Report No. 154
8.1. Under section 167 when a person is arrested or detained in custody and it appears that investigation cannot be completed within the period of 24 hours as fixed under section 57 and there are grounds for believing that the accusation is well founded the officer-in-charge of the police station or the investigating police officer (not below the rank of sub-inspector) shall forthwith send a copy of the entries in the case diary to the nearest Judicial Magistrate and shall also at the same time forward the accused to such magistrate.
If Judicial Magistrate is not available, the copies of the entries in the case diary as well as the accused person may be sent to the nearest Executive Magistrate on whom the powers of a Judicial Magistrate or Metropolitan Magistrate have been conferred.
8.2. The Bill (NCW) has suggested the following amendment to sub-section (2) of section 167:
"Provided that where the accused person is a woman who is under eighteen years of age, the detention of such accused shall be authorised to be in the custody of a remand home or recognised social institution."
8.3. This provision is to safeguard the female child accused from being sent to prison. We endorse the above recommendation.
9.1. Section 173(1) mandates that every investigation of offence shall be completed without unnecessary delay. With a view to completing investigation of child rape offence speedily, the Bill (NCW) has suggested the addition of the following clause in sub-section (1) of section 173 at the end, namely:
"and where the offence is under [proposed by the National Commission for Women] sub-section (3) of section 376 of the Indian Penal Code, it shall be completed within three months from the date on which the information relating to the commission of offence was first recorded by the officer-in-charge of the police station."
On the completion of investigation, the officer-in-charge of the police station is required to send a report of the concerned magistrate stating the names of the parties, the nature of the information, the names of persons who appear to be acquainted with the circumstances of the case, whether any offence has been committed and if so, by whom, whether accused has been arrested, whether he has been released on his bond, and, if so, whether with or without sureties and whether he has been forwarded to custody of the magistrate under section 170.
9.2. The Bill (NCW) has suggested another amendment. In sub-section (2) of section 173 in clause (ii) after sub-clause (g) the following sub-clause shall be inserted:
"(h) Whether the report of the medical examination of the woman concerned has been attached where the investigation relates to an offence under sections 376, 376A, 376B, 376C or section 376D of the Indian Penal Code."
9.3. This amendment aims at ensuring that the police report in cases of rape and custodial rape includes the report of the medical examination. This is a salutary provision. We are of the opinion that the aforesaid amendments in section 173 be made.
10.1. Section 198 deals with prosecution of offences against marriage. Sub-section (6) of section 198, prohibits the court from taking cognizance of the offence of marital rape when the wife is under fifteen years of age, if more than one year has elapsed from the date of the commission of the officer.
10.2. The Bill (NCW) has increased the age limit of wife from "fifteen years" to "seventeen years".
10.3. We endorse this amendment subject to the modification that the age limit be raised to "eighteen years".
11.1. Section 309 mandates the court to conduct inquiry and trial expeditiously; it also empowers the court to grant adjournments after recording reasons therefor.
11.2. In order to prevent trials in rape cases including child rape from being unduly delayed, the Bill (NCW) has sought to prescribe a time-limit of two months from the date of commencement of the examination of witnesses, for completion of trial.
In sub-section (1) of section 309 of the Code, the following proviso shall be added, namely:
"Provided that when the inquiry or trial related to an offence under section 376 to 376E [proposed by the both inclusive] of the Indian Penal Code, judgment shall, as far as possible, be delivered within a period of two months from the date of commencement of the examination of witnesses."
12.1. Consequent on the recommendations of the Law Commission in its 84th report of Rape and Allied Offences, the Code of Criminal Procedure was amended by Criminal Law (Amendment) Act, 1983. Section 4 of the Amending Act incorporated new sub-sections (2) and (3) to section 327 introducing the concept of trial in camera for trial of the offences of rape including custodial rapes and also preventing the printing or publication of the trial proceedings except with the permission of the Court respectively.
12.2. The Bill (NCW) seeks to amend sub-section (2) and (3) in the following manner:
"In sub-section (2), for the words "shall be conducted in camera" the words "shall be conducted only by a woman judge or magistrate in camera" shall be substituted.
(b) For sub-section (3) the following sub-section shall be substituted, namely: "Where any proceedings are held under sub-section (2) it shall be lawful for any person to print or publish any matter in relation to such proceedings except with the previous permission of the court but the names and addresses of the parties to such proceedings shall not, in any case, be included in such matters."
12.3. While we agree with the spirit of the amendment in sub-section (2) that trial of rape cases including custodial rape offences be tried by woman judges or magistrates, to limit such trials only by woman judges or magistrates as a mandatory condition could, in our opinion, unduly delay trials resulting in loss of relevant evidence and trial memory of witnesses etc. Expeditious completion of trial whether by judges and magistrates of either sex should be the aim. Therefore, we recommend that the word "only" be substituted by the words "as far as practicable" in sub-section (2).
