Report No. 154
6. Then we are left with the remaining clauses Nos. 4, 5, 7, 8, 10, 17, 19, 20, 28, 33, 36, 37, 41, 42.
6.1. Clause 4: This clause seeks insertion of a new section 25A empowering the State Government to establish the Directorate of Prosecution. We have already discussed this topic and have recorded our recommendations giving approval to this clause in Chapter III. However, we have indicated that the Government while appointing the Public Prosecutor and Additional Public Prosecutor shall, as far as practicable, appoint sufficient number of women Public Prosecutors so that they can effectively deal with the cases in respect of offences against women.
6.2. Clause 5: This clause seeks to amend section 29 of the Code to enhance the sentencing power of the Magistrate of the First Class to impose fine from five thousand rupees upto twenty five thousand rupees and Magistrate of the Second Class from one thousand rupees upto five thousand rupees. This proposal is made keeping in view the depreciation of the value of the rupee. Further, in the Questionnaire issued the opinions of the cross sections were sought and there was unanimous approval to enhance the sentencing power of the Magistrate.
6.3. Clause 7: This clause seeks to amend section 46 to empower the police officer concerned to use all means necessary to effect the arrest including causing death in the case of proclaimed offender under sub-section (4) of section 82. The new sub-section (4) is being added to section 46 to prohibit arrest of a woman after sunset and before sunrise except in unavoidable circumstances. We have considered the issue of arrest in detail in Chapter III.
We have opived that the Law Commission of India in its 135th Report on "Women in Custody" made such a recommendation and on that basis a new sub-section is being added to section 46 and we have approved the same. However, we recommend a proviso to section 46(1) regarding the arrest of a woman providing that where the woman is to be arrested and submission to custody on an oral intimation the arrest shall be presumed. However, we suggested that existing sub-section (2) will be numbered as sub-section (3) and sub-section (3) as sub-section (4).
6.4. Clause 8: Under this clause a new section 50A is sought to be inserted requiring the police to give information about the arrest of the person as well as the place where he is being held to any one who may be nominated by him for communicating information. In our discussion in Chapter III we have referred to the recommendation of the Law Commission of India in its 152nd Report on "Custodial Crime" which recommended insertion of a similar section. Section 50A is sought to be included on the same lines. But the section as recommended in the 152nd Report is more elaborate and section 50A sought to be inserted may be framed on those lines.
6.5. Clause 10: Under this clause a new section 53A is sought to be inserted providing for an examination of the person accused of rape by a registered medical practitioner. With a view to obtaining valuable evidence at the earliest such a provision will be an eminently desirable one.
6.6. Clause 17: On the recommendations made in the Chief Justice Conference and in view of the depreciation of the value of money it is proposed to amend section 125 of the Code to enhance the payment of maintenance. On this subject our recommendations are in Chapter XIII wherein we have recommended that the upper limit may be raised to Rs. 5.000, taking into consideration the unanimity expressed in the several workshops, and this change may be incorporated under clause 17.
6.7. Clause 29: This clause seeks to insert new section 164A in the Code to provide for a medical examination of the victim of rape by a registered medical practitioner. We have adverted to this clause in Chapter XIV on "Special Provisions in respect of Women". We have pointed out that the recommendation for insertion of new section 164A was made by the Law Commission of India in 1980 itself and therefore we have observed that insertion of this section is very much required.
6.8. Clause 20: A new sub-section (3A) is sought to be added to section 173 to enable the police to take note of the desire of the parties to compound offences even at the stage of investigation. In our Questionnaire we have mentioned about this clause and have also discussed in Chapter IX. There has been unanimity that such a provision is salutary one.
6.9. Clause 28: Under this clause it is proposed to amend section 260 to make summary trial of offences specified therein mandatory. We have considered the three procedures, namely summon cases, warrant cases and summary trial, in detail in Chapter VII. We have recommended the deletion of summons procedure and instead suggested summary trial of all cases punishable upto three years. The amendment sought to be made under this clause has to be modified on the lines of the recommendations made in this regard.
6.10. Clause 33: Under this clause amendment to the Table appended to sub-section (2) of section 320 of the Code is sought to be inserted. In Chapter IX we have dealt with amending of section 320 comprehensively and have made several recommendations and this clause may be redrafted in accordance with those recommendations.
6.11. Clause 36: Section 377 is sought to be amended to permit the filing of an appeal in the Court of Session instead of the High Court on the ground of inadequacy of sentence passed by a Magistrate. The amendment sought is a salutary one.
6.12. Clause 37: In order to guard against the arbitrary exercise of power and to reduce reckless acquittals, section 378 is sought to be amended providing an appeal against an order of acquittal passed by a Magistrate in respect of cognizable and non-bailable offence filed on a police report to the Court of Session as directed by the District Magistrate. In respect of all other cases filed on a police report, an appeal shall lie to the High Court against an order of acquittal passed by any other court other than the High Court, as directed by the State Government.
The power to recommend appeal in the first category is sought to be vested in the District Magistrate and the power in respect of second category would continue with the State Government. In our Workshops we have highlighted this issue and there was near unanimity in favour of incorporating such a provision.
6.13. However, the next question is whether an appeal or revision would lie, against an order passed by the Sessions Court in such appeal against acquittal or in an appeal for enhancement. The Bill is silent on this aspect. Section 376(b) lays down that where Sessions Court passes a sentence of 3 months no appeal would lie, but this would apply to a trial before that court.
But a similar limitation can be made applicable to the orders passed by Sessions Court in the appeals filed under the proposed amendment of sections 377 and 378. Consequently, we suggest a further amendment by way of a proviso to clauses (a) and (c) of section 386 to the effect that where the sentence passed by sessions Court does not exceed six months no appeal would lie.
6.14. Clause 41: A new section 436A, be inserted in the Code providing for release of under-trial prisoners who are in jail for a long period. We have discussed this aspect in great details in Chapter V dealing with bail and anticipatory bail After an in-depth study dealing with bail we have recommended certain changes in section 437 etc. Regarding the inclusion of section 436A, we recommended certain changes in para. 10.5 of that chapter and the new section proposed under this clause may accordingly be modified.
6.15. Clause 42: This clause seeks to amend section 437 and in the chapter dealing with the bail we have adverted to this aspect and in para. 11.1.5 we have made some recommendations. Paragraphs 11.1.3 to 11.1.5 may be referred to and the changes may accordingly be incorporated in this clause.
6.16. Pursuant to the changes suggested above, we are of the view that the relevant clauses be modified accordingly.
6.17. In the earlier chapters, we have dealt with some more aspects and have made recommendations for incorporating certain new provisions which may also be included in the Bill in a comprehensive manner before the same comes up before the Parliament.