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Tuesday, 16 June 2015

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Legal Scope: Criminal Law (Amendment) Act, 2013 & Its Impact On CrPC


Introduction
Three long, tiring years have passed, fighting for justice, screaming out slogans for women empowerment and giving consolation and comfort to the tattered position of females in India.
 The above discussion is about nothing but the incident which shook the roots of Indian morality and forced the Indian judiciary to change the existing rules-The Delhi Gang Rape Case. The above mentioned change in the law refers ultimately to the much hyped Criminal Law (Amendment) Act, 2013. It has had its impact on all the criminal laws-namely – Indian Penal Code[1], Indian Evidence Act[2], and The Code of Criminal Procedure[3], but what we are here to discuss is its impact on CrPC.

The CrPC, 1973 is an act to consolidate and amend the law relating to criminal procedure.[4]It is the main legislation on procedure for administration of substantive criminal law in India.[5] It was enacted in 1973 and came into force on 1st April, 1974.[6]
Altogether, there are 484 sections[7] which provide the machinery for investigation of crime, apprehension of suspected criminals,and procedure for collection of evidence i.e. search seizure, determination of guilt or innocence of accused person, procedure of trial etc. It also deals with maintenance of wife, child and parents (S.125 CrPC).[8]


Historical Approach: A Brief of All the Amendments
The first Law Commission presented its Report on the Reform of Judicial Administration in 1958[9] but it was not concerned with detailed scrutiny of provisions of CrPC. It, however, did make some recommendations as to the law of criminal procedure. The convention of amendments on finding any discrepancy or any variation in the code started soon thereafter the result is a long list of amendments. Out of this never ending list the importance of Amendment Act of 1990[10] is worth mentioning as it inserted a new section[11] which enables investigating authorities and criminal courts to issue letter of request to foreign countries in order to collect evidence and transmit the same.Many other amendments have been felt to be essential like the Criminal Procedure (Amendment) Act, 2005 which introduces a new section[12]and also gives the definition of indigent. These provisions enable a speedier bail to be granted to a person who is not capable of arranging a bond and has right of bail. It inserted a section[13] which provides procedure for medical examination of rape victims. The much wanted definition of “victim” was inserted by an Amendment in 2009[14]while; it was the same Amendment which introduced in Chapter III of the Code that if any offence relating to women has been committed, then court shall be presided over by a woman.[15]
List of amendments[16]
1.     Code of Criminal Procedure (Amendment) Act, 1978 (45 of 1978)
2.     Code of Criminal Procedure (Amendment) Act, 1980 (63 of 1980)
3.     Criminal Law (Amendment) Act, 1983 (43 of 1983)
5.     Code of Criminal Procedure (Amendment) Act, 1988 (32 of 1988)
6.     Code of Criminal Procedure (Amendment) Act, 1990 (10 of 1990)
7.     Code of Criminal Procedure (Amendment) Act, 1991 (43 of 1991)
8.     Code of Criminal Procedure (Amendment) Act, 1993 (40 of 101,3)
9.     Criminal Law (Amendment) Act, 1993 (42 of 1993)
10. Code of Criminal Procedure (Amendment) Act, 2001 (50 of 2001)
11. Code of Criminal Procedure (Amendment) Act, 2005 (25 of 2005)
12. Criminal Law (Amendment) Act, 2005 (2 of 2006)
13. Code of Criminal Procedure (Amendment) Amending Act, 2006 (25 of 2006)
14. Code of Criminal Procedure (Amendment) Act, 2008 (5 of 2009)
15. Code of Criminal Procedure (Amendment) Act, 2010 (41 of 2010)
16. Code of Criminal Law (Amendment) Act, 2013

Criminal Law (Amendment) Act, 2013[17] – What the Law Says
The opening lines of the Act states that its purpose is to amend the IPC, CrPC, Indian Evidence Act and protection of children from sexual offences act.[18] Amongst all these acts and codes, we pick CrPC as our point of focus for study.
The Act was introduced as a bill in the LokSabha on 4thDecember 2012[19] to provide for a stringent and draconian punishment for crimes and misdemeanor against women. The increasing monstrosity and abuse against women was creating a disgrace to the society. After the horrendous incident of gang rape which occurred on 16thDecember 2012 ,a committee , headed by Justice J.S.Verma[20] was set up to make recommendations on amending the various laws to provide for speedy justice and enhanced punishment for such offenders in cases of sexual assault of extreme nature. The report was submitted on 23rd January 2013.[21]
The immediate need was felt to bring revised laws into effect as the rate of growing incidents which the country to ignominy and ill – repute and tarnished and tainted the morality of India was picking up speed.In view of this urgency the act was promulgated on 3rd February 2013.[22]


