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rajini (Lawyer )     04 February 2009

amendment to Cr.P.C

dear freinds i wanted know the amendment to section 41 and 309 of Cr.P.C


Learning

 14 Replies

ravikumarbcombl (advocate)     04 February 2009

President gives accent to Law forbidding 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 newly enacted law take away the powers of the police to arrest in cases of alleged offenses which carry a maximum sentence upto seven years of imprisonment.


Once the law, CrPC (Amendment) Act 2008, becomes effective, the police, instead of arresting the accused, will be obliged to issue him/her a “notice of appearance” for any offence punishable with imprisonment up to seven years. The person can be arrested only if he/she does not appear before the police in response to the notice.


Seven years or less is the maximum penalty for a lot of offences. These offences include such as attempt to commit 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 originally stood, a police officer may, without an order of a magistrate and without a warrant, arrest any person who has been concerned in any cognisabale offense. The rationale of the amendment in section 41 of the code of criminal procedure has been justified by the home minister of India Shri P. Chidambaram reportedly in his letter which says that the provision was being capable of being misused and was in fact actually being misused in practice. He substantiated this claim of misuse of the arrest law by the police using it more of an engine of harassment rather than an instrumentality of fair investigation by citing the various reports of the law commission of India, the Malimath committee of reforms, and the landmark 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 prescribed to be strictly complied by the police force while investigating a case and arresting an accused.


The amendment in CrPC, however, allows police to arrest without an order from a magistrate and without a warrant a person who commits a cognisable offense “in the presence 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 credible information or a reasonable suspicion and the police officer is satisfied that such arrest is necessary for proper investigation of the offence or for preventing tampering with the evidence“. The only additional requirement in such cases is that the police officer will have “to record his reasons” for making the arrest.


See the link:  https://www.vakilno1.com/LegalViews/index.php/2009/01/crpc-amendment-act-2008-gets-presidents-accent/


 


ravikumarbcombl (advocate)     04 February 2009

Lawyers enraged after government tweaks Criminal Procedure Code



 


Say amendment of Section 309 of the CrPC interferes with the basic right of the accused to defend himself and ensure a fair trial



 





By Anand Holla

Posted On Sunday, January 25, 2009 at 02:10:33 AM
Out Standing Out Standing Out Standing Out Standing Out Standing












Of the latest amendments made to the Criminal Procedure Code (CrPC) of Indian law, what has actually got the lawyers’ fraternity up in arms, is the tweaking of Section 309 of the CrPC. Mumbai lawyers feel the basic rights of the accused to defend himself and ensure a fair trial will be lost hereon.



On December 18, 2008, the Rajya Sabha passed amendments to the CrPC - the rulebook for criminal proceedings.



As per the latest amendment, Section 309 of the CrPC has been inserted with an explanation to its sub-clause. With an aim to speed-up trials, the amendment states that no adjournment should be granted at the party’s request, nor can the party’s lawyer being engaged in another court be grounds for adjournment.



But what has rattled the lawyers’ community is the third part of the sub-clause, which notes that if a witness is present in court, and if one of the parties or his lawyer are absent or are unwilling to cross-examine the witness, then the court may itself record the witness’s statement. The amendment adds that the court shall then pass orders, doing away with the lawyers’ cross-examination of the witness.



Senior counsel Shrikant Bhatt, who has written to the city’s lawyers’ bar associations, seeking consensus on the issue said, “The consequences for all litigants and lawyers are terrible. To begin with, for recording witness depositions, the judge will have to study the entire case and ask appropriate questions. So the court will conduct the examination-in-chief. But how can the court do away with the cross-examination thereby making a mockery of the trial?



“A judgment delivered without the defence having the right to cross-examine and defend would be against the principles of natural justice and equity.”



Criminal lawyer Amin Solkar cited captured terrorist Ajmal Kasab’s case to point out the ‘misplaced’ amendment.



