Code of Criminal Procedure (Amendment) Act, 2008 enforced

Latest Update: The Power of Police to make Arrests stands restricted w.e.f. 2nd November 2010. The Central Government vide Notification No. SO 2689 (E) dated 1st November 2010 has brought into force the provisions of Code of Criminal Procedure (Amendment) Act, 2010.

The Code of Criminal Procedure (Amendment) Act, 2008 has come into force with effect from 31st December, 2009.  But 3 sections (5, 6 and 21b) of the said Act are still not in force. These provisions relate to power of police to make arrests and power of the court to grant or refuse adjournment of cases.

The Gazette of India Extraordinary [PART II-Section3-Sub-section(ii)] dated 30th December, 2009 through a Notification by Ministry of Home Affairs says:

In exercise of the powers conferred by sub-section (2) of Section 1 of the Code of Criminal Procedure (Amendment) Act, 2008 (5 of 2009), the Central Government hereby appoints the 31st day of December, 2009, as the date on which the provisions of the said Act, except Section 5, Section 6 and clause (b) of  Section 21, shall come into force.

Lets take a look at how this notification happened and what led the Government to drop the 3  sections from becoming effective.

Background

The Code of Criminal Procedure (Amendment) Bill, 2008, after receiving President’s assent on 7th January 2009, was published in the Gazette of India on 9th January 2009, Pt.II.S.1 Ext.P.1 (No.6).


Originally introduced as Criminal Procedure Amendment Bill 2006, it took almost 3 years for the Indian government to notify it as The Code of Criminal Procedure (Amendment) Act, 2008 (Act 5 of 2009). And that too after several deliberations which included recommendations from Parliamentary Standing Committee on Home Affairs, Law Commission of India, Justice Malimath Committee, guidelines by Supreme Court of India, Criminal Justice System Policy and numerous representations from legal luminaries, NGOs and citizens of India.

Government undecided on Implementation of Act

   To begin with, the date of coming into force was not specified during notification in the Gazette of India on 9th January, 2009. Section 1(2) clearly said :

It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint; and different dates may be appointed for different provisions of this Act.”

  Secondly, the government yielded to strikes and widespread agitation by lawyers and Bar Councils, including opposition from the Supreme Court Bar Association. Instead of focusing on how best a conducive environment for administration of amended Act could be created, the government directed all efforts to pacify the lawyers. The Times of India reported:

The decision (not to notify the date of implementation of the Act) came in the wake of objections to the provision (Section 41A of the Act) raised by lawyers’ associations who were widely seen as guided by the fear that the amendment would result in reduced business for them.

  There were voices of protest from women’s groups as well :

Provisions of Section 41A met with opposition from women’s groups as well. They argued that even the implementation of Protection of Domestic Violence Act would be under a cloud with the police unable to arrest husbands and in-laws on complaints of women. Their contention was that doing away with the mandatory arrest provisions would increase the incidence of crime, as people will no longer fear arrest.

Reasons for protest/ opposition :

(a)  The Amendment Act was seeking to drastically curtail the power of police to make arrests, thereby preventing any abuse of power. (Section 41A)

(b)  It also aimed at imposing strict conditions on adjournment of cases in courts. (Section 309)

Who was to benefit from amendments ?

Undoubtedly, both provisions were for the benefit of innocents, as also to reduce the unnecessary burden on prisons, to speed up the trial and reduce pendency in courts.

Take a look at what Times of India quoted in one of its news reports :

It isn’t a strike on principle and policy,” says senior lawyer Kamini Jaiswal, referring to Wednesday’s protest. She said it was the loss of clients due to less bail pleas that was causing heartburn to most district lawyers, “Litigant had nothing to do with the amendment but it is he who suffers the most because of such strikes. Even when SC has termed strike as `gross misconduct’ lawyers resort to it, this is extremely unfortunate. If we take a fee we are dutybound to provide legal service to our clients,” she said.

While the bar associations claim the amendment will lead to increase in crimes like kidnapping, stabbing, forgery etc, lawyers like Ashok Arora see nothing wrong in the amendment, concluding it will in fact “help administration of justice”. He added, “Whether bail matters will be reduced or not shouldn’t be concern of any profession. As lawyers our aim should be to help in administration of justice.”