The introduction of this amendment brought many changes in the CrPC which are as enlisted herein under:
  1. As the amendment had it effect in IPC and made out new offences of voyeurism and stalking from Ss.367A to 367E, so for the clarity of the same the related provisions in CrPC[23] were made to include separately the sections, as it did not previously have S.376E IPC. It says “section 376A, 376B, 376C, 376D and 376E” and also 376 as it previously stated i.e. along with S.376, it now includes other new sections.
2.      The provisions for identification of person arrested when the person who is identifying the same is mentally or physically disabled has been amended. The provision inserted says that such process of identification shall take place under the supervision of Judicial Magistrate and also that the comfort of such person shall be kept in mind. It is also inserted by the amendment that such identification shall be video graphed.[24]
  1.  Amendments were introduced in case of providing information in cognizable case. If any such information is given by a woman against whom crime of the nature of sexual offence is committed then the information will be recorded by a woman police officer or a woman officer and that if such person is temporarily or permanently, mentally or physically disabled then information will be recorded by police officer in residence of such person or at convenient place with the help of interpreter or educator.[25] Such information shall be video graphed and statement shall be recorded by Judicial Magistrate under clause (a) of sub-section 5-A of S. 164 CrPC.
  2. Another effect of amendment is the substitution of words “under fifteen years of age or above age of sixty-five years or woman or mentally or physically disabled” for the words” under age of fifteen years or woman”.[26] The amendment incorporates senior citizens and mentally or physically disabled person to be given the privilege that they do not have to attend the police station if they are witness. Police may examine them at their residence.
  3. The examination of victim of any sexual offence after the amendment can be recorded only by a woman police officer or woman officer.[27]
  4. Amendment provides that the statement by any victim of sexual offence shall be recorded by Judicial Magistrate and if such person is physically or mentally disabled, help of educator or interpreter shall be taken. Such statement shall also be video graphed.[28] In the above mentioned case of disabled person, the statement recorded shall be considered to be a statement in lieu of examination in chief and there is no need to record the same at time of trial.
  5. The amendment says that no sanction shall be required in case of offences of disobedience of public servant i.e. Ss.166A and 166B or any sexual offence.[29]
  6. A new section was inserted by the amendment[30] and it says that the cognizance shall not be taken of the offence punishable under S.376-B IPC i.e. in marital rape unless the satisfaction should be that the complaint is made by wife against the husband.
  7. Provision has been added that if any woman below the age of 18 years is alleged to be subjected to rape or sexual offence then court may take appropriate measures to ensure that she is not confronted by accused and that the right of cross examination of accused is also safeguarded.[31] This solves a two-fold purpose; one in the interest of victim and other in the interest of accused i.e. it is based on the principles of natural justice, audi alteram partem.
  8. The words “held as expeditiously as possible and in particular when the examination of witness has once begun” have been removed and in its place the words “continued from day to day” have been put.[32] This makes the provision state that the notion of trial must be rather to bring more accurate result than just finishing off the whole thing to merely get an expeditious result. Yet the basic essence of speedy trial has not been lost as the proviso added talks about the minimum time of two months from the date of filing charge sheet which is given to complete inquiry or trial in cases of sexual offences.
  9. A new Section was inserted[33]which says that the compensation payable by State Government under S.357-A CrPC shall be in addition to payment of fine to victim under S.326-A or S. 376-D of IPC.
12.  Amendment provides that all hospitals whether Public or Private run by Central or State Government or Local Bodies shall provide first aid to victims of S.326A or Ss.376 , 376 -A to376- E, IPC , free of cost and inform to the police of such incident.[34]