“The Chief Justice of the Supreme Court had rightly observed that if Kasab is unrepresented in the trial court, he would have to be acquitted by the SC as he didn’t get the chance to be defended.



“The amendment to Section 309 is contradictory to this point, as the accused won’t get a chance to be defended, if the court itself grills witnesses.



“While the amendment seeks a speedy trial, it actually will cause delays in the system as the accused will obviously go in appeal citing how he didn’t get the chance to defend.”



Sudeep Pasbola, President of the Sessions Court bar association, said that the amendment on Section 309 is short-sighted and ridiculous.



“Lawyers are busy tackling several matters on a daily basis, so we cannot remain present in two courts at the same time. This amendment would cause grave injustice to the accused who couldn’t get a fair trial only because the judge shut the case by his own examination of witnesses without hearing the defence stance.”


see the link:


https://www.mumbaimirror.com/index.aspx?page=article&sectid=2&contentid=200901252009012502103326c3a170a5





N.K.Assumi (Advocate)     04 February 2009

As far as the amendment in section 309 crPc is concerned, it is violative of Universal Declarations of Human rights (1948) and the International Covenant on Civil and Political rights (1966) etc to which India is a Party. our Criminal system is based on accusastorial system based on common law unlike the Civil Law Countries. By way of amending section 309 crPc are we shifting towards civil law countries?

Ravi Arora (Advocate)     04 February 2009

very true mr. Assumi


 


but sir this is India some how it will increase currption

anil kumar (service)     04 February 2009

I understand that the amendments to Cr. PC have not been brought into force yet as the requisite notification has not been issued. In otherwords, it is a dead letter law on the statute book.


 

Rajendran Nallusamy (Advocate)     04 February 2009

 You can download the attachment containing Cr.P.C. Amendment


Attached File : 21 cr.p.c amendment 2008.pdf downloaded: 195 times

N.K.Assumi (Advocate)     05 February 2009

Dear Raviji, we can not take away the basic rights of the accused in the name of corruption. Corruption and basic rights of the accused are different. The amendment is going to change our Anglo system of criminal jurisprudence. If the amendment is enforce the judge is going to dominate and controls the trial like the continental system, but in common law system it is the counsel for the parties that dominate the proceedings and this change is not proper unless the whole system is changed into that of jury system.

N.K.Assumi (Advocate)     05 February 2009

Dear Rajendranji, thank you for the file attachment.


(Guest)

The real underlying reason is that lawyers cannot stall for time now, send thier juniors for adjournment and keep asking for dates. Everyone knows this but doesnt want to point it out. of course it cannot be argued as such so the usual defense of violation of human rights is taken. The very fact that "engaged in another court" is specifically pointed out shows that the real intention is to make lawyers be present in court and not stall.

N.K.Assumi (Advocate)     05 February 2009

In the name of stalling a case we can not take away the basic rights of the accused. The problems of unnecessary adjournment and mountain of pending cases is true and very unfortunate, but there are ways to tackle the problems, but certainly not by taking away the basic rights of the accused.

N.K.Assumi (Advocate)     05 February 2009

Let me cite another example. Consider this: suppose a case is fixed and the advocate appear but the judge do not attend the Court and on the next hearing the advocate was engaged in another case.In this situation is it proper for the judge to go ahead with the cross examination of the witness by the judge himself and dispensing with the advocate the accused case disposed? 

v.gopalakrishnan (Advocacy)     05 February 2009

The kings(Judge) rule is back.

N.K.Assumi (Advocate)     06 February 2009

Rightly pointed out Gopalaji.

lawman (advocate)     08 February 2009

the amendment us 41 cr.pc needs no change. the police has already been using the powers as per their sweet will and after this ammendment it would make police behave like judges. sections 156(3) will lose its identity.this descrition should not be implemented. infact the discretionary powers should be withdrawn in order to make police more accountable. my openion is , let police be police and judge be judge.


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