide and seeks to encompass many key areas, there is still some room for improvement. The amendment is yet to address certain relevant aspects like the accountability of a prosecuting officer, completing investigation of certain offences within a fixed span of time, psychological rehabilitation of victims of rape or custodial torture, compounding of petty offences with consent of both parties etc.

The present amendment is a laudable step and provides hope that the future may see similar efforts by the lawmakers in this direction. While the text of the amendment suggests a positive outcome, much depends on the implementation of the law as well as public awareness. An effective law is incomplete without equally effective implementation. With the modifications complete, the next hurdle is to ensure implementation and awareness of the law so as to promote justice, equity and good conscience

[8] There are currently 11659 under trials in Tihar jail, which is the largest prison of South East Asia, located in the western part of Delhi. See: http://tiharprisons.nic.in/html/profile.htm (Accessed on 7 August 2006)