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.
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.
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.
new Amendment Bill
to restrict power of Police
to make ARREST.
CrPC Amendment Bill, 2010
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