Recent Amendments in Criminal Law -A Presentation By: Sulkhan Singh IPS IGP Tech. Services (U.P.) Police Week-2006 (23.11.06 to 27.11.06)
Amendments - Came into Force • The code of criminal Procedure (Amendment) Act,2005 (25 of 2005) • Effective- 23.06.2006 (all except S.16, 25, 28(a), 28(b), 38, 42(a), 42(b), 42(f) (iii) and (iv) and 44(a) ) • Criminal Law (Amendment) Act,2005 (2 of 2006) • Effective- 16.04.2005 (All except S.4) • 05.07.2006 (S.4 Plea bargaining)
The Criminal Law (Amendment) Act-2005 (2 of 2006) • Section 195A. added in the IPC • 195-A. Threating any person to give false evidence. • => 7 Years or fine or both- Cog+NB • If innocent convicted==> • -Death, life imp. • Or > 7 yrs. • same punishment as such innocent person punished with. • Cog+NB
Amending S.195 of Cr.P.C. Prosecution for certain offences respecting Proceedings in the court etc. - On the complainant in writing or by such officer of the court as that court may authorise in writing in his behalf or is subordinate.
PLEA BARGAINING • New Chapter XXI A inserted in Cr.P.C.(vide S.4) • S. 265- A to L (12 sections) added • This comes into force w.e.f. July 5, 2006 • This chapter applies to – • Reports forwarded by officer i/c of P.S. u/s 173 • other than offence for which punishment of - • ---Death or Imprisonment for life • ---or imprisonment exceeding 7 years • OR • 2. Magistrate has taken cognizance on complaint and after examining complainant & witnesses U/S 200 has issued process u/s 204.
Plea bargaining does not apply to – 1- where the offence affects social economic condition of the country or 2- has been committed against a woman or a child below age of 14 years Central Govt. to notify offences that affect socio economic condition of the country. or 3- If the accused is a juvenile under Juvenile Justice (Care and Protection of children) Act- 2000 (56 of 2000)
Procedure 1. Accused may file for a plea bargain S. 205 B (1) 2. Application should be voluntary and well informed S 205 B (2) 3. Court shall issue process to PP or complainant and the accused to appear or fixed date (S.205 B (3)) 4. Court shall examine accused in camera- and if satisfied that it is voluntary – provide time to PP or complaint and accused for a mutually satisfactory dispositions MSD--may include compensation and other expenses --if found involuntary or he has been previously convicted of same offence- proceed with trial in normal way.
Mutually Satisfactory Disposition In a case on police report – notice to PP, Police Officer/ I.O., accused and victim to participate in the meeting to work out a mutually satisfactory disposition of the case court’s duty to ensure that process is voluntary Accused or in a complaint case- victim & accused may participate with his pleader. 265 D-Court to prepare report of MSD signed by Presiding officer of court, & all who participated.
265 E-When MSD worked out- 1- Court shall award compensation to the victim and, 2- hear the parties on the question of punishment, releasing him on probation of good conduct or after admonition. u/s 360, or deal under probation of offenless ACT 1958 (20 of 1958), or any other law for the time being in force. 3- If minimum punishment has been provided, it may sentence the accused -½ of such minimum punishment. If not - ¼ of punish. provided for the offence
265 F- Deliver Judgment in terms of s 265 E in open court and sign it. 265 G- Judgment final - no appeal- except under Article 136/226/ 227 of Constitution of India. Amendment of sec. 154 of The Indian Evidence Act,1872- Sub- Sec. (2) added- prosecution can rely on any part of the evidence of a hostile witness.
The Code of Criminal Procedure (Amendment) Act, 2005 (25 of 2005) Inserting new S.25A-Creation of Directorate of Prosecution. Amending S. 29 -Magistrate of first class fine upto Rs. 10000 in place Rs. 5000 -Magistrate of II class fine Rs.5000 in place of Rs.1000 Amending S. 46-Arrest of a woman during night. Inserting new S.50A-Obligation of person making arrest to informs about arrest etc. Amending S.53-Examination of arrested person on request of police. Inserting new S.53A-Examining an accused of rape.
