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Subversion of fair trial in India: A critique of the Code of Criminal Procedure (Amendment) Bill, 2006

Salar M Khan, Advocate, Delhi, India

The Code of Criminal Procedure (Amendment) Bill, 2006 (the Bill), is pending before the parliament of India. The stated object of the bill is “to ensure fair and speedy justice and to tone up the criminal justice system”. The bill seeks to amend various provisions of law pertaining to witnesses, trial procedures, investigation of offences, arrest, etc.

This is the 10th time that the Code of Criminal Procedure (CrPC), 1973 is to be amended. It was already amended in 1978, 1980, 1983, 1988, 1990, 1991, 1993, 2001 and 2005. The enactment itself grew from a comprehensive review of the old CrPC of 1898, from 1961 to 1969, issued in five reports of the Law Commission of India (the 32nd, 33rd, 35th, 36th and 41st).

Some of the provisions of the Bill are welcome, including those providing for participation of victims in prosecution, the formulation of a victim compensation scheme, revision of trial procedures for accused incapable of making a defence due to unsoundness of mind, and on the requiring of an accused to execute a bail bond when appearing before the appellate court. Provisions in the 2006 Bill relating to investigation and prosecution of offences against women (clauses 4, 11, 18, 20, 28 and 31) are also a step in the right direction. However, such provisions can be effective only in a wider policy framework aiming at a socially-inclusive and pluralist judiciary.

Many provisions of the Bill are either deficient or entirely incompatible with settled principles of criminal jurisprudence. Such provisions should either be suitably amended or dropped altogether before passage through parliament. The provisions seeking to amend procedure relating to arrest are deficient. They do not incorporate all the requirements laid down by the Supreme Court in the D K Basu Case. Further, the absence of enforcement mechanism and consequences of non-compliance of the procedure are glaring omissions that need to be addressed.

Provisions ostensibly aimed at preventing witnesses turning hostile during trial, deletion of summons procedure of trial, use of video conferencing for recording of evidence and extending remand of the accused are obnoxious and severely hit at established principles of criminal jurisprudence. They sacrifice fairness of investigation and trial in favour of speed and administrative expediencies. The government must drop such provisions completely.

It is relevant that some of the provisions contained in the present Bill were also part of the Criminal Law (Amendment) Bill, 2003 that were dropped at the time of its passage. That bill was based upon the 142nd, 154th and 178th reports of the Law Commission, the Malimath Committee Report on Reforms of the Criminal Justice System, and the Twenty-Eighth Report (1996) of the Committee on Home Affairs on the Criminal Law (Amendment) Bill, 1994.

The 2003 Bill sought to amend the Indian Penal Code, 1860 (IPC), the CrPC 1973 and the Indian Evidence Act, 1892. Its stated object was “to improve upon the existing criminal justice system in the country, which is besieged by huge pendency of criminal cases and inordinate delay in their disposal on the one hand and very low rate of conviction in cases involving serious crimes on the other”. It introduced plea-bargaining for the first time in the criminal justice system of India.

The 2003 Bill sought to amend the IPC for protection of witness against threat and inducement by prescribing punishment with imprisonment that may extend to seven years or with a fine or both (clause 2, regarding IPC section 195A; the provision is now a part of the IPC). It also proposed that statements of witnesses recorded by police during investigation, if reduced in writing and in cases where punishment is less than seven years could be signed, acknowledged and quickly transmitted to the magistrate. It proposed that during investigation only of offences punishable with death or imprisonment for seven years or more that a magistrate should record evidence of all material witnesses. Moreover, it provided for summary trial for perjury and enhancement of punishment for the same. It also proposed consequential amendment in the Indian Evidence Act 1872. All these provisions were dropped at the time of its passage through parliament.

The present Bill includes the above provisions and in its statement of objects purports to be aimed at “preventing the growing tendency of witnesses being induced or threatened to turn hostile by the accused parties who are influential, rich and powerful”. Notably, no fresh reason has been provided for their re-inclusion when such provisions were dropped from the 2003 Bill after the Parliamentary Standing Committee on Home Affairs objected to them in its 111th report.

Law reform must not be dictated by administrative expedients but must aim towards achieving a system that is just, fair, efficient, transparent and accountable. It is axiomatic that fairness of the process cannot be sacrificed in favour of speed and administrative expediencies. The proposals based upon such approaches, whether contained in the Justice Malimath Committee report, some Law Commission reports or in any other committee report, must be rejected. 

A dubious approach to preventing witnesses from turning hostile
At present under the CrPC 1973 a statement made to the police during investigation of a cognizable offence may be recorded in writing. A person is bound under section 161 to answer all questions asked by the police officer except those that tend to expose the person to a criminal charge or to a penalty or forfeiture. Such a statement is not treated as substantive evidence. A statement made to the police can be used at the trial of the offence for a limited purpose of contradicting a person who is actually examined as a prosecution witness. The CrPC further provides in section 162 that no statement recorded by any person during the investigation of an offence shall be signed. The courts have repeatedly held that the intention behind this provision is to protect the accused from being prejudicially affected by any dishonest or questionable methods adopted by an overzealous police officer, who may be inclined to misrecord the statements or bring pressure or influence on the witnesses, and also from persons who may be inclined to tell untruths to the police in order to settle scores.

