Report No. 152
14.4. Code of Criminal Procedure, 1973.-
The Commission recommends that section 41(1) of the Code of Criminal Procedure, 1973 be amended and a new section 41(1A) be inserted in the Code of Criminal Procedure, 1973 on the following lines:
"41(1A) A police officer arresting a person under clause (a) of sub-section (1) of this section must be reasonably satisfied, and must record such satisfaction, relating to the following matters:-
(a) the complaint, information or suspicion referred to in that clause, is not only in respect of a congnizable offence having been committed, but also in respect of the complicity of the person to be arrested, in that offence;
(b) arrest is necessary in order to bring the movements of the person to be arrested under restraint, so as to inspire a sense of security in the public or to prevent the person to be arrested from evading the process of the law or to prevent him from committing similar offences or from indulging in violent behaviour in general."
14.5. It is further recommended that recommendation Nos. 1 and 2 made in the Law Commission of India's 135th Report (Women in Custody) which relate to the arrest of women, should be implemented.
14.6. The Commission recommends that a new section 41-A should be inserted in the Code of Criminal Procedure, 1973 on the following lines:-
"41A. Notice of appearance.-Where the case falls under clause (a) of subsection (1) of section 41, the police officer may, instead of arresting the person concerned, issue to him a notice of appearance requiring him to appear before the police officer issuing the notice or at such other place as may be specified in the notice and to co-operate with the police officer in the investigation of the offence referred to, in clause (a) of sub-section (1) of section 41.
(2) Where such a notice is issued to any person, it shall be the duty of that person to comply with the terms of that notice.
(3) Where such person complies and continues to comply with the notice, he shall not be arrested in respect of the offence referred to in the notice unless, for reasons to be recorded, the police officer is of the opinion that he ought to be arrested.
(4) Where such person, at any time, fails to comply with the terms of the notice, it shall be lawful for the police officer to arrest him for the offence mentioned in the notice, subject to such orders as may have been passed in this behalf by a competent court."
14.7. The Commission is of the view that there is a need to insert a new section 50A after section 50 in the Code of Criminal Procedure, 1973 on the following lines:-
"50A (1) Whenever a person is arrested by a police officer, intimation of the arrest shall be immediately sent by the police officer (along with intimation about the place of detention) to the following person:-
(a) a relative or friend of other person known to the arrested person, as may be nominated by the arrested person;
(b) failing (a) above, the local legal aid committee.
(2) Such intimation shall be sent by telegram or telephone, as may be convenient, and the fact that such intimation has been sent shall be recorded by the police officer under the signature of the arrested person.
(3) The police officer shall prepare a custody memo and body receipt of the person arrested, duly, signed by him and by two witnesses of the locality where the arrest has been made, and deliver the same to a relative of the person arrested, if he is present at the time of arrest, or, in his absence, send the same along with the intimation of arrest to the person mentioned in (1) above.
(4) The custody memo referred to in (3) above shall contain the following particulars:-
(i) name of the person arrested and father's name or husband's name;
(ii) address of the person arrested;
(iii) date, time and place of arrest;
(iv) offence for which the arrest has been made;
(v) property, if any, recovered from the person arrested and taken into charge at the time of the arrest; and
(vi) any bodily injury which may be apparent at the time of arrest.
(5) During the interrogation of an arrested person, his legal practitioner shall be allowed to remain present.
(6) The police officer shall inform the person arrested, as soon as he is brought to the police station, of the contents of this section and shall made an entry in the police diary about the following facts:-
(a) the person who was informed of the arrest;
(b) the fact that the person arrested has been informed of the contents of this section; and
(c) the fact that a custody memo has been prepared, as required by this section."
14.8. The Commission is of the opinion that in addition to the recommendations contained in Chapter 4 of the 84th Report of the Law Commission, section 54 of the Code of Criminal Procedure be amended on the following lines:
"54. Examination of arrested person by medical practitioner.-When a person who is arrested, whether on a charge or otherwise, alleges at any time during the period of his detention in custody that the examination of his body may afford evidence which will disprove the commission by him of any offence; or is produced before a Magistrate, the Magistrate shall inform the accused so arrested, about his right of medical examination which will establish the commission by any other person including the public servant of any offence against his body committed during the custody and record in writing about the fact of communication of such right to the accused who exercised this right without any coercion or fear of any public servant having effected his arrest or without the presence of such public servant, the Magistrate shall if so alleged by the arrested person, unless the Magistrate considers that the allegation is made for the purpose of vexation or delay or for defeating the ends of justice get the examination of the body of such person by a registered medical practitioner in the manner prescribed hereunder and mention the following particulars:-
(a) The examination of the accused victim shall be conducted by a Registered Medical Practitioner or through a Government Hospital available, as the Magistrate may direct.
(b) The Registered Medical Practitioner to whom such person is forwarded shall without delay examine him/her and prepare a report and specifically record the following details:
(i) the name and address of the victim and of person by whom he was brought;
(ii) the age of the victim;
(iii) injuries external/internal if any, on the person;
(iv) general mental condition of the victim;
(v) other material particulars and any other relevant details.
(c) The report of the said examination shall precisely state the reasons for such conclusion arrived at.