Amending S.54- copy of report of Med. exam. on request of arrested person to given to arrested person Amending S.82-Sub section (4) for 302,304,364,367,382,392, 393, 394 ,395 ,396,397,398, 399,400,402, 436, 449,459 or 460 of IPC If he fails Pronounce him a Proclaimed Offender New offence created S.174A IPC-Cog+NB • Non appearing in response to a proclamation u/s 82 of crpc • ---3 years or fine or both • ---seven years and fine - if declared a proclaimed offender • ==>both cog+NB
Amending S.102-(3) Supurdagi (4) Auction under orders of of SP speedy and natural decay- Value < Rs. 500/- Amending S.110-Foreigners Act included in list of offences Inserting new S.144A- Carrying arms in procession, Drill or training with arms (not enforced yet) New S.153AAIPC-violation of 144–A–6 months and fined upto Rs. 2000/- Cog+ NB (not notified yet) Inserting S.164 A- Medical examination of victim of rape- detailed - not without consent of victim Amending S.176-In case of (a) Death or disappearance from custody (b) Rape in custody Judicial enquiry by Judicial Magistrate concerned is a must.
Amending S.206-Plead guilty by sending fine- Max. Rs. 1000 in place of Rs. 100 both Magistrate of I & II class Amending S.260-for summary value of property- --- from Rs. 200/- to Rs. 2000/- Amending S.291A- Identification report of Magistrate- evidence Inserting S.311A- Magistrate may order giving of signature or handwriting - force can be used Amending S.356-Notifying addresses of previouslyconvicted offenders. Amending S.377-Appeal against inadequacy of sentence- toSession Court also- by State Govt. Amending S.378- Appeal against acquittal in cognizable & NB case- to Session Court also- and by DM instead of State Govt.
Amending S.389-Public Prosecutor to be given opportunity • in case of bail to convicted persons • Amending S.436-Release on personal bond of persons • arrested on other than non bail able offence • and shall - if person is indigent – • Indigent- can not furnish bail for 7 days. • Inserting 436 A- Maximum period for which an under trial • can be detained- ½ max. punishment. • provided – shall be released on PB with or without sureties • Court may order continued detention on application of PP • Further Provided – not to be detained for more than maximum sentence • Delay caused by the accused excluded
Amending Section 437- Bail in non- bailable to cases =>7 years or more – notice to PP to be given- must =>7 years or more or Chapt. VI, XVI, or XVII court shall impose conditions- (i) Shall attend in accordance with conditions of bond (ii) Shall not commit a similar offence (iii) Not to make inducement, threat or promise (iv) Such other conditions in the interest of justice Bail Jumping-New Sec. 229-A added in The IPC Punishment- 1 yr. or fine or both
Amending S.438-Anticipatory bail (not enforced yet)Factors to be considered by the Court- • (i) Nature and guilty of accusation • (ii) Antecedents – previous imprisonment or conviction • (iii) Possibility to flee from justice • (iv) Whether accusation – for humiliating accused. • Either– Reject or Grant interim anticipatory bail • Provided- If no order passed in application - pending such • application - police may arrest. • Where interim order- (1) Notice of 7 days to PP and SP • -Presence of accused at final hearing must if on PP's application court consider it necessary for interest of justice • Inserting S.441A-Declaration by sureties- How many persons • bailed
New offences in The IPC- • 1.S.153AA-violation of 144–A–6 months and fined upto 2000 • Cog+ NB (not notified yet) • 2. Section 174A- Non appearing in response to a proclaimed u/s 82 of crpc • ---3 years or fine or both • ---seven years and fine if declared a proclaimed offender • both cog+NB • 3.S229 A- failure by person released on bail or bond to appear in Court • one year or fine or both- cog+NB
Amendments in Cr.P.C. 25 A. Directorate of Prosecution- (1) The State Government may establish a Directorate of Prosecution consisting of a Director of Prosecution and as many Deputy Directors of Prosecution as it thinks fit. (2) A person shall be eligible to be appointed as a Director of Prosecution or a Deputy Director of Prosecution, only if he has been in practice as an advocate for not less than ten years and such appointment shall be made with the concurrence of the Chief Justice of the High Court. (3) The Head of the Directorate of Prosecution shall be the Director of Prosecution, who shall function under the administrative control of the Head of the Home Department in the State. (4) Every Deputy Director of Prosecution shall be subordinate to the Director of Prosecution. (5) Every Public Prosecutor, Additional Public Prosecutor and Special Public Prosecutor appointed by State Government under sub-section (8), of section 24 to conduct cases in District Courts and every Assistant Public Prosecutor appointed under sub-section (1) of section 25 shall be subordinate to the Deputy Director of Prosecution.