12.4. We approve of the amendment in sub-section (3) lifting the ban on printing or publication of rape trial proceedings but maintaining confidentiality of the names and addresses of the parties.
13.1. Under section 416 if a woman sentenced to death is found to be pregnant, the High Court shall order the execution of the sentence to be postponed and h- may if it thinks fit commute the sentence to imprisonment for life.
13.2. The Law Commission in its 135th Report on "Women in Custody" had recommended that commutation of death sentence to one of life imprisonment be made mandatory in case of convicted pregnant woman. Accordingly, the Commission suggested the amendment of section 416 on the following lines:1
"Section 416. If a woman sentenced to death is found to be pregnant, the High Court shall commute the sentence to one of imprisonment for life."
1.See para. 2.13.
13.3. We approve of this amendment which makes it mandatory for the High Court to commute the sentence of death to one of life imprisonment.
14.1. Section 437 deals with the grant of bail in cases of non-bailable offences. First proviso to sub-section (1) of section 437 confers discretion on the Court to release on bail persons committing grave offences with previous convictions, if they are under the age of sixteen years or woman or sick.
14.2. The Bill (NCW) seeks to amend the first proviso referred to above in the following manner:
"In sub-section (1) of section (1) of section 437 of the Code for the first proviso, the following proviso shall be substituted namely:
"Provided that where such person is a female, she shall ordinarily be released on bail unless the court considers it otherwise for special reasons to be recorded by it in writing."
14.3. We approve of this amendment. But it shall be second proviso.
In the first proviso the age of "sixteen years" be raised to "eighteen years".
The existing second proviso shall be third proviso and the existing third proviso shall be fourth proviso.
15.1. Section 432 empowers the appropriate government to suspend to execution of sentence or remit the whole or any part of the punishment to which an accused is sentenced. In criminal jurisprudence sentencing is a judicial function. Suspension or remission of sentence by the government does, not interfere with the order of conviction passed by the court: it only affects the execution of the sentence.
15.2 Section 433 empowers the appropriate government to commute different types of sentences as laid down therein.
15.3. In 1978 the Code of Criminal Procedure (Amendment) Act added a .new section 433A which is as follows:
"Section 433A: Notwithstanding anything contained in section 432, where a sentence of imprisonment for life is imposed on conviction of a person for an offence for which death is one of the punishments provided by law or where a sentence of death imposed on a person has been commuted under section 433 in to one of imprisonment for life such person shall not be released from prison unless he had served at least fourteen years of imprisonment."
15.4. The purport of this section is that "lifers" convicted of capital offences should undergo actual imprisonment for at least fourteen years. The objective of enacting this section seems to be to place restrictions on the government's power of remission of sentences under section 432. The experience of the working of section 432 in many States revealed that "lifers" of capital offences are granted remission under the relevant rules leading to their release in a few years.1
1. See Maru Ram v. Union of India, (1981) 1 SCC 107.
15.5. The constitutionality of this section was challenged but upheld by the Supreme Court in Maru Ram v. Union of India, Ibid and Ashok Kumar v. Union of India, (1991) 3 SCC 498.
15.6. The question whether women should not be exempted from the bar imposed by section 433A was examined by the Law Commission in its 135th Report on "Women in Custody". The Commission posed the issue thus1:
"In the case of a woman prisoner, sentenced to imprisonment for life (and therefore subjected to the stringent provisions of section 433A of the Code of Criminal Procedure, 1973) is it proper that the law should insist on the prisoner's undergoing minimum 14 years of imprisonment mandatorily laid down in section 433A?"
The Commission was of the view that rigorous application of this section to women prisoners would cause grave hardship. Therefore, the Commission recommended the removal of bar in case of women prisoners. Such removal would not mean that women 'lifers' would not have to undergo 14 years of imprisonment but it would only mean that the appropriate government could grant remission of sentence on the merits of each case under section 432.
Section 433A has been held not to apply to juveniles convicted under the Borstal schools Act applicable in Andhra Pradesh.2 Consequently, the Commission had recommended that a similar approach should be adopted in regard to women prisoners, particularly because long and continuous imprisonment of women prisoners might prejudicially affect the welfare and well-being of other members of their families.
1. See paras. 2.17, 2.18, 2.19.
2. See State of Andhra Pradesh v. Vallabhapuram Ravi, (1984) 4 SCC 410
15.7. We are also of the view that women prisoners be exempted from rigour of section 433A for the reasons set out above.
16. Special provisions on the law of arrest for protection of women are dealt with in Chapter IV.