Wiring the Code of Criminal Procedure: A Brief Perusal of the 2008 Amendment Act

WIRING THE CODE OF CRIMINAL PROCEDURE: A CRITICAL APPRAISAL OF THE

2008 AMENDMENT ACT
1
SUSHANT

This amendment in Code of Criminal Procedure was long awaited. The silhouette of hope has brought
changes in the deemed-arbitrary provisions of the code guarding inordinate delay and unethical attitude of
police. The Amendment act manifests the two fold objective of curbing the delay in the legal proceedings
and keeping a check upon the unguided romantic approach of the Indian police. The parabolic shift since
the unfolding of the British-Raj shackles in India has revolutionized every nook and corner of the society
but for the approach of the Indian police. It is weird to notice that globalization has given a midas touch to
the Indian society except the powers enjoyed by the police which continues to be the same as enjoyed
during the time of the English whose basic tenet comprises torture, instilling fear in the public, extortion
and custodial deaths. One of the objectives incidental to that of the main one, suggests the projected
optimistic efforts by the government to shed the negative image of the Indian police.2These amendments
will put an end to arbitrary arrests, detentions, torture, extortion and even custodial deaths which will
instill a sense of confidence in the common masses and also in ameliorating fear from their minds.

The amendment proposes an incumbent duty on the part of the police officials to serve the
offender with a notice of appearance if the punishment for offence committed by him is either less than 7
years or extends up to 7 years. However serving of notice could be relinquished under certain exceptional
circumstances and the police officer can directly go ahead with the arrest, which is provided under the act
itself. These stipulations are given hereinafter:

1. If the offender has committed a cognizable offence in the presence of a police officer.3
2. Where either by way of (i) reasonable complaint or (ii) credible information or (iii) a reasonable
suspicion exists that he has committed a cognizable offence punishable with a term of less than 7
years or up to 7 years then arrest could materialize.4 But there are certain ingredients encapsulated
under this section which are to be read co-extensively with it, in order to give effect to the
aforesaid provision. It again imposes a duty on the police officer to be satiated with the reasons of
arrest wherein non arrest and notice of appearance may prejudice the interest of justice. Thus S.
41 (ii) provides for certain objective criterions for the satisfaction of the police necessitating
arrest which are given hereinafter :
a. Arrest could be made to prevent such person from committing any further offence;5 or
b. for proper investigation of the offence;6 or

1
4th year law student at Gujarat National Law University
2
Code of Criminal Procedure Amendment Will Reduce Arrests of Innocent People,
http://www.chalo.net/Opinion/CrPC_Amendment_Will_Reduce_Arrests_of_Innocent_People, visited 23rd March, 2009.
3
Section 41(i) (a) of the Code of Criminal Procedure Amendment Act, 2008
4
Section 41(i) (b) of the Code of Criminal Procedure Amendment Act, 2008
5
Section 41 (ii) (a) of the Code of Criminal Procedure Amendment Act, 2008
6
Section 41 (ii) (b) of the Code of Criminal Procedure Amendment Act, 2008

Page 1
 Wiring the Code of Criminal Procedure: A Brief Perusal of the 2008 Amendment Act

c. to prevent such person from causing the evidence of the offence to disappear or tampering with
such evidence in any manner;7 or
d. to prevent such person from making any inducement, threat or promise to any person acquainted
with the facts of the case so as to dissuade him from disclosing such facts to the Court or to the
police officer;8 or
But one reasonable question emanating out of the bare perusal of the aforesaid provision is the possibility
of its abuse by the police officials. Thus, such possibility has been checked by the section itself which
provides that whenever a police official shall effectuate arrest in pursuance of the reasons mentioned
aforesaid then he has to mention the reasons of arrest in writing9 which shall comprise the record of
police. This is complimented by Section 41C (3) of the amendment act which provides that:

‘The control room at the Police Headquarters at the State level shall collect from time to time, details about the
persons arrested, nature of the offence with which they are charged and maintain a database for the information of the
general public.’

The act further imposes certain other obligations to be fulfilled at the time of effecting arrest.10 Further
where the situation is not that grave, there the police official must serve a notice of appearance upon the
offender11 and it is a statutory obligation on the part of the offender to comply with the mandates of the
notice12 wherein non-compliance would ensue into effectuation of arrest of the offender.13

Another salient feature of the Amendment act is an effort to plug the loopholes pertaining to
procurement of adjournments by the lawyers. Proviso to section 309 (b) (2) provides that the adjournment
shall neither be granted at the request of a party except where the circumstances are beyond the control of
the party nor will it be granted when the pleader of the party is engaged in another court. Further it
provides that if the witness is present in the court and the party of the pleader is either absent or is not
aptly wired to cross-examine the witness then the court may record the statement of the witness and pass
such order as it thinks fit dispensing with the examination in chief or cross-examination of the witness.

To throw some light on the negative aspects of the amendment act, it can be mooted that the
amendment gives ample discretion to the Police officials to subject one person to a notice of appearance
while subjecting another identically situated person to arrest.14 At the same time the potential offenders
will get emboldened to commit crime as most of the crimes are punishable with less than 7 years of

7
Section 41 (ii) (c) of the Code of Criminal Procedure Amendment Act, 2008
8
Section 41 (ii) (d) of the Code of Criminal Procedure Amendment Act, 2008
9
Section 41(ii) (e) of the Code of Criminal Procedure Amendment Act, 2008
10
Section 41B. Every police officer while making an arrest shall—(a) bear an accurate, visible and clear identification of his
name which will facilitate easy identification; (b) prepare a memorandum of arrest which shall be— (i) attested by at least one
witness, who is a member of the family of the person arrested or a respectable member of the locality where the arrest is made;
(ii) countersigned by the person arrested; and (c) inform the person arrested, unless the memorandum is attested by a member of
his family, that he has a right to have a relative or a friend named by
him to be informed of his arrest.
11
Section 41 A (1) of the Code of Criminal Procedure Amendment Act, 2008
12
Section 41 A (2) of the Code of Criminal Procedure Amendment Act, 2008
13
Section 41 A (4) of the Code of Criminal Procedure Amendment Act, 2008
14
V. Sithannan, Are the recent amendments to the Cr.P.C in India necessary and justified?, http://blog.jeywin.com/?p=30, last
visited 23rd March, 2009

Page 2
 Wiring the Code of Criminal Procedure: A Brief Perusal of the 2008 Amendment Act

punishment and the proposal to serve a notice of appearance fails to supplant deterrence.15 But despite of
such incidental lacunae it is humbly submitted that the instant amendment act has with dexterity tamed
the unruly horse driven by the Indian police and lawyers. Perhaps for its vociferous concerns expressed in
lieu of public plight, this act will be remembered in the years to come.

15
Id.

Page 3