(6) Every Public Prosecutor, Additional Public Prosecutor and Special Public Prosecutor appointed by the State Government under sub-section (3), or as the case may be, sub-section (8), of section 24 to conduct cases in District Courts and every Assistant public Prosecutor appointed under sub- section (1) of section 25 shall be subordinate to the Deputy Director of Prosecution. (7) The powers and functions of the Director of Prosecution and the Deputy Directors of Prosecution and the areas for which each of the Deputy Directors of Prosecution have been appointed shall be such as the State Government may, by notification, specify. (8) The provisions of this section shall not apply to the Advocate General for the State while performing the functions of a Public Prosecutor [Substituted by Cr.P.C. Amendment Act,2005 (25 of 2005) w.e.f. 23/06/2006]
46. Arrest how made- (1) *** (2) *** (3) *** [(4) Save in exceptional circumstances, no woman shall be arrested after sunset and before sunrise, and where such exceptional circumstances exist, the woman police officer shall, by making a written report, obtain the prayer permission of the Judicial Magistrate of the first class within whose local jurisdiction the offence is committed or the arrest is to be made.] [Substituted by Cr.P.C. Amendment Act,2005 (25 of 2005) w.e.f. 23/06/2006]
50A Obligation of person making arrest to inform about the arrest, etc., to a nominated person – (1) Every police officer or other person making any arrest under this Code shall forthwith give the information regarding such arrest and place where the arrested person is being held to any of his friends, relatives or such other persons as may be disclosed or nominated by the arrested person for the propose of giving such information. The police officer shall inform the arrested person of his rights under sub-section (1) as soon as he is brought to the police station. An entry of the fact as to who has been informed of the arrest of such person shall be made in a book to be kept in the police station in such form as may be prescribed in this behalf by the State Government. It shall be the duty of the Magistrate before whom such arrested person is produced, to satisfy himself that the requirements of sub-section (2) and sub-section (3) have been compiled with in respect of such arrested person. [Substituted by Cr.P.C. Amendment Act,2005 (25 of 2005) w.e.f. 23/06/2006]
Section 53 Examination of accused by medical practitioner at the request of police officer- (1) When a person is arrested ---- shall be lawful for a registered medical practitioner, acting at the request of a police officer not below the rank of sub-inspector, -- to make such an examination--. (2) *** [Explanation- a) "examination" shall include the examination of blood, blood stains, semen, swabs in case of sexual offences, sputum and sweat, hair samples and finger nail clipping by the use of modern and scientific techniques including DNA profiling and such other tests which the registered medical practitioner thinks necessary in a particular case; b) "registered medical practitioner" means a medical practitioner who possess any medical qualification as defined in clause (h) of section 2 of the Indian Medial Council Act, 1956 (102 of 1956) and whose name has been entered in a State Medical Register'..] [Substituted by Cr.P.C. Amendment Act,2005 (25 of 2005) w.e.f. 23/06/2006]
Section 53A Examination of person accused of rape by medical practitioner- (1) When a person is arrested on a charge of committing an offence of rape or an attempt to commit rape and there are reasonable grounds for believing that an examination of this person will afford evidence as to the commission of such offence, it shall be lawful for a registered medical practitioner employed in a hospital run by the Government or by a local authority and in the absence of such a practitioner within the radius of sixteen kilometers from the place where the offence has been committed by any other registered medical practitioner, acting at the request of a police officer not below the rank of a sub-inspector, and for any person acting in good faith in his aid and under his direction, to make such an examination of the arrested person and to use such force as is reasonably necessary for that purpose. (2) The registered medical practitioner conducting such examination shall, without delay, examine such person and prepare a report of his examination giving the following particulars, namely:- (i) the name and address of the accused and of the person by whom he was brought,
(ii) the age of the accused, (iii) marks of injury, if any, on the person of the accused, the description of material taken from the person of the accused for DNA profiling, and (iv) other material particulars in reasonable detail. (3) The report shall state precisely the reasons for each conclusion arrived at. (4) The exact time of commencement and completion of the examination shall also be noted in the report. (5) The registered medical practitioner shall, without delay, forward the report of the investigating officer, who shall forward it to the Magistrate referred to in section 173 as part of the documents referred to in clause (a) of sub-section (5) of that section. [Substituted by Cr.P.C. Amendment Act,2005 (25 of 2005) w.e.f. 23/06/2006]