Sections 340 and 344 of the existing CrPC contain provisions relating to perjury. There is an option before the court of sessions or first class magistrate to initiate prosecution for perjury. Under section 340, the court is required to make an inquiry in respect of perjury and file a complaint before the magistrate for prosecution. The offences of perjury are punishable under the provisions of the IPC. The punishment for perjury tried summarily under section 344 of the CrPC is for a term that may extend to three months or a fine up to 500 rupees or both. In case of prosecution under section 340, the punishment is awarded as per provisions of the IPC, which may be up to life imprisonment, depending upon the punishment prescribed for the offence in the trial where such false evidence was tendered.

Proposed amendments
The proposed amendments to the CrPC are based upon the recommendations of the 154th and 178th reports of the Law Commission. In the first it recommended (under the chairmanship of Justice K Jayachandra Reddy) that judicial magistrates record the statements of material witnesses taken during investigation in all cases. Taking the physical and economic constraints in appointment of more magistrates into account, the latter report (under chairmanship of Justice B P Jeevan Reddy) recommended confining such a procedure to cases where punishment was more than 10 years. The Malimath Committee has also recommended such a procedure.

The criterion of a sentence of 10 years or more has been incorporated into the present Bill (clause 15) for the purpose of a judicial magistrate recording a statement. Significantly, the 2003 Bill had proposed a middle path by providing for such a course to offences punishable by a sentence of seven years or more.

Clause 12 of the Bill seeks to add three provisos to CrPC section 161(3). The first would provide for police recording of witness statements with electronic audio-video means. The second would provide that in respect of offences entailing punishment of more than ten years or death, the material witnesses be forwarded to the nearest magistrate for recording statements and that the investigating officer not reduce these witnesses’ statements to writing. The third would provide that where a magistrate has recorded any statement the investigating officer must enclose a copy in his diary.

It also seeks in clause 13 to replace section 162 to provide that any person making a statement to a police officer in the course of an investigation shall, if the statement is reduced into writing, sign it.

The proposed amendments presume that police record statements during investigations truly and honestly. Going by the reputation of the police in India, such a presumption is not justified. Further, no thoughts have been spared for the witnesses who may need protection to be able to testify truthfully and without fear in court.

Clause 14 of the Bill amends the law pertaining to recording of confessions and statements of an accused by a judicial magistrate. It provides that any such confession or statement may also be recorded by audio-video means, i.e. by video conferencing, in the presence of the advocate for the accused person.

A new section (164B) is sought to be inserted requiring the recording of material witnesses’ statements during the investigation of any offence punishable with death or imprisonment for ten years or more by the nearest metropolitan or judicial magistrate (clause 15).

The Bill also seeks through clause 19 to insert a new provision to allow for a witness or any other person on the witness’s behalf to file complaints for threatening or inducing a witness to give false evidence, punishable under IPC section 195A, which was added to the code by the Criminal Law Amendment Act, 2005.

The provisions of law pertaining to trial for perjury are also to be changed via an amendment to section 344 of the CrPC and the inserting of a new section (344A) to provide for summary trial and enhancement of punishment for deposing contrary to the statement recorded by a judicial magistrate (clauses 35 & 36). The amendment provides that punishment for perjury shall not be less than three months but may extend to two years and shall also be liable to a fine.

Critique of amendments
The proposed amendments are based upon half-baked ideas. They tend to put onus on the witnesses alone and ignore the problems in the police. The National Police Commission in its third report said that “fabricating false evidence during investigation of cases and implicating innocent persons or leaving out the guilty persons on mala fide considerations” is one of the major sources of corruption. Yet, the proposed amendments concentrate only on ensuring punishment to the witnesses who deviate from the statements recorded during investigation by a magistrate. Chapter XI of the IPC already deals with offences pertaining to false evidence and offences against public justice. Under this chapter a person may be sentenced up to life imprisonment. The presence of such provisions against public justice has not deterred witnesses from turning hostile.

In reality, the problem of witnesses turning hostile during trial is a result of many faults in India’s collapsing criminal justice system. It thus cannot be addressed by enacting provisions targeting only the witnesses. It must instead ensure that witnesses are provided adequate protection against depredation and inducement held out by powerful accused, and finally, in the case of perjury, that there follows swift and certain punishment without compromising established principles of criminal jurisprudence.

The government has claimed that the amendments are based upon the recommendations contained in the 178th report of the Law Commission of India, though, in reality, the present Bill applies them selectively. It is relevant here to recall the rationale given by the Law Commission for proposing the amendments:

Certain recent happenings, widely reported in the Press, call for introducing measures to ensure that a criminal trial does not end in a fiasco on account of the eye-witnesses or the material witnesses, as the case may be, turning hostile at the trial. At the same time, it is equally imperative that a fair investigation is assured and room for manipulation at the stage of investigation should be eliminated as far as possible. The experience shows that where the accused happens to be rich and/or influential persons or members of mafia gangs, the witnesses very often turn hostile either because of the inducements offered to them or because of the threats given to them or may be on account of promises that may be made to them. To protect public interest and to safeguard the interests of society, measures need to be devised to eliminate, as far as possible, scope for such happenings.

