30 Most Recent Amendments to the Code of Criminal Procedure, 1973

30 Most Recent Amendments to the Code of Criminal Procedure, 1973 are given below:

The Code of Criminal Procedure (Amendment) Act, 2008, has brought about sweeping changes in the provisions of the Criminal Procedure Code, 1973 (“the Code”). The Bill was passed by the Lok Sabha on 18-12-2008 and by the Rajya Sabha on 23-12-2008. The most important of these amendments are given below in brief.

1. A definition of the term “victim’ has been added as S. 2 (wa) of the Code, as under:

“Victim” means 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.”

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2. S. 24(8) of the Code has been amended to provide that the court may permit the victim to engage an advocate of his choice to assist the prosecution under S. 24(8) of the Code.

3. S. 26 of the Code has been amended to provide that offences under S. 37,6 and Ss. 376A to 376D of the Indian Penal Code shall be tried, as far as practicable, by a court presided over by a woman.

4. S. 41 of the Code has been amended to provide that a police officer must exercise the power of arrest after reasonable care and justification and only if such arrest is necessary and required under S. 41 of the Code. It is specifically laid down that if such an arrest is for a cognizable offence which is punishable with imprisonment for a term of seven years or less, the following conditions should be satisfied, namely,

(i) The police officer must have reason to believe that such a person has committed that offence; and

(ii) The police officer must be satisfied that the arrest is necessary:

(a) To prevent such a person from committing any further offence; or

(b) For proper investigation of the offence; or

(c) To prevent such a person from tampering with the evidence or causing such evidence to disappear; or

(d) To prevent such a 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 a police officer; or

(e) Unless such a person is arrested, his presence in the court, whenever required, cannot be ensured.

It is also mandatory for the police officer, when making the arrest, to record his reasons for doing so in writing.

5. A new section, S. 41-A, has been inserted, under which, where the arrest of a person is not required under S. 41(1) of the Code, the police officer may issue a notice directing the person concerned to appear before him. If such person fails to comply with such a notice, the police officer can arrest him.

6. The newly-inserted S. 41-B lays down the procedure for arrest and the duties of the police officer making the arrest.

7. Under a new provision, S. 41-C, the State Government is now obliged to establish a police control room both at the State level as well as in every district.

8. A new section, S. 41-D, confers a right on an arrested person to meet an advocate of his choice during his interrogation.

9. A new proviso has been added to S. 46(1) to provide safeguards when the person who is to be arrested is a woman.

10. S. 54 of the Code has been substituted, and it is now provided that when any person is arrested, he should be medically examined as soon as the arrest is made, and the medical officer must prepare a report of the medical examination and in particular, mention if there were any injuries or marks of violence on the arrested person and the approximate time when such injuries or marks may have been inflicted. A copy of this report must also be furnished to the arrested person or a person nominated by him.

11. A new section, S. 55-A, makes it the duty of the person having custody of an accused to take reasonable care of the health and safety of the accused.

12. S. 60-A, inserted by the 2008 Amendment, lays down as follows:

“No arrest shall be made except in accordance with the provisions of this Code or any other law for the time being in force providing for arrest.”

13. As regards recording of evidence in rape cases, it is now provided by S. 57 that the recording of the statement of the victim is to be done at the residence of the victim or in any other place of her choice. As far as is practicable, such statement is to be recorded by a woman police officer in the presence of the victim’s parents or near relatives or in the presence of a social worker of that locality.

14. S. 161 of the Code now permits recording of statements under S. 161(3) by audio-video electronic means also.

15. Likewise, it is provided by S. 164 that any confession or statement made under S. 164(1) may also be recorded by audio-visual electronic means in the presence of the advocate of the person accused of an offence. It is further provided by S. 164 that no confession can be recorded by a police officer on whom any power of a Magistrate has been conferred under any law for the time being in force.

16. The Proviso to S. 167 has been amended and it is now provided that a Magistrate cannot authorise detention of an accused in police custody under S. 167 of the Code unless the accused is produced before the Magistrate for the first time, and subsequently, every time till the accused remains in the custody of the police. However, the Magistrate can extend further detention in judicial custody on production of the accused either in person or through the medium of electronic video linkage.

It is also provided that if a question arises as to whether an accused person was produced before the Magistrate, as required above, his presence can be proved by his signature on the order authorising detention or by the order certified by the Magistrate as to production of the accused person through the medium of electronic video linkage, as the case may be.

