Code Criminal Procedure

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Statements Made To A Police Officer In Course Of Investigation- Should They Be Signed? Their Use And Value. Analyse The 2008 Amendment To Crpc With Regard To Recording Of Statement By Police

Introduction

President gives intonation to Law threatening arrest in offenses carrying upto seven years imprisonment.It has been reported in the Times of India dated 19th January, 2009 that the President has granted assent to the law past nearly three week back by the parliament which brings about major changes in the Criminal Procedure Code. This recently enacted law take away the powers of the police to arrest in cases of suspected offenses which carry a maximum verdict upto seven years of imprisonment.The amendment proposes that the police officer may, instead of arresting the person concerned, subject a notice of appearance, asking him to assist with the police officer in the search. No arrest will be made a non-cognisable offence apart from under a warrant or order of a magistrate.

The reasons for arrest should be of resonance and recorded in text by the police officer, the amendment proposes.Where such a note is issued to any person, it shall be the duty of that person to abide by with the terms of the notice and arrest can be made only if the person fails to comply with the notice. an additional amendment in Section 41 proposes that every and each police officer while making an arrest shall "bear an accurate visible and clear identification of his name." At the time of arrest, the communication shall be attested by at least one witness, who is a member of the family of the person arrested or a highly regarded member of the locality where the arrest is made.The police officer will also have to to inform the arrested person that he has a right to have a relative or a friend named by him knowledgeable of his arrest. When any person is arrested and questioned by the police, he shall be permitted to meet an advocate of his preference during interrogation, though not throughout interrogation.

The amendment in Section 54 makes it obligatory for the police to conduct medical examination of an arrested person by a medical practitioner."No one protested when this proposal was made and put for public debate.However, now the objection against these amendments did not come from police officials, but from a small section of the lawyers. If the power to arrest and jail people without proof is taken away from police by bringing in more responsibility, how is it damaging the lawyers? Justice Malimath and his committee, which suggested these amendments was made up of reputed and highly convincing lawyers only.

It is definite that lawyers were disturbed at the vision of losing huge sums of money that they used to demand from litigants, during bail applications.Once the law, CrPC (Amendment) Act 2008, becomes effectual, the police, instead of arresting the accused, will be obliged to issue him/her a “notice of appearance” for any wrongdoing punishable with sentence up to seven years. The person can be arrested only if he/she does not come into sight before the police in answer to the notice.Seven years or less is the maximum penalty for a bunch of offences. These offences include such as attempt to execute culpable homicide, kidnapping, death by negligence, cheating, voluntarily causing grievous hurt, outraging a woman's modesty, robbery, attempt to suicide.These amendments have been made in section 41 of the CrPC.

Under Section 41, as it in the beginning stood, a police officer may, devoid of an order of a magistrate and devoid of a warrant, arrest any person who has been apprehensive in any cognisabale offense. The underlying principle of the alteration in section 41 of the code of criminal procedure has been reasonable by the home minister of India Shri P. Chidambaram apparently in his correspondence which says that the stipulation was being capable of being distorted and was in fact in reality being misused in exercise. He substantiated this claim of maltreatment of the arrest law by the police using it more of an engine of harassment rather than an instrumentality of fair examination by citing the various information of the law commission of India, the Malimath committee of reforms, and the milestone supreme court judgment in the case of DK Basu.

In fact it was misused of this law that had necessitated the delivering of DK Basu judgment in which various dos' and donts' were approved to be strictly complied by the police force while investigating a case and arresting an accused.The amendment in CrPC, however, consent to police to arrest without an order from a magistrate and without a warrant a person who commits a cognisable offense “in the being of a police officer”.It also enables arrest of “ a person who has committed a cognisable offence (punishable for a term which may be less than 7 years or extend upto 7 years) if there is a reasonable complaint or believable information or a reasonable doubt and the police officer is pleased that such arrest is essential for appropriate investigation of the offence or for preventing tampering with the proof “. The only further requirement in such cases is that the police officer will have “to record his reasons” for making the arrest.