It is clear from the scheme of amendments in the present Bill that it completely omits the recommendations that aim at securing fairness of investigation by putting certain obligations on the investigating officers and take only those portions of the that put a certain onus on the witnesses. In this respect it is relevant to again recall the text of the Law Commission’s 178th report:

Sec.162 Statement to police to be signed: Transmission to Magistrate: Use of statement in evidence:

(1) The statement made by any person to a police officer in the course of an investigation under this chapter shall, if reduced to writing, be signed by the person making it if the person who has given the statement is literate and in case the person is not literate, his thumb impression shall be obtained and in every case, a true copy of the statement shall be furnished to the person who gave the statement, immediately under acknowledgement.

(1A) Every such statement recorded under section 161 shall contain the date and time as to when the statement was recorded and the place where it was recorded, and shall be forthwith forwarded to the Magistrate.

(1B) Any such statement or record thereof or any part of such statement or record whether in a police diary or otherwise, shall not be used for any purpose, save as hereafter provided, at any inquiry or trial in respect of any offence under investigation at the time when such statement was made,

Provided that when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid, any part of his statement, if duly proved, may be used by the accused, and with the permission of the Court, by the prosecution, to contradict such witness in the manner provided by section 145 of the Indian Evidence Act, 1872; and when any part of such statement is so used, any part thereof may also be used in the re-examination of such witness, but for the purpose of explaining any matter referred to in his cross-examination.

By contrast to the Law Commission’s balanced recommendations, the Bill’s whole approach seems intended to empower the police and to treat witnesses as potential suspects who are likely to depart from their statements. Thus the Department Related Standing Committee on Home Affairs in its 111th and 128th reports opposed these provisions.

Some of the major objections to the amendments pertaining to prevention of witnesses turning hostile during trial are as follows:

1. The whole scheme seems to be based upon the assumption that police conduct investigations fairly. It also gives an impression that witnesses in criminal trials are not dependable, they need to be shown a stick to restrain them from departing from their statements as recorded by the police. It completely ignores the fact that police may have padded statements, if not completely fabricated them. It also does not take into account the risks faced by witnesses at the hands of powerful people. There is a complete absence of a credible witness protection programme. The only consolation provided by law to a witness is that threat and inducement have been made a punishable offence. This is completely meaningless in view of the deplorable state of criminal justice in India where rich and powerful people are seldom punished.

2. The provision to make a witness sign the statement made to police is likely to be misused. Police in India enjoy enormous power, both legal and extralegal, which they misuse. There may be times when police officers force witnesses to sign on blank papers. While the Bill contains this amendment, an important safeguard recommended in the 178th report of the Law Commission has been completely ignored. The report had not only considered the issue of witnesses turning hostile; it was also anxious about manipulation of investigation. Therefore, it had suggested that every statement recorded by the police during the course of investigation should contain a date, time and place of recording, but this safeguard has not been included in the proposed amendment.

3. The provision to provide a copy of the statement to the witness who makes it, under acknowledgement, and forward the same to the magistrate empowered to take cognizance is not likely to help. No timeframe has been provided for this purpose. Further, making the witness sign the statement recorded by a police officer during investigation does not add to its evidentiary value. Therefore, no useful purpose is served by making a witness sign such a statement.

4. These proposals expose already vulnerable witnesses to more risks. Using threat of punishment to deter a witness from changing a statement made during investigation without providing adequate protection is dangerous, especially when a case concerns a powerful accused. It is significant that during discussions on the 2003 Bill, the then home secretary in his deposition before the Parliamentary Standing Committee had stated that that prosecution of cases falls through because of false evidence given by the witness, either out of fear or allurement. He admitted that a witness often turns hostile where the accused person is influential or a member of a criminal gang. According to him, the 2003 Bill was aimed at checking “the propensity amongst influential people/criminals/ gangsters to influence the witness to change his statement”. After considering these arguments, the Standing Committee on Home Affairs in its 111th report had recommended formulation of a scheme of witness protection. Despite this recommendation, and experiences worldwide, no scheme for witness protection has been formulated and the same provisions are being pushed through again in the present Bill, which does not go far enough in addressing these concerns with the mere provision of complaint against a person threatening or inducing any witness to commit perjury.

5. The amendment providing for punishment to any witness whose statement was recorded before a judicial magistrate and who deviates from the statement during trial is completely misconceived. Firstly, it lacks the criminal intent required for punishment. Secondly, it does not consider which of the two inconsistent statements may have in fact been the result of threat or allurement.

6. There is no yardstick for judging who is a “material” witness and who is not. The amendments will allow police wide discretion in deciding who is and who is not, for the purpose of forwarding or not forwarding witnesses to judicial magistrates for mandatory recording of statements in cases with a punishment of ten years or more. Such discretion shall further increase corruption.

7. The proposals detailed in the Bill do nothing to deal with the possibility of police tampering with investigations such as by planting false witnesses, forging statements, and forcing or inducing witnesses to make false statements during investigations.

8. Investigation of serious offences requires secrecy. The mandatory recording of “material” witnesses in such cases may frustrate investigation and help criminals to flee from justice.

