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Report No. 177

Relevant provisions of the Code of Criminal Procedure (Amendment) Bill, 1994, being Bill No.35 of 1994 (introduced in Rajya Sabha on 9th May, 1994)

In the year 1994, the Government of India (Ministry of Home Affairs) introduced a Bill to amend the Criminal Procedure Code. As many as 46 provisions in the Code were sought to be amended in addition to certain entries in the First and Second Schedules. A few provisions of the Indian Penal code were also sought to be amended. The Law Commission understands that the Bill was referred to the Parliamentary Committee on Home Affairs, which has indeed submitted its Report thereon on February 19, 1996. It has offered its comments on the several proposals contained in the Bill which will be referred, insofar as they are relevant, hereinafter. The Bill has not been passed either by Rajya Sabha or by Lok Sabha so far.

Among other provisions, the Bill proposes to amend sections 45 and 46 besides inserting a new section 50A. It also seeks to amend section 53 and seeks to insert a new section 53A. Section 54 is also sought to be amended in addition to inserting a new section 54A. (These amendments are proposed in chapter V of the Code which deals with arrest of persons.) The Bill also seeks to amend certain provisions in chapter XII which deals with "information to the police and their powers to investigate". Only two sections, namely sections 173 and 176 are proposed to be amended. The First Schedule is also sought to be amended as mentioned earlier.

Section 45 says that members of the armed forces of the Union shall not be arrested under sections 41 to 44 except after obtaining the consent of the Central Government. Sub-section (2) of section 45 empowers the State government to extend the provisions of sub-section (1) "to such class or category of the members of the force charged with the maintenance of public order" as may be specified in the notification. Section 6 of the Amendment Bill seeks to add the words "or to such other public servants" after the words "members of the force". (The Parliamentary Committee has disapproved this proposal. We are in respectful agreement with the opinion of the Parliamentary Committee.)

Section 46 prescribes the manner in which an arrest shall be made. Subsection (3) is sought to be amended by adding certain words. We shall refer to sub-section (3) at a later stage. A new sub-section, sub-section (4) is also sought to be inserted in section 46 to the following effect:

"(4) Save in exceptional circumstances, no woman shall be arrested after sunset and before sunrise, and where such exceptional circumstances exist, the police officer shall by making a written report, obtain the prior permission of his immediate superior officer for effecting such arrest or, if the case is one of extreme urgency and such prior permission cannot be obtained before making such arrest, he shall, after making the arrest, forthwith report the matter in writing to his immediate superior officer explaining the urgency and the reasons for not taking prior permission as aforesaid and shall also make a report to the Magistrate within whose local jurisdiction the arrest had been made."

(The Parliamentary Committee has opined that the arrest of a woman can be made only by a woman police officer, if the arrest is made after sun-set and before sun-rise and that in every case, permission of the F.C.J. Magistrate should be obtained before arresting a woman. We respectfully commend the amendment, as modified by the Parliamentary Committee.)



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