Even the judges, speaking on condition of anonymity, maintained the bar striking work at the drop of a hat on every issue was unacceptable. “In district courts, many lawyers are dependent on fighting cases for anticipatory or interim bail. Therefore this amendment has left them fuming,” added an HC judge familiar with the workings of lower courts.”

How was the impasse/ situation resolved ?

In a bid to break the stalemate, Government referred the matter to Law Commission of India so as to arrive at a consensus.

What did Law Commission do ?

Accordingly, the Law Commission held meeting with the stake-holders and gave following major submissions to the Ministry of Home Affairs:

1)  To immediately implement the notified Code of Criminal Procedure Amendment Act 2008.

2)  To substitute the word “may” in Section 41A by the word “shall”;

3)  To make the police officer duty bound to not only record his reasons for making an arrest, but also for not making an arrest under Section 41.

4)  To add a proviso in Section 41A, whereby Police could arrest a person if he is unwilling to identify himself during issuance of a notice of appearance by the Police.

Implementation

Except for Sections 5, 6 and 21(b) the Code of Criminal Procedure (Amendment) Act, 2008 was finally brought into force by the Government of India on 31st December, 2009.

These 3 were significant amendments to CrPC, but the government thought it fit not to implement them in their current form. This is what the notification by Ministry of Home Affairs said:

Three provisions are not being notified for the present. These are Sections 5, 6 and 21(b) of the Amendment Act. They relate to the power of a police officer to make an arrest and the power of the Court to grant or refuse adjournments. Representations were received against these provisions. Hence, they were referred to the Law Commission. The Law Commission held consultations and submitted its report. On the basis of the report an Amendment Bill has been approved by the Cabinet. It could not be introduced in the last session of the Parliament and will be introduced in the Budget Session. Pending the passage of the Amendment Bill and pending a debate in Parliament, it has been decided not to notify these three provisions for the present.

Which means that new provisions related to Arrests and Adjournment of cases are still not in force. The Law related to Arrests and Adjournment of cases in courts remains as it was earlier.

This notification by Ministry of Home Affairs also means that a new Amendment Bill on Sections 5, 6 and 21(b) will be introduced in the budget session of Parliament beginning from 22nd February, 2010. Whether it would include or exclude some more provisions remains to be seen. Not to forget the time it would take to be notified.

Future uncertain yet promising

Until the yet to be tabled Amendment Bill becomes an Act it would be futile to conjecture on what lies ahead for the 3 ineffective sections of CrPC Amendment Act, 2008.

Although a beginning has been made, but a lot more needs to be done when it comes to Legal Reforms. These Reforms alone would lay the foundation for rooting out corrupt forces from Administration of Law & Justice. One can only hope that the government takes a bold stance to protect innocent citizens in its quest to apprehend the criminals.

Next…
Government introduces
new Amendment Bill
to restrict power of Police
to make ARREST.

CrPC Amendment Bill, 2010
Related Reading

The Code of Criminal Procedure (Amendment) Act, 2008
Act becomes Law when notified in Gazette of India
Sec 125 CrPC & Welfare of Senior Citizens Act
Judgments – Section 125 CrPC – Maintenance of Parents
The Maintenance and Welfare of Parents and Senior Citizens Act, 2007
›  The Commercial Division of High Courts Bill, 2009

Also Read

Centre set to enforce criminal code reforms
Changes to CrPC half-baked: Lok Ayukta judge
Changes in CrPC likely to ease situation in overcrowded Tihar
Lawyers’ strike paralyses Delhi’s district courts
Advocates stage protest opposing amendments to Cr.P.C

Comments

  1. Thanks for the Great analysis. That means Arrest will continue more Ruchikas will suicide and Lawyer’s Bail business will flourish.

  2. Rajesh Kumar says:

    Compensate the innocent persons accused, arrested in crime.
    Indian criminal law system is a mockery of justice where some person is arrested/accused of a crime, his life is wasted and after 20 years pronounced innocent. He, his family, his children suffers; but it is no consequence to the society. The society does not want to address this problem.
    It is no surprise the people are loosing their faith in law, criminals are winning elections, they are treated as heroes, they dispense justice etc.