9. No thought has been spared for the magistrates, who are already overburdened. Mandatory recording of “material” witness statements in cases involving sentences of ten years or more will increase their burden and thereby exacerbate judicial delays. On 11 March 2006, the then Chief Justice of India, Justice Y K Sabharwal, succinctly put his opinion on this issue in the following words at the inauguration of the joint conference of chief justices and chief ministers:

In the wake of recent outcry in media over what has been perceived in certain circles as ‘failure of primary justice’, there are talks of accepting suggestions for criminal law reforms respecting the malaise of hostile witnesses, which were trashed some time ago. There is talk of compulsory recording of statements on oath before magistrates, during investigation, under section 164 CrPC. This will mean a quantum jump in the work of judicial magistracy, which is already overburdened. Any such extra task has to be given with corresponding addition to the manpower.

No significant movement towards providing sufficient judicial officers is visible right now.

10. Provision for recording of statements of witnesses and confessions by the accused with audio-visual means may prejudice the accused. Video conferencing can be manipulated and misused. The provision is also flawed because it does not make clear whether the defence advocate must be present with the accused at the place where he is kept by the police or shall be in the court that records the statement.

11. The provision that a lawyer be present also is bound to be misused as most accused persons in India are poor and not in a position to afford timely legal assistance. The police may put up pliable lawyers for these accused so as to fulfill the legal requirement.

Will deleting summons procedure of trial and restricting adjournments result in speedy trial or speedy conviction?

Chapter XX of the CrPC 1973 contains a procedure relating to the trial of summons cases. Under this procedure, the magistrate states the particulars of the offence to the accused at the beginning of trial and asks him whether he pleads guilty or claims trial. No formal charge is framed until the magistrate informs the accused of the accusation made against him (section 251). The criterion for determining whether a case is a summons case or a warrant case is the punishment provided for an offence. Presently offences entailing punishment up to two years imprisonment are tried as per summons procedure.

Trial in a summons case begins with the reading out of the accusation to the accused, who is asked to enter a plea. If pleading guilty, the magistrate records the plea as nearly as possible in the words of the accused and can then decide whether or not to convict him (section 252). If the accused either does not plead guilty or the magistrate does not convict him despite such a plea, the accused is bound to hear the prosecution and all the evidence adduced by it (sections 253 & 254). After considering all the evidence, the magistrate pronounces judgment (section 255).

Proposed Amendments
Under its clause 22 the Bill seeks to delete summons procedure of trial. It provides that all summons cases shall be tried in a summary manner. Its clause 23 takes away the discretion of the court. The procedure for summary trial too is to be amended, and the requirement for maintaining records pertaining to certain offences omitted (clauses 24 & 25). Clause 25 further proposes to modify the definition of summons and warrants cases so that offences with imprisonment of a term of more than three years will be warrant cases; and if a summons case cannot be tried summarily, the court has to record reasons and try it as a warrant case. Clause 24(9) of the Bill provides that no sentence of imprisonment for a term exceeding six months or fine up to 3000 rupees or both shall be passed in case of any conviction under summary trial procedure.

The only positive change suggested in the Bill on these matters is in its clause 21 relating to trial procedure pertains to evidence for prosecution, which provides that the magistrate shall supply to the accused all the statements of witnesses recorded during investigations by the police.

The CrPC has permitted summary trial procedure in certain cases. In a case tried summarily, no sentence of imprisonment for a term exceeding three months can be passed. The summary trial procedure is same as the summons case procedure except that in every case tried summarily in which the accused does not plead guilty, the magistrate records the substance of the evidence and a judgment containing a brief statement of the reasons for the finding. As such, the record of a summary trial case is very brief (section 263).

Another significant change in law being proposed pertains to the power to postpone or adjourn proceedings. The Bill provides that inquiries or trials in rape cases shall, as far as possible, be completed within a period of two months from the date that the examination of witnesses is commenced.

Under a proposed revision of section 309(2), the court shall not adjourn unless the circumstances are beyond the control of the party seeking adjournment. It further provides that engagement of a lawyer in another court shall not be a ground for adjournment. According to the proposed amendment, where a lawyer is ill or unable to conduct the case for any reason other than being engaged in another court the court shall not grant an adjournment unless satisfied that the party requesting it could not have engaged another pleader in time.

The amendment further seeks through clause 28 to confer express power on the court that in a situation where a witness is present in court but a party or his pleader is not present or though present is not ready to examine or cross-examine the witness, the court may, if it 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.

Critique of amendments
Deleting summons case procedure and subjecting accused persons to summary trial in offences entailing punishment up to three years is a serious attack on the fairness of trial. The proposal has been piloted in the Bill without giving serious thought to the consequences both for the rights of the accused as well as for the society. In fact, the reason the home ministry has cited for such a drastic change in the CrPC clearly shows that fairness of criminal trial is being sacrificed for the sake of reducing pendency in courts. The Parliamentary Standing Committee of Home Affairs in its 128th report enquired after the ministry as to the rationale behind such a drastic proposal. In response, the ministry referred to the following portion of the 154th report of the Law Commission:

A perusal of the two procedures would show that they are somewhat alike in many respects. To ensure speedy trial, the procedure must be simplified so that the bulk of cases which are being handled by the Magistrates can be disposed of more expeditiously. In all the workshops conducted, it was unanimously voiced that the summary procedure is not being adopted and that is one of the reasons for heavy pendency and delay. It is also suggested that all the summons cases and the other offences mentioned under section 260 should be made compulsorily triable by way of summary trial. The survey conducted also shows that there is unanimity about the suggestion to convert all offences carrying punishment up to three years’ imprisonment into summons cases and to make it mandatory that all such offences should be tried summarily.