Amendment of First Schedule[35]
The first schedule of CrPC has classified all the acts punishable under IPC, 1860 into cognizable and non-cognizable offences as well as bailable and non bailable offences. It also mentions by what court the offence is triable. The Code itself does not give any reasoning as to such classification.
It was seen that the existing classification of offences was becoming a major cause for the high incidents of arbitrary and unnecessary arrest in the country and in yet other cases the accused used to roam free due to loose laws in the country. The scheme of classification was found out to be out-dated and redundant. These loopholes called out for a serious change insuch classification which saw many amendments in First Schedule, major portion of which was in women related offences.The amendments are worth noting and are listed below:
  1. Section 166-A and 166-B of IPC have been inserted by Criminal Law (Amendment) Act. The former has been made cognizable, bailable and latter is non-cognizable and bailable. Both are triable by magistrate of first class. These refer to offences by public servant and their disobedience.
  2. After Section 326, IPC , two new sections, Section 326A and 326 B have been added, they both have been made cognizable and non bailable and can be tried by Court Of Session. These sections refer to acid attack.
  3. Section 354 IPC has been made non-bailable, but no notification has been made of it becoming non-bailable, thus, as for now it is bailable. Rest of the sections,[36] are bailable, however S.354-B IPC is non bailable and second conviction in Ss. 354-C and 354-B IPC is non bailable.
  4. The offences under a bulk of Sections[37]are made non billable while only S.376- B IPC is left bailable.

Notification is the most important part of any amendment. As for S.354, any notification has not yet been passed, so, it is still bailable. Let us examine other section; S. 324.This was made bailable[38], but a subsequent notification dated 21st June 2006, in gazette declared that this Section of IPC is not non bailable offence[39], hence for now, it is still bailable.

Reforms suggested by Malimath Committee
It is not that the idea of amendment has never come up before, but given by present legal scenario and condition of our judicial system, it becomes all the more relevant to ask the question: is there anything more that has to be done to make it a perfect code? There still are many minor offences against property which are bailable like theft and related offences;while offences like causing simple hurt are bailable. The major portion of the backlog of cases in courts consists of regulatory offences such as dishonor of cheques, traffic violation etc.[40]
The Malimath Committee suggested that the offences to be classified into the following categories:
  • Social Welfare Code
  • Correctional Code
  • Criminal Code
  • Economic and Other Offences Code[41]
This would, as per the committee maintain the proportion of fines and punishment.

Concluding Remarks and Suggestions
The main question is that how far is it possible to abide by the above suggestions by Malimath Committee? Whenever a new amendment is introduced there is a great hullaballoo in the country. From street marches to making a documentary like “India’s Daughter” and enduring the subsequent remarks of critics, Indian law has gone through, is still going through and maybe will continue to go through a series of changes in law related to crimes. This is because, what we need to really do is not only to make amendment in pen and paper but amend the minds and mentality of people which is the seat of crime as on one hand there are protectors of laws suited in black and white with a list of amendments and yet newer ones in line but on the other hand there are hard-core criminals like Mukesh Singh who will never be guilty of their offences and say till the end, “Taali Ek Haath Se Nahin Bajti".[42]
 I strongly feel that the seat of crime should be negated and this can be done by good education, inculcating moral and value education and curbing the immoral seeds which is now-a-days increasingly growing at a fast pace in the younger generation. All this can be done by giving moral values and all the more at the judicial level, I think that , keeping in mind the increasing monstrosity of present generation, it would be better  rather not to follow the age old rule of “acquit hundreds of guilty than to convict one innocent”. I strongly feel that when even one guilty person is acquitted by the court, on the presumption of lack of evidence or say, on plea on grounds of being juvenile, he thinks himself to be free to commit more and more crime and he goes on polluting the whole of the society. So, the court must be cautious in giving judgement in serious offences.


About the Author:





Sanya Darakhshan Kishwar is a third year BSc.LLB. student from Central University of South Bihar, Gaya. She is currently interning at For the Sake of Argument.She is passionate about books and loves to read case laws in her free time.









