Judicial Reforms

The Criminal Procedure Code (Amendment) Act, 2008, which provides for sweeping changes in the criminal justice delivery system, came into effect from December 31, 2009. The Act, got President’s assent in January last year, but was kept in abeyance for about a year. It incorporates the recommendations of the Law Commission, the Justice Malimath Committee’s report and the guidelines issued by the Supreme Court from time to time to prevent overcrowding of jails with undertrials. Lawyers stoutly opposed the amendments relating to arrest, notice of appearance before a police officer and adjournments, and urged the government not to notify the amended law. So the Centre decided not to notify Sections 5, 6 and 21 (b). Under the new law, statements can be recorded through audio/video or other electronic means. In a bid to check witnesses turning hostile in important cases, an amendment to Section 275 provides that evidence of all witnesses in warrant cases — where the punishment is two years or more — may also be recorded by audio-visual means in the presence of the advocate of the accused. Right now, in all warrant cases, evidence of each witness is taken in writing either by his dictation in open court or, where he is unable to do so owing to a physical or other incapacity, under his direction and superintendence, by an officer of the court appointed by him in this behalf. This evidence has to be signed by the magistrate and forms part of the record. In Section 164, the amendment proposes that any confession or statement made under it may also be recorded by audio-video electronic means in the presence of the advocate of the person accused. Similarly, in Section 167 an amendment authorises a magistrate to extend further detention in judicial custody of an arrested person on production of the accused either in person or through the medium of electronic video linkage.


To deliver gender justice some amendments pertaining to women have been added. With the permission of court, a rape victim can engage an advocate to help the prosecution. Any victim’s statement will have to be recorded at the victim’s home or in a safe place or a place of her choice. As far as practicable, the statement should be recorded by a woman police officer in the presence of the victim’s parents or guardian or near relatives or social worker of the locality. Investigation of rape/child sex abuse must be completed in three months from the date when information was recorded by the officer in charge of the police station. An amendment in Section 173 proposes that 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. The amendment also proposes that rape victims shall be interrogated at the place of their choice be it at home or her relative’s place. Trial of rape cases shall also be held, as far as possible, by a woman magistrate and preferably in a fast track court and as far as possible, rape cases be investigated by female police officers only. Another important amendment states that if a pregnant woman is given death sentence, the High Court would automatically commute the death sentence to life. At present, death sentence awarded to a pregnant woman is not implemented till the time she has given birth to the child. The police officer will also need to inform the arrested person that he has a right to have a relative or a friend named by him or her informed of his arrest. When any person is arrested and interrogated by the police, he/she shall be entitled to meet an advocate of his or her choice during interrogation, though not throughout interrogation. The amendment in Section 54 makes it mandatory for the police to conduct examination of an arrested person by a medical practitioner.

Section 372 of the CrPC, as amended, stipulates that the victim will not need the nod of the law enforcement or prosecuting agency to appeal against a court order. Under the present arrangement, an appeal can be filed only after the prosecution gives the go-ahead. It will enable the victim to go on appeal against any order passed by the court acquitting the accused or convicting him of a lesser offence, or awarding inadequate compensation. Such appeal shall be made in the court where an appeal is ordinarily made against the order of conviction. The move comes against the backdrop of a raging controversy over the minor punishment handed out to former Haryana DGP S P S Rathore for molesting Ruchika, and abetting her suicide.

In a bid to make the police more accountable and transparent in the procedures, another amendment makes it mandatory for the State governments to display on the notice board kept outside the control rooms of every district, the names and addresses of the persons arrested and the name and designation of the police officers who made the arrests. The Act mandates the police officer making an arrest to bear his identification badge or tag. A memorandum of arrest shall be prepared, witnessed and countersigned. The person arrested shall be told that he/she has the right to inform a relative or friend. To protect the interests of the accused, it stipulates that an arrested person be examined immediately by a medical officer.

The law provides for compensation to victims for illegal arrest and police harassment. In coordination with the Centre, every State should prepare a scheme for providing funds for compensation to the victim or h i s / h e r d e p e n d a n t s who suffered loss or injury as a result of the crime and who require rehabilitation. Whenever a recommendation is made by a court for compensation, the District Legal Service Authority or the State Legal Service Authority shall decide the quantum of compensation. If the trial court is satisfied that the compensation awarded under Section 357 of the Cr. PC is not adequate, or the cases end in acquittal or discharge or the victim has to be rehabilitated, it may recommend compensation. Under Section 309, an amendment makes adjournment of cases in the court more difficult.

By far the most significant amendment is proposed in Section 41 of the Cr.PC which lays down certain conditions on the police officer for arresting a person accused of committing a cognisable offence that carries imprisonment that can be extended up to seven years. The IPC provides for punishment up to seven years for offences including attempt to commit culpable homicide, robbery, attempt to suicide, kidnapping, voluntarily causing grievous hurt, cheating, outraging a woman’s modesty and death caused by negligence and dowry harassment. The amendment provides 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. No arrest will be made in a non-cognisable offence except under a warrant or order of a magistrate. The amendment provides that the reasons for arrest should be sound and recorded in writing by the police officer. Where such a notice is issued to any person, it shall be the duty of that person to comply with it and arrest can be made only if the person fails to do so. The new amendment can be misused over its discretionary powers to shield the culprits by the police department as well as politicians and could give a free hand to scamsters, unscrupulous elements and other offenders without any fear of being arrested. It would remove fear from the minds of criminals, who will misuse the provisions under the garb of personal liberty. But it aims at ending arbitrary arrests and detention by police. The amendment is expected to reduce corruption and extortions in police stations and will also decrease the number of false complaint. The police (investigating officers) is required to give reasons and record those reasons in writing for making an arrest. It is not like if compliance in a case is there, the person should be arrested. Independent studies indicated that upto 60 per cent of the arrests made in the country were needless since the detained persons did not prove to be useful for the purpose of investigation or trial. Amongst the many concerns, a consistent stand has been the negative image of the police in the mind of the ordinary citizen. The main reason for this is the high incidence of arbitrary arrests and custodial abuse — even for minor offences. More often than not, it is poorer people who are more likely to be arrested, detained and mistreated, even in the course of routine investigations.

Experience shows that worst violations of human rights take place during the course of investigation, when the police with a view to secure evidence or confession often resorts to third degree methods, including torture, and adopts techniques of screening arrest by either not recording the arrest or describing the deprivation of liberty merely as a prolonged interrogation. The amendments are “forward looking and humane,” which, would ease pressure off the police, courts and jails.