Unfortunately the government has chosen to adopt this single-dimensional approach to address the complex issue of judicial delays and pendency. It has completely ignored the various recommendations of the Law Commission to increase the judge to population ratio. In fact, it has not seriously addressed even the issue of existing vacancies in judiciary. The Parliamentary Standing Committee on Home Affairs has also indicated this shortcoming in its report on the Bill. The report notes with surprise that the government was trying to alter the basic tenets of criminal jurisprudence, and was not addressing the primary issue of filling up of a large number of vacancies existing in various courts. Currently the number of vacancies against the sanctioned strength in the high courts of India is 111 while in the lower judiciary it is around 2800. In a country of more than a billion people, the total number of judges in high courts is according to the Parliamentary Standing Committee of Home Affairs’ 128th report only 610, while in lower judiciary it is 11,840.

Overall, some of the important objections to these amendments are as follows:

1. Dispensing with summons procedure for the purpose of quick disposal of cases goes against the basic tenets of criminal jurisprudence. It deprives the accused of the benefits and protection of summons procedure trials.

2. Currently there are 153 offences under the IPC that carry a sentence of up to two years’ imprisonment while 58 entail a sentence of up to three years. Since the definition of a summons case in the present Bill has been changed, the number of offences likely to be tried summarily will increase to 211. This change puts many serious offences, including extortion, theft, criminal breach of trust and marital cruelty under summary trial procedure, which would seriously prejudice the interests of society as well as those of the accused persons.

3. Adoption of a summary procedure in the trial of offences entailing punishment up to three years’ imprisonment is not in the interests of justice. The interests of the accused in particular would be seriously jeopardized, as it would be difficult for appellate courts to evaluate appeals against judgments since the evidence recorded under the summary procedure is scanty.

4. The restriction on granting of adjournments is too harsh and goes against the interests of the accused. It would work only in a situation where a sufficient number of judicial officers have been appointed to hold trial day-to-day and conclude a trial within a short time. Currently trial may continue for several years, due to various factors, not only the requests for adjournment of the accused. In India, where the majority of accused are poor, it is too much to expect the accused to engage a new advocate in the event of non-availability of the usual lawyer on the date of hearing. Engaging a single advocate at all is itself a tall order for accused persons. The problem is compounded by the fact that the majority of criminal lawyers work on a large number of small-fee cases simultaneously. Such lawyers have to appear in court for years while receiving only modest intermittent payments.

5. The single most important factor responsible for judicial delays is the lack of sufficient numbers of judicial officers. Therefore, the government must appoint sufficient number of judicial officers before forcing restricting the right of the accused to seek adjournment.

Using technology to sacrifice justice for administrative expediency
Presently the law requires that a person, whether an accused or a witness, must appear before a judicial magistrate if a statement is to be recorded. Similarly, an accused must be produced before the magistrate for extension of his remand in judicial custody.

Proposed amendments
The Bill seeks to amend section 167 of the CrPC relating to procedure when investigation cannot be completed in 24 hours. It amends subsection 2 to provide that a magistrate may extend detention of the accused in judicial custody through video linkage, except for the first time, where the accused must be produced in person. The reason cited for this amendment in clause 16 is to keep police free for other duties.

Another amendment aimed at the use of technology pertains to section 164, which deals with recording of statements or confessions by a judicial magistrate. According to this amendment, in clause 14, the magistrate is empowered to record confessions and statements by video conferencing, and under clause 27 an amendment is also proposed to section 275 to provide for recording of witness statements during trial by the same means.

Critique of amendments
The amendments seriously hit at the rights of the accused in the name of administrative expediency. Use of video linkage to extend remand of the accused in judicial custody and record the statements of witnesses are not a workable proposition in India. Extension of remand via video linkage would promote torture and corruption in jails, as production of accused persons before judicial officers is the best available guarantee against abuse inside India’s jails.

Where an audio-video link is used the authorities may manipulate the medium so that even visible signs of ill treatment on the accused may not be manifest to the judge. Similarly, it may also be manipulated to prevent the accused from communicating with the judge freely. Any person may stand behind the camera and threaten the witness or accused during recording of a statement or confession. Going by the reputation of police in India, this is entirely possible.

Recording of confession of an accused by a judicial magistrate during investigation through video conferencing is entirely inconsistent with the basic principles of criminal jurisprudence in India. Before any confession is recorded, the accused must be produced before the judicial magistrate so that the voluntary nature of the confession is ensured. Thus these amendments must be deleted.
 
A deficient approach to the making of arrest
The fundamental rights guaranteed under the Constitution of India are applicable to arrest and detention as they pertain to the life and liberty of an individual. Article 21 provides that no person shall be deprived of his life or personal liberty except according to procedure established by law. Article 22 guarantees protection against arrest and detention in certain cases. Its subsection 1 provides that no person who is arrested shall be detained in custody without being informed of the grounds of arrest, and shall not be denied the right to consult a legal practitioner of his choice and make a defence. Its subsection 2 guarantees that every person who is arrested and detained in custody shall be produced before the nearest magistrate within twenty-four hours of arrest, excluding the time necessary for the journey from the place of arrest to the court. It further provides that no such person shall be detained in custody beyond this period without the authority of a magistrate.