A new Proviso has also been added to S. 167, laying down that in case of a girl under 18 years, her detention should be authorised to be in the custody of a remand home or a recognised social institution.

17. S. 172 of the Code, which makes provisions for keeping a “case diary” by every police officer has been amended to include the following two provisions:

(a) The statements of witnesses recorded during the course of an investigation under S. 161 are to be inserted in the case diary.

(b) The case diary must bear a volume and be duly paginated.

18. S. 173 of the Code now provides that the investigation in relation to the rape of a child may be completed within three weeks from the date on which information was recorded by the officer-in-charge of the police station.

[Note: It is clear that the use of the word “may” in this amendment takes away the efficacy of the provision. It may soon be realised that this amendment will not succeed in bringing about the results it was intended to.]

19. In S. 198 of the Code, which deals with prosecution for offences against marriage, it was earlier provided that no court shall take cognizance of an offence under S. 376 of the Indian Penal Code where the offence consists of sexual intercourse by a man with his own wife who is under 15 years of age if more than one year has elapsed from the date of the commission of the offence.

By the 2008 Amendment, in place of “under 15 years of age”, the words, “under 18 years of age” have been substituted.

20. S. 242 of the Code has been amended and it is now provided that the Magistrate shall supply to the accused, in advance, the statements of witnesses recorded by the police during investigation.

21. S. 275 of the Code now provides that the evidence of a witness under S_; 275(1) may also be recorded by audio-visual electronic means in the presence of the advocate of the accused person.

22. S. 309 of the Code has been amended by the insertion of the following new provisions:

(a) Inquiries and trials relating to offences under S. 376 to 376-D of the Indian Penal Code should, as far as possible, be concluded within a period of two months from the date of commencement of the examination of witnesses.

(b) No adjournment is to be given at the request of a party except where the circumstances are beyond the control of that party.

(c) The fact that the pleader of a party is engaged in another court cannot be a ground for adjournment.

(d) If 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 or cross-examination of the witness, as the case may be.

23. In S. 313 of the Code, it is now provided that the court may take the help of the Prosecutor and the Defence Counsel to prepare relevant questions which are to be put to the accused. The court may also permit the filing of a written statement by the accused as sufficient compliance with the provisions of S. 313.

24. The two “Tables” contained in S. 320 (1) and S. 320 (2) of the code have been substituted by new Tables. (These Tables refer to the persons by whom various offences can be compounded.)

25. In S. 327 of the Code, —

(a) It is now provided that trials in respect of rape and offences under S. 376 and Ss. 376-A to 376-D of the Indian Penal Code which are conducted in camera shall, as far as is practicable, be conducted by a woman Judge or Magistrate;

(b) Although it is declared unlawful to print or publish matters relating to trials falling under clause (a) above, it is now provided that this ban may be lifted in cases of trials relating to rape, subject to maintaining confidentiality of the name and address of the parties.

26. Ss. 328 and 329 of the Code have been amended to provide that if the Magistrate or the Court of Sessions or the Civil Surgeon, as the case may be, finds the accused to be of unsound mind, such a person is to be referred to a psychiatrist or a clinical psychologist for care and treatment.

27. S. 330 of the Code now provides for the release of a person of unsound mind on bail, pending investigation or trial, whether or not the case is one where bail may be granted.

28. A new section, S. 357-A, has been inserted in the Code, under which it is mandatory for every State Government to prepare a scheme, known as “Victim Compensation Scheme” for providing funds for the purpose of compensation to the victim of a crime or his or her dependents who have suffered loss or injury as a result of a crime and who require rehabilitation. Such a scheme is to be framed by the State Government in co-ordination with the Central Government.

29. S. 372 of the Code has been amended to provide that the victim shall have a right to prefer an appeal against an order passed by the Court acquitting the accused or convicting him for a lesser offence or imposing inadequate compensation. Such an appeal is to be filed in the court to which an appeal ordinarily lies against the order of conviction of such a court.

30. A new section, S. 437-A, has been inserted in the Code under which before conclusion of the trial and before disposal of the appeal, the court trying the offence or the Appellate Court, as the case may be, must require the accused to execute bail bonds with sureties, to appear before the higher court as and when such a court issues a notice in respect of any appeal or petition filed against the judgment of the respective court and such a bail bond is to be in force for six months. In such a case, if the accused fails to appear in court, the bond stands forfeited and the procedure laid down by S. 446 of the Code is to apply.