Police Misconduct

Police officers do not have limitless powers when conducting criminal assessment. If a person is facing criminal charges and he consider that the police may have ill-treated their powers during the course of their investigation, he should get in touch with to discuss the potential remedies available to him as a result of police misbehaviour, to hold the police answerable for their behaviour.We can challenge criminal accusations on the basis that the police used unnecessary force during the course of a client's arrest, or that for example in a case where a particular motor vehicle stop was made on the basis of racial profiling. If a judge is satisfied that the police misconduct is grave enough, criminal charges can be thrown out of court altogether, or evidence collected by the police may be disqualified from the trial.By police “misconduct”, we mean any conduct that exceeds their power, or encompass an abuse of police authority or carefulness.

It is not essential that the conduct is malicious in nature. Police discourtesy may occur in any number of dissimilar situations, during the exploratory process, and during the course of an arrest. You can have very significant success in challenging evidence, such as a verbal statement or drug seizure, on the basis that the evidence was obtained as a result of police misconduct.We can successfully defende P who was charged with Care and Control of a Motor Vehicle while his blood alcohol level was over 80 mg%, and Impaired Care and Control. P was found asleep at the wheel of his motor vehicle at 9:30 in the dawn. The machine was running.

A police officer approached P's vehicle and knocked on the door, waking P. He was experimental to have the following indicia of impairment: Strong smell of an alcoholic drink; inaudible speech; blushing face; Dilated pupils. The officer detained P for Impaired Care and Control of the motor vehicle. P was searched upon arrest. A half-filled bottle of Sambucca was bring into being in his jacket pocket. He provided breath samples of 141 mg% and 141 mg%, almost twice the legal limit.

At trial, can be successfully argued that prior to the take into custody of P, the police officer should have requested that P provide a breath sample into an ASD (approved screening device) as an analytical tool.

Arrest:

A police officer may only arrest, devoid of a warrant, a person who has committed an indictable offence or who they believe based on sensible and probable grounds has committed or is about to commit an indictable offence, or a person whom they find committing a criminal offence. Once arrested, the police must bring an accused person before a Justice for a bail hearing devoid of unreasonable delay and within 24 hours. An arrest without rational and probable grounds is unlawful. The police cannot conduct unsystematic or arbitrary investigations of civilians, whether they are walking in the street or driving their motor vehicles.

An arrest can only be made where there are sensible and probable grounds to arrest.

Search & Seizure

The police may search an individual incidental to their take into custody. They may be legalized to search the arrested person's instant surroundings, depending upon where they are positioned. During the course of an investigative custody, the police may conduct a superficial search of a person, for “police safety”.

Any search of any position conducted by the police must be with lawful justification and in a manner respectful of the privacy and property interests of a person. In most cases the police need to be appropriate to a judicial officer for a warrant to search any place. Warrantless searches are per se against the law.

The police do have the power to seize illegal imports which is in plain view. They also have the ability to search any place with the informed consent of the owner. “Informed consent” means that the owner of the home or vehicle has a significant awareness of the nature of the examination, an opportunity to consult with counsel if essential, and the awareness that they have the capacity to withhold their consent. The mere fact that the police have applied for and obtained a search warrant does not mean that the investigate is automatically a legal one.

Search warrants may be challenged on the basis that the police misled the judicial officer who certified the search.

In Culpatory Statements:

When a deduce is arrested or behind bars, the police must respect an accuser's person's right to counsel. They must advise them of the specific offences for which they are being investigated, and that they have a right to converse to a lawyer. The police must also give the accused a sensible chance to make contact with their lawyer of preference. In addition, only statements made to police that are of their own accord given will be admissible as evidence at trial.

A statement is only “voluntary” if it has not been obtained as a consequence of any promises, threats or other inducements thought out by the police. For example, where the police advise a person under arrest that they will obtain some benefit for bail or at trial if they admit, the proclamation is generally excluded from the trial as “unintentional or involuntary ”. Finally, the police must respect a person's right to silence and their right not to implicate them self.