In tune with these guarantees, provisions have been incorporated in the statutes authorizing arrest and detention, including through section 41 of the CrPC, which broadly categorizes arrests into two categories: arrest under warrant from a court and arrest without warrant. A person can be arrested without warrant where the person:

i. Has been concerned in any cognizable offence, or against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists, of the person’s having been so concerned;

ii. Is in possession, without lawful excuse, of any implement of housebreaking;

iii. Has been proclaimed as an offender;

iv. Is in possession of suspected stolen property;

v. Obstructs a police officer in the execution of duty, or who has escaped, or attempts to escape, from lawful custody;

vi. Is reasonably suspected of being a deserter from any of the armed forces;

vii. Has been concerned in, or against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists of having been concerned in any act committed at any place outside of India which, if committed in India, would have been punishable as an offence, and for which the person is, under any law relating to extradition or otherwise, liable to be apprehended or detained in custody in India;

viii. Being a released convict, commits a breach of any rule relating to address of residence, etc; or a requisition for his arrest has been received from another police officer; or,

ix. Conceals himself in order to commit a cognizable offence or who is a habitual offender.
 
The CrPC also provides in its section 42 that a police officer may arrest a person who refuses to give any name and address or is suspected to have provided a false name and address if such a person commits an offence in his presence for which he cannot be arrested without a warrant from a court. Under this section, even a private citizen can arrest any person who commits a non-bailable and cognizable offence, or who is a proclaimed offender; thereafter the arrested person is required to be handed over to a police officer.

It has been provided that the police officer or other person making the arrest shall actually touch or confine the body of person to be arrested. If the person forcibly resists the arrest or attempts to evade arrest, all means necessary to make the arrest can be used. However, under section 46 the person making the arrest cannot cause death if the person is not accused of an offence punishable with death or life imprisonment. Under section 49 the police officer making the arrest is not permitted to use more restraint than is necessary to prevent the escape of the arrested person. And under section 50 a person arrested without warrant is entitled to know the full particulars of the offence for which the arrest is being made, and the grounds for such arrest. If an arrest for a bailable offence, the police officer is bound to inform the person arrested that there is an entitlement to release on bail and sureties may be arranged for the purpose (sections 56 & 57).

In D K Basu and Another versus State of West Bengal and Others [1997 AIR (SC) 610, 1997 (103) CRLJ 743, 1997 (1) SCC 416] the Supreme Court of India laid down eleven requirements that are to be followed in all cases of arrest or detention till legal provisions are made in that respect:

(1) The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name tags with their designations. The particulars of all such police personnel who handle interrogation of the arrestee must be recorded in a register.

(2) That the police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest and such memo shall be attested by at least one witness, who may either be a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be countersigned by the arrestee and shall contain the time and date of arrest.

(3) A person who has been arrested or detained and is being held in custody in a police station or interrogation center or other lock-up, shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place, unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee.

(4) The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside the district or town through the Legal Aid Organisation in the District and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest.

(5) The person arrested must be made aware of this right to have someone informed of his arrest or detention as soon as he is put under arrest or is detained.

(6) An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of the next friend of the person who has been informed of the arrest and the names and particulars of the police officials in whose custody the arrestee is.

(7) The arrestee should, where he so requests, be also examined at the time of his arrest and major and minor injuries, if any present on his/her body, must be recorded at that time. The “Inspection Memo” must be signed both by the arrestee and the police officer effecting the arrest and its copy provided to the arrestee.

(8) The arrestee should be subjected to medical examination by a trained doctor every 48 hours during his detention in custody by a doctor on the panel of approved doctors appointed by Director, Health Services of the State or Union Territory concerned. Director, Health Services should prepare such a panel for all tehsils and districts as well.

(9) Copies of all the documents including the memo of arrest, refereed to above, should be sent to the Illaqa (area) Magistrate for his record.

(10) The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation.

(11) A police control room should be provided at all district and State headquarters, where information regarding the arrest and the place of custody of the arrestee shall be communicated by the officer causing the arrest, within 12 hours of effecting the arrest and at the police control room it should be displayed on a conspicuous notice board.

The D K Basu judgment further specifies that failure to comply with the above requirements shall not only render the concerned official liable for departmental action but shall also render the official liable to be punished for contempt of court and the proceedings for contempt of court may be instituted in the high court having jurisdiction over the matter. The court made it clear in the judgment that these “requirements are in addition to the constitutional and statutory safeguards and do not detract from various other directions given by the court from time to time in connection with the safeguarding of the rights and dignity of the arrestee”.

The record of compliance with the above guidelines has not been satisfactory. It is an open secret that police routinely flout these requirements, resort to illegal detentions, subject the suspects to torture both as (the only) method of investigation, and also for other purposes including extortion. It is regrettable that no credible monitoring mechanism has been devised for enforcement of compliance to these requirements. It is also relevant to mention that nowhere in India has a punishment for violation of these requirements been reported since their pronouncement in 1996.

