Joginder Singh Toor writes from Toronto

THREE kinds of judgments as John Rawls, an American Jurist puts it, a citizen has to make. First he must judge the justice of legislation and social policies, secondly he must decide which constitutional arrangements are just for reconciling conflicting opinions of justice. He should also be able to rank procedures for selecting which political opinion is to be enacted into law. Since the political process at best is one of imperfect procedural justice, he must ascertain when the enactments of the majority are to be complied with and when they can be rejected as no longer binding.

The process of taking such decisions by an awakened society would certainly lead to the establishment of general perception of justice with average utility, protection of liberty free from restrictions and limitations.

The choice becomes difficult when the nation finds itself in difficulty in deciding the justification of too frequent legislations, even on the procedure of administering substantive law.

The Criminal Procedure Code has been amended 9 times since 1973 when earlier code of 1898 was substantially over hauled. The years 1973, 1978, 1983, 1988, 1990, 1991, 2001, 2005 and 2008 witnessed major changes. After Law Commission’s report in 1969 resulting in 1973 amendment, 2nd comprehensive review was taken in 1996 consequent to 154th report of the Law Commission, relating to the law of arrest, custody, bail, sureties, procedure of warrant and summons cases, summary trials and examination of witnesses, compounding of offences, inquiries and trials.

The Law Commission on its own reviewed its report regarding procedure of arrest and submitted 177th report in 2001 and later another 178th report regarding witnesses turning hostile.
On frequent complaints of unauthorized arrests, the Supreme Court of India laid down 11 guidelines in Basu’s case to be followed while arresting a person including providing information of the cause of arrest, providing copy of allegations, opportunity to consult lawyers, medical examination, information to relatives as to where one is being taken etc. The guidelines evoked mixed response, being irksome for the police, curtailing their arbitrariness and was considered a hindrance in tackling terror related offenders.

Close to extensive amendments carried out in 2005 another amendment Bill (2006) was introduced in the Rajya Sabha. The Chairman referred the Bill to a Committee with 10 Rajya Sabha and 31 Lok Sabha members. The Committee took assistance of jurists, retired judges and ex-members of the Law Commission and came to the conclusion that “no useful purpose would be served by proceeding further with the clause by clause consideration of the Bill as the Committee could not be convinced of rationale for introducing drastic changes in the criminal jurisprudence of the country.” The Committee said, “The Committee wishes to reiterate its earlier recommendations made in its 111th report on the Criminal Law (Amendment) Bill, 2003. The Committee recommends having a relook at the entire Bill….. and to bring a comprehensive bill for revamping the criminal justice system.” Still the Bill was passed by the Rajya Sabha and cleared by the Lok Sabha without any discussion and has received the assent of the President, shows the irony of our legislative system where amendments are too frequent, at times without discussion.

The Bill as introduced contained a clause that the statement recorded by the investigating officers under Section 161 shall be signed by the witness, replacing the specific prohibition in the earlier law. Section 162 Cr.P.C specifically prohibited the obtaining of signatures of the witness on his statement. “Behind this provision there is a wholesome view of public policy that witnesses at the trial should be free to tell the truth, unhampered by anything, they might have been made to say to the police,” the Supreme Court has been observing. Obtaining signatures is no difficult. The investigating officers that we have, and the people unaware of their rights, can hardly refuse to sign even blank papers. This provision on objections from various quarters was deleted from the Bill.

An aspect that has been bothering the State and the citizens is the procedure of arrest and granting bail. The mandate, the protection and the guarantees under Article 21 of the Constitution, “No person shall be deprived of his life and liberty except according to the procedure laid down by law” have suffered gross violation and utter abuse. People are picked up, on mere complaint, sometimes even without registering a case, tortured, leading to considerable number of custodial deaths. Large numbers do not get bail and are kept languishing in jail awaiting trial. Many accused, sometimes undergo entire imprisonment before the case is decided in conviction or acquittal. Jails are overcrowded; courts overworked and the people hassled.

Repeated efforts by amending laws, to rationalize the procedure and curtail abuse of powers have yielded little. The 2008 amendment, brought about ignoring the recommendations of the Parliamentary Standing Committee aims to rationalize the procedure, requiring the police officers to exercise the power of arrest with reasonable care and only when, it is justified.

Penal law, having been categorized into three categories; involving serious offences punishable with imprisonment for a term more than 7 years, life or death sentence, the amendment provides that the accused are bound to be arrested, the material witnesses bound to be produced before the magistrate for recording their statements under Section 164 before challan is presented. The second category, involving less than 7 years, the police officer has the discretion either give a notice to the accused to appear before him on the date given, after releasing him on bail. He has the discretion to take the accused not so released to the police station and record the reasons for his arrest. In no case shall he arrest any person without recording reasons.

The reasons, justifying the arrest are given in the amended law such as, preventing the person from committing any further offence, or for proper investigation of the offence, or for preventing disappearance or tempering with the evidence by the accused or preventing pressurising the witnesses.

Such a vide discretion to the investigation officer, unless it is ensured that the law enforcing agencies are efficient and just, would be dangerous. Leaving the fate of the accused to the discretion of the investigating officer either to let him go and appear as required before the him on the date given or taking him to police station and record one of the reasons justifying arrest, can wreck havoc. Discretion, in order to reduce arbitrariness, has to be minimal.

Other provisions; arrest of a woman, without touching her body, the investigation of a rape case at the residence of the victim, the completion of the investigation and trial of a rape case within stipulated period of three months and providing compensation are welcome. Also the right of representing to the victim, providing procedure for detailed medical examination of the victim and accused also, providing procedure of arrest to be compulsorily followed curtailing unnecessary adjournments are good measures.

The introduction of recording statement of the witness by audio-video means before the police officer u/s 161 or before the court u/s 164 or any confession by the accused before the magistrate in the presence of his counsel have not only been made permissible, the extension of judicial remand by video linkage, without producing the accused before the court may reduce the burden of the police to produce undertrials before court on every date of hearing. Production of the accused in courts and related hassles are likely to be reduced.

More offences have been made compoundable. But offences under 406 misappropriations and 498A mental torture to woman [according to the justice Malimath Committee Report are being mostly misused] and were recommended to be made bailable and compoundable have not been done so.

This amendment should not be the final effort. Much more still remains to be done including revisiting the existing provisions relating to arrest and speedy justice.

[Joginder Singh Toor, Advocate, Punjab and Haryana High Court, jogindersingh_toor@yahoo.com Mobile 91-98151-33530]

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