Section 82 Proclamation for person absconding – (1) *** (2) *** (3) *** (4) Where a proclamation published under sub-section(1) is in respect of a person accused of an offence punishable under section 302, 304, 364, 367, 382, 392, 393,394,395, 396,397, 398,399, 400,402, 436, 449,459 or 460 of the Indian Penal Code, and such person fails to appear at the specified place and time required by the proclamation, the Court may, after making such inquiry as it thinks fit, pronounce him a proclaimed offender and make a declaration to that effect. (5) The provisions of sub-sections (2) and (3) shall apply to a declaration made by the court under sub-section (4) as they apply to the proclamation published under sub-section (1) .] [Substituted by Cr.P.C. Amendment Act,2005 (25 of 2005) w.e.f. 23/06/2006]
Section- 164 A. Medical examination of the victim of rape.- (1) Where, during the stage when an offence of committing rape or attempt to commit rape is under investigation. it is proposed to get the person of the woman with whom rape is alleged or attempted to have been committed or attempted, examined by a medical expert, such examination shall be conducted by a registered medical practitioner employed in a hospital run by the Government or a local authority and in the absence of such a practitioner, by any other registered medical practitioner, with the consent of such woman or of a person competent to give such consent on her behalf and such woman shall be sent to such registered medical practitioner within twenty-four hours from the time of receiving the information relating to the commission of such offence. (2) The registered medical practitioner, to whom such woman is sent shall, without delay, examine her and prepare a report of his examination giving the following particulars, namely:-
(i) the name and address of the woman and of the person by whom she was brought; (ii) the age of the woman; (iii)the description of material taken from the person of the woman for DNA profiling; (iv) marks of injury, if any, on the person of the woman; (v) general mental condition of the woman; and (vi) other material particulars in reasonable detail. (3) The report shall state precisely the reasons for each conclusion arrived at. (4) The report shall specifically record that the consent of the woman or of the person competent to give such consent on her behalf to such examination has been obtained. (5) The exact time of commencement and completion of the examination shall also be noted in the report. (6) The registered medical practitioner shall, without delay, forward the report to the investigation officer who shall forward it to the Magistrate referred to in section 173 as part of the documents referred to in clause (a) of sub –section (5) of that section.
(7) Nothing in this section shall be construed as rendering lawful any examination without the consent of the woman or of any person competent to give such consent on her behalf. Explanation.- For the purposes of this section, "examination" and " registered medical practitioner" shall have the same meanings as in section 53.] [Substituted by Cr.P.C. Amendment Act,2005 (25 of 2005) w.e.f. 23/06/2006]
New Sections in IPC Section –174A. Non-appearance in response to a proclamation under section 82 of Act 2 of 1974.-Whoever fails to appear at the specified place and the specified time as required by a proclamation published under sub-section (1) of section 82 of the Code of Criminal Procedure, 1973 shall be punished with imprisonment for a term which may extend to three years or with fine or with both, and where a declaration has been made under sub-section (4) of that section pronouncing him as a proclaimed offender, he shall be punished with imprisonment for a term which may extend to seven years and shall also be liable to fine.] CLASSIFICATION OF OFFENCE Para I: Punishment- Imprisonment for 3 years or fine, or with both-Cognizable- Non-bailable- Triable by Magistrate of the first class- Non-compoundable. Para II: Punishment- Imprisonment for 7 years and fine- Cognizable- Non – bailable- Triable by Magistrate of the first class- Non- compoundable. [Substituted by Cr.P.C Amendment Act,2005 (25 of 2005) w.e.f. 23/06/2006]
New Sections in IPC Section- 229A Failure by person released on bail or bond to appear in Court- Whoever, having been charged with an offence and released on bail or on bond without sureties , fails without sufficient cause (the burden of proving which shall lie upon him), to appear in Court in accordance with the terms of the bail or bond, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both. Explanation.- The punishment under this section is- in addition to the punishment to which the offender would be liable on a conviction for the offence with which he has been charged; and without prejudice to the power of the Court to order forfeiture of the bond.] CLASSIFICATION OF OFFENCE Punishment- Imprisonment for 1 year, or fine, or both-Cognizable- Non-bailable- Triable by any Magistrate –Non compoundable. [Substituted by Cr.P.C. Amendment Act,2005 (25 of 2005) w.e.f. 23/06/2006]