Proposed amendments
The Bill seeks to amend the provisions relating to the power of police to arrest without warrant in a cognizable offence, that is, an offence in which a person may be arrested without a warrant from a court. It amends section 41(1)(a) of the CrPC to provide that a person may be arrested if a person commits a cognizable offence in the presence of a police officer. It amends subsection (b) to provide that in cases involving cognizable offences entailing punishment up to seven years imprisonment, a person may be arrested wherever a police officer,

i. Has received credible information and has reason to believe that the person has committed a cognizable offence; or

ii. Is satisfied that such arrest is necessary,

a. To prevent the person from committing any further offence;

b. For proper investigation of the offence;

c. In the interests of safety of the person;

d. To prevent the person from tampering with the evidence;

e. To prevent the person from make threats or inducements to witnesses; or,

f. Because the person’s presence in the court cannot be ensured without arrest.

The amendment provides that the police officer is required to state the reasons for arrest in writing when making the arrest.

In addition, the amendment seeks to add another clause (ba) to section 41 empowering a police officer to arrest a person against whom credible information has been received that the person has committed a cognizable offence entailing punishment of more than seven years or death.

Under clause 5 an amendment is also made in section 41(2) so as to provide that subject to the provisions of section 42 relating to arrest on refusal to give name and residence, no person shall be arrested in a non-cognizable offence except under a warrant or order of a magistrate.

The Bill seeks in its clause 6 to insert new sections 41A, 41B, 41C and 41D. The proposed section 41A provides that in offences involving sentences up to seven years the police officer may, instead of arresting the person concerned, issue a notice requiring the person to appear before the police officer. Where such a notice is issued to any person, it shall be his duty to comply with the terms of the notice. The person shall not be arrested while he continues to comply with the terms of the notice but can be arrested only if the police officer is of the opinion that it is necessary, for reasons to be recorded in writing.

The duties of the police officer making the arrest are laid down in the proposed section 41B. This amendment provides that every police officer while making an arrest shall bear an accurate, visible and clear identification of name to facilitate easy identification. The officer shall prepare a memorandum of arrest to be attested by at least one witness, who is either a member of the family of the person arrested or a respectable member of the locality where the arrest is made, and the person arrested shall countersign the memorandum. The amendment further provides that where arrest is made in the absence of such a witness, the officer shall inform the arrested person that he has a right to have a relative or friend informed of his arrest.

The proposed Section 41C provides for the state governments to establish a police control room in every district where the names and addresses of the persons arrested, and names and designations of the arresting officers are to be displayed on a notice board. The amendment further provides for establishment of a control room at state police headquarters to collect details about the persons arrested and nature of offences with which they have been charged, and maintain a database for information of the general public.

The proposed section 41D provides for the right of the arrested person to meet an advocate of choice during interrogation, though not throughout interrogation.

The Bill further seeks to amend the procedure of arrest by adding a proviso to section 46 of the CrPC that where a woman is to be arrested, unless the circumstances otherwise require or unless the police officer is a female, the police officer shall not touch the woman (clause 7). It makes it obligatory for the arrested person to be examined by a registered medical practitioner soon after the arrest is made. It also provides 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 registered medical practitioner (clause 8). A new provision, section 55A, would also make it obligatory for the custodian of the accused to take reasonable care of the health and safety of the accused (clause 9).

Finally, a section is to be added through clause 10 to prohibit arrest except in accordance with the CrPC or any other law in force at the time.

Critique of amendments
Abuse of power to arrest is a major problem in India. The National Police Commission in its third report mentioned that

[The] major portion of the arrests were connected with very minor prosecutions and cannot, therefore, be regarded as quite necessary from the point of view of crime prevention. Continued detention in jail of the persons so arrested has also meant avoidable expenditure on their maintenance. In the above period it was estimated that 43.2 per cent of the expenditure in the connected jails was over such prisoners only who in the ultimate analysis need not have been arrested at all.

In light of the experience of police behaviour in India, the amendments providing for notice procedure in place of arrest in the offences entailing punishment up to seven years imprisonment are welcome. It is hoped that such a provision shall help reduce unnecessary judicial work in dealing with anticipatory bail and regular bail applications. The discretion given to the police for making arrests in appropriate cases is also necessary for effective investigation and prosecution.

However, there are certain deficiencies here that need to be corrected before passage of the Bill. The provision allowing detention of a person in custody in the interest of the person’s own safety should be dropped. In fact, the government has through the 128th Report of the Department-related Parliamentary Standing Committee on Home Affairs already undertaken to delete this provision. 

Another major deficiency relates to the non-incorporation of certain requirements specified by the Supreme Court in the D K Basu judgment, specifically the

1. Recording of the particulars of all police personnel who handle interrogation of the arrestee in a register;

2. Time limit of 8-12 hours for communicating the arrest of a person and place of detention, along with the name of the custodian officer;

3. Subjecting of the arrestee to a medical examination every 48 hours during detention in custody, by a doctor on the panel of approved doctors appointed by the director of health services of the state or union territory concerned. (The Bill specifies that any registered medical practitioner can perform the examination.)

4. Sending all the documents, including the memo of arrest, to the area magistrate for keeping on record.

5. Absence of a 12-hour time limit for displaying at control rooms at all district and state headquarters the information regarding the arrest and place of custody of arrestees.

