This new Amendment Bill owes its existence to certain provisions of The Code of Criminal Procedure (Amendment) Act, 2008 which were vehemently opposed by lawyers in India.
As enumerated earlier, except for Sections 5, 6 and 21(b), the CrPC Amendment Act 2008 had come into force on 31st December, 2009. There are media reports which claim that lawyers feared suffering loss of business since there wouldn’t be many cases seeking bail if power of police to make arrests was curtailed.A reading of the Statement of Objects and Reasons for the new Bill (Code of Criminal Procedure Amendment Bill, 2010) lends clarity to the process followed by government when it faced opposition to the CrPC Amendment Act, 2008 :
STATEMENT OF OBJECTS AND REASONS
In the light of objections from certain quarters to certain provisions of the Code of Criminal Procedure (Amendment) Act, 2008, the said Act could not be brought into force. These provisions, inter alia, relate to the power of the police to arrest without warrant. A reference in the matter was made to the Law Commission of India to take the initiative to bring about a consensus on the issues. The Law Commission discussed the issues with all concerned including the Chairperson(s) of some of the Bar Councils and the Chairman of the Bar Council of India. After holding consultations, the Law Commission recommended further amendment in the provisions of amended section 41 of the aforesaid Act to make it compulsory for the police to record the reasons for making an arrest as well for not making an arrest in respect of a cognizable offence for which the maximum punishment is up to seven years. The Law Commission also suggested further changes in the newly inserted section 41A of the Code of Criminal Procedure Act, 1973 (inserted by Act 5 of 2009) to make it compulsory for the police to issue a notice in all such cases where arrest is not required to be made under clause (b) of sub-section (1) of the amended section 41. It was also suggested that the unwillingness of a person who has not been arrested to identify himself and to whom a notice has been issued under the aforesaid section 41A could be a ground for his arrest. It has been decided to accept the suggestions of the Law Commission of India and to amend the Code of Criminal Procedure Act, 1973 as amended by the Code of Criminal Procedure (Amendment) Act, 2008.Amendments proposed by CrPC Amendment Bill, 2010
2. The Bill seeks to achieve the above objectives.
To gain a better understanding of what the Bill seeks to amend, it is important to read CrPC Amendment Bill, 2010 with CrPC Amendment Act, 2008. At this juncture it is also important to understand that the Code of Criminal Procedure, 1973 stands amended by CrPC Amendment Act, 2008, though amendments through Section 5, 6 and 21(b) are still not in force.
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Through CrPC Amendment Bill, 2010 the Government now proposes to make further amendments so as to bring into force Section 5 and Section 6 of CrPC Amendment Act, 2008. These provisions relate to Power of Police to make Arrest and Issue of Notice of Appearance by Police.
3 major amendments are proposed as enumerated in The Code of Criminal Procedure Amendment Bill, 2010. Briefly, the amendments are :
1) 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.
2) To substitute the word “may” in Section 41A by the word “shall”;
3) To add a proviso in Section 41A, whereby Police could arrest a person if he fails to comply with the terms of notice or is unwilling to identify himself during issuance of a notice of appearance by the Police.
Impact of Amendments, if enacted(a) This amendment sounds a death knell on the arbitrariness of police to make arrests. The very fact that reasons shall have to be recorded in writing fixes responsibility and makes the Police Officer accountable for justifying the arrest. Recording an arbitrary reason would be difficult, since it would need to be substantiated and will also be open to judicial scrutiny. As a matter of fact, to have power to make an arrest is one thing, but to justify that arrest is something completely different. And it is precisely this gap which the amendment seeks to bridge.
(b) The amendment lays considerable stress on the importance of investigation before an arrest is made or not made. Which further means that the officer must be convinced about the bonafides of the case. A mere complaint would not be enough to exercise the power of arrest.
(c) Insertion of Section 41A, pertaining to issue of Notice of Appearance, is in line with the Right to Life and Liberty of Indian citizens. It would also help bring down the number of arrests, which in turn would decongest the crowded Indian jails. Simultaneously, the innocents too can feel secure in case they stand a chance of exposure to implication in false cases.
(d) System of Administration of Law and Justice would become more transparent. The amended CrPC Act together with the Right to Information Act (RTI) would be able to inject necessary checks and balances in the Process of Administration of Law in India. But then, a lot depends on how awakened the citizens are to their Right to Information.
Government strives to protect innocentsPerhaps after a long time one sees the Indian Government determined to bring about policy changes whereby innocents could be protected in its quest to apprehend the guilty. What seemed like succumbing to pressures from lawyers’ community has actually turned out a better methodology to reaching consensus. Mr. Chidambaram’s initiative and Law Commission’s efforts sure deserve appreciation.
What now remains to be seen is the reaction from legal fraternity. Not to forget the women NGOs, for the Amendment Bill still proposes a curb on unjustified arrests while restricting the power of police to make arrests.
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