[1] 45 of 1860
[2] 1 of 1872
[3] 2 of 1974
[4]The Code of Criminal Procedure,1973 , available at http://www.delhidistrictcourts.nic.in/CrPC.htm , last seen on 31/03/2015
[5]DiptiKhatri,Criminal Procedure In India ,Academike :Lawctopus' Law Journal ,2015(ISSN: 2349-9796) available at http://www.lawctopus.com/academike/criminal-procedure-india/ , last seen on 31/03/2015
[6]The Code of Criminal Procedure,1973,available at http://lawyerslaw.org/the-code-of-criminal-procedure-1973/ , last seen on 31/03/2015
[7]The Code of Criminal Procedure,1973, available at www.vakilno1.com/bareacts/crpc/criminal-procedure-code-1973.htm , last seen on 30/03/2015
[8]The Code of Criminal Procedure,1973 ,available at http://en.wikipedia.org/wiki/Code_of_Criminal_Procedure,_1973 , last seen on 30/03/2015
[9]First Law Commission, available at http://www.lawcommissionofindia.nic.in/main.htm , last seen on 31/03/2015

[10]The Criminal Law Amendment Act, 1990,available at http://www.vakilno1.com/bareacts/laws/the-criminal-law-amendment-act-1990.html, last seen on 31/03/2015

[11] S.166A,The Code of Criminal Procedure,1973
[12] S.436A,The Code of Criminal Procedure,1973
[13] 164A,The Code of Criminal Procedure,1973
[14]The Criminal Procedure Code(Amendment)Act,2009, available at http://www.parliament.gov.sb/files/legislation/Acts/Criminal%20Procedure%20Code%20%28Amendment%29%20Act%202009.pdf, last seen on 31/03/2015
[15] S.26,The Code of Criminal Procedure,1973
[16]Code of Criminal Procedure-Amendments, available at http://en.wikipedia.org/wiki/Codes_of_Criminal_Procedure_-_Amendments ,last seen on 30/03/2015
[17]The Criminal Law (Amendment) Act, 2013 No, 13 of 2013,available athttp://www.advocatekhoj.com/library/bareacts/criminallawamendment/index.php?Title=Criminal%20Law%20%28Amendment%29%20Act,%202013 , last seen on 31/03/2015
[18]ibid
[19]All about the Criminal Law Bill, available at http://www.prsindia.org/pages/155/ , last seen on 31/03/2015
[20] ibid
[21] ibid
[22]ibid
[23]Ss. 26 ,173 &327,The Code of Criminal Procedure,1973
[24] S. 54-A, The Code of Criminal Procedure,1973
[25] S.154, The Code of Criminal Procedure,1973
[26] S.160, The Code of Criminal Procedure,1973
[27] S. 161, The Code of Criminal Procedure,1973
[28]S. 164, The Code of Criminal Procedure,1973
[29] S. 197, The Code of Criminal Procedure,1973
[30] Section 198-B, The Code of Criminal Procedure,1973
[31] Section 273, The Code of Criminal Procedure,1973

[32]S. 309, The Code of Criminal Procedure,1973
[33] S. 357-B, The Code of Criminal Procedure,1973
[34] S.357-C, The Code of Criminal Procedure,1973
[35] See S.24, Criminal Law (Amendment)Act,2013
[36]Ss. 354-A, 354-C , 354-D, The Indian Penal Code,1860
[37] Ss.370 and 370-A, 376, 376, 376-A, 376-C, 376-D, 376-E, The Indian Penal Code,1860
[38] See Section 42 (f) (iii) of Criminal Procedure (Amendment) Act 2005 (25 of 2005)
[39]Y.SrinivasaRao ,Whether Section 324 Of IPC Is Bailable Or Non-Bailable ,available at https://articlesonlaw.wordpress.com/2013/01/13/remand-should-not-be-made-mechanically/ , last seen on 28/03/2015.
[41] ibid
[42]AnahitaMukherji,Activists critical of Nirbhaya documentary's approach to rape, available at http://timesofindia.indiatimes.com/city/mumbai/Activists-critical-of-Nirbhaya-documentarys-approach-to-rape/articleshow/46602770.cms ,last seen on 28/03/2015

2 comments:

Prince Raj said...

Hi,

Great Post!I appreciate your efforts. This blog is ever informative. Thanks....

Criminal lawyer

Prof. P.K.Pattnaik said...

Dear Sanya Darakhshan Kishwar
If you insert the relevant provisions of law in the foot notes
it would be better. Good Attempt. Keep writing

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