The government must consider incorporation of the above provisions in the appropriate clauses of the Bill. It also must consider and incorporate provisions on the consequences of non-compliance with the terms governing arrest. The government must specify the consequences of making an arrest in violation of the provisions of law: both for the accused and the police officer making the arrest.

A step in the right direction for victims’ rights
The legal rights of a victim under the prevailing law in India are very limited, especially in cases of cognizable offences, where the criminal case is instituted on a police report and prosecuted by the state. At trial, the public prosecutor represents the state and there are no express provisions in the CrPC at present to provide for the victim’s participation in the trial. In the investigation and prosecution of such cases, the status of the victim is that of witness. The victim has no right to participate or intervene in the trial; not even the right to oppose a bail application moved by an accused. The victim can move for cancellation of bail granted to an accused; however, the principles governing the cancellation of bail are entirely different from those considered for granting of bail.

In cases instituted on a police report, the only substantive right granted to a victim under the existing criminal justice system is the right to compound certain offences under section 320 of the CrPC. The Section provides two lists of offences: one of offences compoundable without the permission of the court, the other of offences compoundable with its permission.

Victims also have no right to appeal adverse judgments by trial courts in cases instituted on police reports; they can only move for revision. Revision under the existing law in India is very limited in nature. A court exercising revisionary jurisdiction has no power to reappraise the evidence and convert a finding of acquittal into conviction. Such a court can merely order a retrial if it finds that there are material irregularities in the order or judgment.

Victims’ compensation is little more than a token gesture rather than substantial relief. However, under section 357 the court may order that the whole or part of the fine imposed on a convicted party to be paid to the victim. In non-cognizable cases, the court may also order a convicted party to pay the complainant all or part of the cost incurred by him in the prosecution, in addition to the penalty imposed upon him. Where the convicted party defaults on the payment the court may, under section 359, order the convicted to suffer simple imprisonment for a period not exceeding thirty days.

Proposed amendments
The amending Bill seeks to insert through its clause 2 a new provision defining a victim as “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”.

Clause 3 provides for the court to permit the victim to engage an advocate of choice “to co-ordinate with the prosecution” in consultation with the concerned government. This is proposed as a proviso to section 24 of the CrPC, which relates to appointment of public prosecutors.

The law relating to appeals is also to be amended by providing in clause 38 that “the victim shall have a right to prefer an appeal against any order passed by the Court acquitting the accused or convicting for a lesser offence or imposing inadequate compensation, and such appeal shall lie to the Court to which an appeal ordinarily lies against the order of conviction of such Court”.

Critique of amendments
These amendments are likely to have a positive effect on the criminal justice system. Providing the victim with right of appeal against any order of the court is an important advance. However, the amendment with regard to a victim’s participation in trial by engaging an advocate of choice is not very clear. It does not specify the role of such an advocate except to “co-ordinate with the public prosecutor”. Further, the requirement for consultation by the court with the concerned government before allowing the victim to engage an advocate is unnecessary and burdensome. It needs to be deleted.

The provision in clause 37 for preparation of a victim compensation scheme for the purpose of compensating the victim or dependants who have suffered loss or injury as a result of the crime is also welcome. Such a scheme, if formulated and implemented properly, will address a longstanding lacuna in India’s criminal justice system. However, the scheme’s contours are not very clear, and its formulation and implementation is still to be seen.

Recommendations
In light of the foregoing discussion, it may be concluded that many provisions of the Code of Criminal Procedure (Amendment) Bill, 2006, severely affect settled principles of criminal jurisprudence. These provisions will only hasten the collapse of India’s already collapsing criminal justice system. However, since others are both desirable and welcome, the entire Bill does not deserve scrapping. Instead, the government must consider the following:

1. The provisions contained in clause 2 amending the definition of a “summons-case” and “warrant-case” must be deleted as it makes all the summons cases triable summarily.

2. Clause 3 should be amended to remove the requirement of consultation with the concerned government before permitting a victim to engage an advocate of choice to coordinate with the prosecution.

3. Clause 5 should be amended to drop the provision empowering a police officer to arrest a person for the person’s own safety.

4. The Bill should be suitably amended to include the omitted requirements laid down in the D K Basu judgment as outlined above, and so that it specify the consequences of making an arrest in violation of the provisions of law.

5. The provisions ostensibly aimed at dealing with the problem of witnesses turning hostile in clauses 12, 13, 14, and 15 must be deleted. Accordingly, clauses 35 and 36 seeking to amend section 344 relating to summary procedure for trial of witnesses deviating from the statement recorded during investigation before a magistrate must be deleted. The government must formulate a credible witness protection programme before bringing such a drastic provision onto the statute book.

6. The provision enabling a judicial magistrate to extend remand of an accused in judicial custody through the medium of video linkage contained in clause 16 must be deleted.

7. Clause 22 seeking to delete the summons procedure of trial must be dropped. Accordingly, clause 23 providing that all summons cases shall be tried summarily as also clauses 24, 25 and 26 laying procedure and requirements in a summary trial must be deleted.

8. Clause 27 providing for recording of evidence during trial by a magistrate in a warrant case by electronic audio-video means, i.e. by video conferencing, must be deleted.

9. The provisions specifying the circumstances in which the court shall not grant adjournment as contained in clause 28 must be deleted.

Posted on 2008-07-01

Asian Legal Resource Centre
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