Remember: YOU HAVE THE RIGHT TO REMAIN quiet AND THE RIGHT NOT TO PROVIDE A STATEMENT TO THE POLICE!

Police Officers' Notes:

Police officers are expected to make comprehensive notations of significant features of an enquiry, counting their get in touch with a person during the detain process. Later, these notes may be used to revive their remembrance when testifying in court. Police officers are under discussion to strict guiding principle to ensure the honesty of their individual note-taking procedure. We can successfully attack the trustworthiness of many police officers' indication based on their poor note taking, or their association with other officers during note-taking, or their failure to make information of an important aspect of an examination. Police officers are required to make sure that their notes of a criminal enquiry are precise and impartial.

All annotations should be in the police officer's own handwriting. Notes should be made at the time of his or her annotations, or as soon thereafter as possible.

Crpc Amendment Will Diminish Arrests Of Innocent People

The Indian Penal Code (IPC) contains in excess of 500 sections, which defines the dissimilar kind of crimes and penalty for them, if established in a court of law. The procedures related to functioning of the IPC sections, like the procedures connected to arrests, trial, witnesses, opinion etc are enclosed in policy of Criminal Procedures (CrPC). The IPC sections or the criminal laws and procedures are dissimilar from civil laws, family laws and corporate laws etc. Both IPC and CrPC sections are hired from what the British followed more than 100 years back.The police in India enjoy the similar powers today as it enjoyed during its closeness to colonial masters. The Indian police inherit the behavioural character like instilling fear on people as it was allocated to do for the period of British Raj.

Frequently we read in media about corruption, extortion, torture by police and custodial deaths. Moreover, it has been established that most jails are 40% over crowded with under trials and innocents, who cannot have enough money for bail.So, the Government was under stress from Human Rights Organisations for some time to bring in serious answerability to police actions and to start sustained efforts to shack the negative image of Indian police.In current times, it has been extensively reported in the media about arrests and jailing of innocent men, women and even children under dowry prohibition act 1961 and the anti-cruelty laws section 498a of IPC. Police and lawyers were frequently held responsible by feminists for misleading women and their parents in filing fake dowry cases.In December 2008, the Indian Parliament approved a bill to improve the section 41 of Code of Criminal Procedure (CrPC) to redefine the Indian police's "authority to arrest".

This is a fundamental reform as it restrains the police from arresting people randomly, if the crime under which a person is accused has a sentence of less than 7 years of imprisonment. That means, police can arrest the accused person, only if the accused does not assist with police in examination. Police can also arrest a person only after taking authorization from a magistrate.Now the question is:can police arrest a person for say 7 hours in police station devoid of arresting? Yes.

Police can do this for the sake of examination and the accused can insist police to give it in writing that he was kept in police station for 7 hours. If police needs to arrest him after 7 hours, then police has to give precise reasons in inscription, which necessitated the arrest under the guiding principle as specified by Supreme Court. The other way for police to arrest the accused is to arrest after taking authorization from a magistrate/judge.a major conquest for human rights groups in India as the President signed the bill on this amendment on "powers of police". The alteration is expected to fetch quite some amount of responsibility to police and will put an end to illogical arrests, detentions, torture, extortion and even custodial deaths.

This is also expected to diminish the fear people have about police.
"police asking Rs.100 from an accused is called bribe and police demanding Rs.50,000 is extortion". The role of police in a country is to serve the citizens. However in India, people always have a preference to keep a safe detachment from police.

They know Indian police can rape, abuse, frame false cases and extort under threats. In Bangalore, the anti-corruption officials often raid the houses of police inspectors and find that their net value is more than couple of crores of rupees. Many laws, which are enacted to authorize the weak and subjugated, actually empower the police instead of empowering the feeble or the subjugated.