(d) The exact time of commencement and completion of examination shall also be noted in the report and the Registered Medical Practitioner shall without delay forward the report to the Magistrate who shall thereafter act in accordance with the provisions contained in the Code of Criminal Procedure."
14.9. With a view to having a greater and effective compliance of the various safeguards, the Commission recommends that section 57A be inserted in the Code of Criminal Procedure, 1973 on the following lines:
"57A. Duty of Magistrate to verify certain facts-When a person arrested without warrant is produced before the Magistrate, the Magistrate shall, by inquiries to be made from the arrested person, satisfy himself that the provisions of sections have been complied with (section relating to safeguards in connection with arrest, rights on arrest, etc. to be entered) and also inquire about, and record, the date and time of arrest."
14.10. If the police officer refuses to record the FIR, the aggrieved person should have a right to file a petition: (i) before the Chief Judicial Magistrate in the case of custodial injury or torture and all custodial crimes other than killing, and (ii) before the Sessions Judge in the case of death in custody. Accordingly, the Commission recommends that a new section 154A be inserted in the Code of Criminal Procedure, 1973, on the following lines:-
"154A. Notwithstanding anything contained in section 154
(1) Any person (including Legal Aid, Centre or NGO, or any friend or relative) aggrieved by a refusal on the part of an officer in charge of a police station to record the information referred to in sub-section (1) of that section, in cases relating to custodial offences, may file a petition giving the substance of such information-
(a) before the Chief Judicial Magistrate , in case of custodial offences other than those involving death of the victim; or
(b) before the Sessions Judge, in cases of custodial offences involving death of the victim.
(2) The Chief Judicial Magistrate or the Sessions Judge, if satisfied, on a preliminary enquiry that there is a prima facie case, may himself hold enquiry into the complaint or direct some other Judicial Magistrate or Additional Sessions Judge, as the case may be, to hold enquiry and thereupon direct the ministerial officer of the Court to make a complaint to the competent court in respect of offence that may appear to have been committed.
(3) Notwithstanding anything contained in section 190 of the Code of Criminal Procedure on a complaint made under sub-section (2) the competent court shall take cognizance of the offence and try the same.
(4) The Chief Judicial Magistrate or the Sessions Judge may obtain the assistance of any public servant or authority as they made may deem fit in holding the enquiry under sub-section (2)."
14.11. The Commission recommends that after the existing Proviso contained in section 160(1) of the Code of Criminal Procedure, 1973, a second proviso be added, on the following lines:-
"Provided that no person shall be required to attend at any place other than his or her dwelling place unless, for the reasons to be recorded in writing by the investigating officer it is necessary to do so; and every such person shall be so summoned by an order in writing."
14.12. The Commission recommends that below section 197(1) of the Code of Criminal Procedure, 1973 an Explanation should be added on the following lines:
"Explanation.-For the avoidance of doubts, it is hereby declared that the provisions of this section do not apply to any offence committed by a judge or public servant, being an offence against the human body, committed in respect of a person in his custody, nor to any other offence constituting an abuse of authority."
14.13. In order to provide separately for compensation for custodial offences, the Commission recommends insertion of a new section 357A in the Code of Criminal Procedure, 1973, on the following lines:-
"Section 357A: Compensation in custodial offences.-(1) Notwithstanding the provisions of section 357, where the court convicts a public servant of an offence resulting in death or bodily injury, being an offence constituted by an act of such public servant against a person in his custody, the provisions of this section shall apply.
(2) The Court, when passing judgment in any case to which this section applies, shall order that the Government in connection with the affairs of which such public servant was employed at the time when such act was committed, shall be liable jointly and severally with such public servant to pay, by way of compensation such amount as may be specified in the order.
(3) An order for payment of compensation under this section may also be made by an appellate court or by the High Court or Court of Session when exercising its powers of revision.
(4) While rewarding compensation in any subsequent suit relating to the same matter, the civil court shall take into account any sum paid or recovered as compensation under this section.
(5) The amount awarded under this section shall not be less than:
(a) Rupees twenty five thousand in case of bodily injury, not resulting in death;
(b) Rupees one lakh, in case of death;
(6) In fixing the amount of compensation under this section, the court shall, subject to the provisions of sub-section (5), take into account all relevant circumstances, including (but not necessarily limited to) the following:
(a) the type and severity of the injury suffered by the victim;
(b) the mental anguish suffered by the victim;
(c) the expenditure incurred or likely to be incurred on the treatment and rehabilitation of the victim;
(d) the actual and projected earning capacity of the victim and the impact of its loss on the persons entitled to compensation and other members of the family;
(e) the extent, if any, to which the victim himself contributed to the injury;
(f) the expenses incurred in the prosecution of the case.
(7) In case of death or permanent disablement of the victim, the court may take into account the estimated annual income of the victim as multiplied by the number of years of his estimated span of life.
(8) Pending final determination of the proceeding, the court may award, by way of interim relief, such compensation as it may think proper in the circumstances of the case at any stage of the case, even before judgment of conviction is passed.
(9) The Government may recover any amount paid by it as compensation under this section wholly or partly as it may think proper, from the delinquent public servant."