  3. thanx for presenting a good debate.this articale is very informative to all. but most of us are in doubt whether the sections under amendment act 2005 and 2006 which were not came in to force so far were also included in act 5 of 2009 and wheter they r also came into force from 3oth dec 2009. then what is the status of 324 ipc. whether bailable or not. pls discuss

  4. By not amending One main law of Arrest of person without investigations,the agony of In-laws will continue due to abuse by the police. Wives who take undue advantages of wife-centric biased laws like 498-A, D.V Acts, should be imprisoned. Such draconian laws have destroyed the very fabric of our Family Harmony which existed about a decade ago. Our country is going to dogs & we are no longer living in a Democratic country, but a Hypocratic Country, where the only principle is To The Wife, By The Wife & For The Wife. The judiciary & the Police have made a mockery of our country. The Anti-Dowry Laws which was enacted for the betterment of our society has become an easy tool in the hands of our so called liberated wives. A little dispute between the spouses or a Marital Discord eventually ends up in filing up of false 498-A cases. Such is the irony that in spite of Supreme Court, the Chief Justice of India literally telling that Marital Dispute is not a Crime but a family matter. The Apex Court has even said that Filing false cases of 498-A has become a Legal Terrorism in our country in the last 7-8 years & families after families have lost their peace & harmony. Around 98% cases have proved to be false. But still no provisions/steps are being taken to amend such laws & make it unbiased.

  5. Y.SRINIVASA RAO says:

    What is the status of Act 25 of 2005 as to section 324 of IPC? Whether Act 25 of 2005 is also considered in Act 5 of 2009? If notification has been filed as to Act 5 of 2009, it may be published here to know it. several persons are in paucity to know whether sec 324 of IPC is bailable or non-bailable after 31st Dec,2009. plz, it may be discussed.

    • @ Y. Srinivasa Rao

      Section 42 sub-section (f)(iii) of Code of Criminal Procedure (Amendment) Act, 2005 (No. 25 of 2005) says :

      42. Amendment of the First Schedule.-In the First Schedule to the principal Act, under the heading “I.-OFFENCES UNDER THE INDIAN PENAL CODE”,-
      …………
      (f) in the 5th column, in the entries relating to-
      ……..
      (iii) section 324, for the word “Ditto”, the word “Non-bailable” shall be substituted;
      ………….

      This Amendment was followed by a Notification dated 21st June, 2006 in the Gazette of India :

      MINISTRY OF HOME AFFAIRS
      Notification
      New Delhi, the 21st June, 2006

      S. O. 923(E).- In exercise of the powers conferred by sub-section (2) of section 1 of the Code of Criminal Procedure (Amendment) Act, 2005 (No. 25 of 2005), the Central Government hereby appoints the 23rd June, 2006, as the date on which the provisions of the said Act, except the provisions of Sections 16, 25, 28(a), 28(b), 38, 42(a), 42(b) 42(f) (iii) and (iv) and 44(a), shall come into force.

      [F. No. 2/5/90-Judl Cell (Vol VIII)]
      Dr. P. K. SETH, Jt. Secy.

      The Notification clearly says that Section 42(f)(iii) of CrPC Amendment Act, 2005 is excluded and therefore NOT enforced. Which means that Section 324 of Indian Penal Code (IPC) continues to be a bailable offence as it was earlier.

  6. Niladri Shekhar Das says:

    By Notification no SO 2689 (E) dated 1.11.2010, the Central Government has appointed the 2nd day of November 2010, as the date from which the Act shall come into force.

  7. Siba Prasad Samantaray says:

    I have heard that these three sections have been brought into force w.e.f. 2nd Nov 2010. Is is true? And I was arrested on 4th Nov 2010 for being implicated in a false 498A dowry torture case without any investigation. Please let me know if these sections have been in force since 01-11-2010 and being a PSU employee, I am languishing after suspension. Please let me know of any SC/HC ruling or judgement directing employers not to take action against employees until proved guilty in 498A cases.Please help

  8. Saad Shibli says:

    police should not arrest any person in any crime case except on magistrate order and magistrate should satisfied with proof of complainant produce by him. therefore on any complaint, nominated accused should allow bail before issuing warrant of arrest by magistrate. this rule should not apply in murder and dacoity cases. this process allow every one to face trial with out harassment

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