Can not the weak and subjugated be given justice without empowering police or elevating lawyers?The story highlights the fact that five low ranking police officers have a net value of Rs.60 crores, when the anti-corruption bureau of Karnataka, the Lokayuktha raided their properties.Justice Malimath, previous Chief Justice of Karnataka and Kerala High courts, who headed the Malimath committee on legal reforms recommended reining in the police and bringing in more answerability in the "power to arrest" of police. He knew that there are lot of poor innocent people languishing in jails devoid of trials as they do not even have the money to apply for bails.The report says:The National Police Commission in its 3rd Report, referring to theexcellence of arrest by the police in India had mentioned that power of arrest wasone of the principal sources of corruption in the police.

The report suggested that generally 60% of the arrests were either needless or baseless and that such unjustified police action accounted for 43.2% of the expenditure of the prison division."Power of arrest is often misused. The person arrested apart from distress considerable difficulty, also suffers by loss of his image in the society. Even if in the end he is found to be innocent that damage done to thearrested person cannot be undone. There is a wrong impression in the minds of the police that the first thing for him to do is to arrest the suspected person even without making any examination."It is also a fact that frequently deprived people are chosen by police. They are extorted and sent to jail if they be unsuccessful to pay up.

Not to talk about, enormous 75,000 cases filed under section 498a and anti-dowry laws, in which police extorts Rs.25,000 to Rs.50,000 per person with promise that they will not send their mother or sister to jail, if they pay up. So, the guy's family thinks, allow the guy go to prison and at least his sister or mother do not have to go to prison, if they pay up. Sometimes, lawyers and police force the guy into signing an enormous settlement deal right inside police station under the danger of getting him and his family locked up, if he does not obey. The police and lawyers get a heavy commission out of the settlement quantity.

The dictum of police and lawyers is simple: make people anxious under threats, so that they will cough up.Since last 2 years, an all party Indian parliamentary standing committees worked on Malimath committee report, discussed with experts and human rights organisations and recommended the parliament to amend the Code of Criminal Procedure(CrPC) 41, to fetch more answerability to police's power to arrest people. This bill was approved in parliament in December 2008 and president of India signed it just a few days back, which makes it a law now. ConclusionThe Code Of Criminal Procedure (Amendment) Bill, 2008The views of Save Family establishment on these amendments in CrPC are:This is an rudeness to the Honb'le zenith court of India by Lawyers themselves.

The revision in the CrPC, sections 41 to 60A in the present bill are actually the official introduction of the “guiding principle for making arrest” by the Honb'le apex court in its various judgments like:1. “SHRI D.K. BASU VS STATE OF WEST BENGAL [1997] S.C.C. (crl) 92″ and2. “JOGINDER KUMAR Vs. STATE OF U.P. - 25/04/1994 (CITATION 1994 AIR 1349 1994 SCC (4) 260 JT 1994 (3) 423 1994 SCALE (2)662)”.Lawyers are protesting just because it is bluster to their business of extortion in hand and gloves with the state police.

As the guiding principle by the apex court were never followed by the investigating bureau and the arrest is just made on the whims and fancies of the apprehensive investigating officers but now these guiding principle are being made a part of the Code of Criminal procedure of India , lawyers and police are feeling cold.The amendments in section 41 to 60A are actually the basic human rights of any accused under the human rights convention also international.If the bar associations, as they are saying (that these amendments are anti human and anti society as per them), are really worried about the litigants, they should have protested about the section 21(b) of the proposed amendment, which narrates to CrPC section 309, which states that:“the fact that the pleader of a party is occupied in another Court, shall not be a ground for seeking adjournment”.Although this provision is being to introduced to preed fast in a trial but this will rob the illiterate and the poor litigants from justice as they could not hire a reserve advocate if the advocate hired by them is genuinely busy in another court (more difficult now in Delhi after de-centralization of the district and session courts).The stipulation of a woman judge all over the place in case of examination and trial of offences under IPC 376 to 376-D, is just an indirect way of creating gender discrimination in the judiciary as the demand of reservation of the women judges in the higher judiciary was straightforward rejected by the Honb'le CJI.Why according to section 1(2) of the act, “different dates may be chosen for different provisions of this Act” for this act to come into the force? So, It is already predictable by the so called law makers that these amendments will be opposed. So, as per the then political equations and negotiations, individual provisions will be picked up.

Bibliography

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