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Report No. 177

Chapter XI

Certain recommendations for safety and well-being of detainee, amending section 172, separate investigating and prosecuting agency and the Code of Criminal Procedure (Amendment) Bill. 2002

In para 3.9 of the Consultation Paper a proposition was put forward that ensuring the safety and well-being of the detainee is the responsibility of the detaining authority. It would be sufficient to reproduce the reasons in support of the said proposal. It reads thus:

"It should also be provided by law expressly that once a person is arrested, it is the responsibility of the arresting and detaining authority to ensure the safety and well being of the detainee. The recommendation of National Police Commission regarding mandatory medical examination of the arrested person deserves implementation.

In this connection, the decision of A.P. High Court in Challa Ramkrishna Reddy v. State of A.P.(AIR 1989 AP 235.- which has recently been affirmed by the Supreme Court in State of A.P. v.Challa Ramkrishna Reddy AIR 2000 SC 208.- and the examples given therein, wherein the State would be liable for damages for the negligent or indifferent conduct of police/jail authorities should be kept in mind. To put briefly, take a case where a person is arrested for simple theft or simple rioting; he is a heart patient; he is not allowed to take his medicines with him at the time of his arrest and no medicines are provided to him in spite of his asking and he dies.

Or a case, where such a person (though carrying his medicines) suffers a heart attack and no reasonably prompt steps are taken for providing medical aid to him by the concerned authorities and he dies. It is obvious that had he not been arrested, his family and friends would have taken care of him. Should he die for want of medical help, only because he has been arrested and detained for a minor offence. It would be too big a punishment. In such cases, State would be liable for damages."

We affirm the said proposal. It is not necessary to elucidate the same since the principle has been affirmed by the Supreme Court. This aspect is covered by the amendments proposed by us in the accompanying Bill.

In para 3.10 of the Consultation Paper, a proposal was put forward to the effect that a custody record should be maintained at every police station. Some police officials opposed this proposal on the ground that there are already adequate provisions providing for maintaining a record of the persons arrested and the progress of investigation and therefore it is unnecessary to introduce yet another record under the name "custody record". In the light of the recommendations made elsewhere in this report, we do not propose to pursue this proposal.

In para 3.11 of the Consultation Paper, the Commission had dealt with the tortious liability of the State and to the unsatisfactory situation arising from the decision of the Supreme Court in Kasturilal v. State of U.P. (AIR 1965 SC 1039). The subsequent decisions have not improved the situation. On this aspect, the National Commission to Review the Working of the Constitution (NCRWC) has prepared a Consultation Paper discussing in detail the several aspects of the said problem. It is understood that a Final report is also being prepared on the topic by the said Commission. We fully agree with the approach adopted by NCRWC and we are sure that valuable and useful recommendations would be put forward by the said Commission on this topic.

The last proposal contained in para 3.12 of the Consultation Paper speaks of strict compliance with section 172 CrPC by the police officers and the duty of the court to ensure such compliance. Besides calling for strict compliance with section 172, the Consultation Paper also suggested an amendment to section 172. Since this proposal has not been opposed by anyone, we reiterate the same. The relevant proposal in para 3.12 reads thus:

Sub-section (1) of section 172 of the Code of Criminal Procedure requires that (1) "every police officer making an investigation under this chapter shall day-by-day enter his proceedings in the investigation in a diary setting forth the time at which the information reached him, the time at which he began and closed his investigation, the place or places visited by him and a statement of the circumstances ascertained through his investigation". Inasmuch as such diary would also record and reflect the time, place and circumstances of arrest, it is necessary that the provisions of this sub-section should be strictly complied with.

In this behalf, however, it would be relevant to notice the following observations of the Supreme Court in Shamshul Kanwar v. State (AIR 1995 SC 1748) where the court pointed out the vagueness prevailing in the country in the matter of maintaining the diary under section 172. The court referred, in the first instance, to the fact that in every State there are Police Regulations/Police Standing Orders prescribing the manner in which such diaries are to be maintained and that there is no uniformity among them.

The court pointed out that in some States like Uttar Pradesh, the diary under section 172 is known as 'special diary' or 'case diary' and in some other States like Andhra Pradesh and Tamil Nadu, it is known as 'case diary'. The basis for distinction between 'special diary' and 'case diary', the court pointed out, may owe its origin to the words "police diary or otherwise" occurring in section 162 CrPC. The court also pointed out that the use of expression "case diary" in A.P. Regulations and in the Regulations of some other States like J&K and Kerala may indicate that it is something different than a "general diary".

In some other States there appear to be Police Standing Orders directing that the diary under section 172 be maintained in two parts, first part relating to steps taken during the course of investigation by the police officer with particular reference to time at which police received the information and the further steps taken during the investigation and the second part containing statement of circumstances ascertained during the investigation which obviously relate to statements recorded by the officer in terms of section 161 and other relevant material gathered during the investigation.

In view of this state of affairs, the Supreme Court suggested a legislative change to rectify this confusion and vagueness in the matter of maintenance of diary under section 172. It is therefore appropriate that section 172 be amended appropriately indicating the manner in which the diary under section 172 is to be maintained, its contents and the manner in which its contents are communicated to the court and the superior officers, if any.

The significance of the case diary lies in its relevance as a safeguard against unfairness of police investigation. (The Amendment should also clarify whether case diary is different from General Diary and, if so, how should it be maintained.) (See the decision of the Delhi High Court in Ashok Kumar v. State (1979 Cr.L.J. 1477)). Such an amendment would also go to ensure that the time, place and circumstances of the arrest of an accused are also properly recorded and reflected by such record, which is indeed a statutory record."

Keeping in mind the recommendation in another Report of the Law Commission (178th Report on Misc. Amendments), which, inter alia, recommends amendment of section 162 of CrPC, and consistent with it, we are suggesting addition/insertion of certain words in sub-section (1) of section 172.

Lastly, we may refer to the idea, repeatedly put forward by several participants in the Seminar, to separate the investigating and prosecuting agency from the law and order agency. It has been suggested that investigation of crime is a specialized process requiring a good amount of patience, expertise, training and a good understanding of the legal position concerning the subject-matter of investigation.

It is also pointed out that in the matter of economic offences and more so on account of technological advances, the investigation has become a skill by itself requiring knowledge of accountancy, computer operations, stock-market and so on, and that the said job ought not to be entrusted to the police engaged in maintenance of law and order. We are fully in agreement with this proposal but we are not going into the said subject ourselves for the reason that this aspect has been elaborately dealt with by this Commission in its 154th Report on Criminal Procedure Code. Chapter II deals with establishment of a separate investigating agency.

It explains the need for separation of investigating agency from the police staff engaged in the maintenance of law and order. It refers to the earlier recommendations of the Law Commission in its 14th Report, the recommendations of the National Police Commission, and records its own reasons, as many as seven in number, for accepting and implementing this idea. Their recommendation is contained in para nine of the said chapter:

"9. We recommend that the police officials entrusted with the investigation of grave offences should be separate and distinct from those entrusted with the enforcement of law and order and other miscellaneous duties. Separate investigating agency directly under the supervision of a designated Superintendent of Police be constituted. The hierarchy of the officers in the investigating police force should have adequate training and incentives for furthering effective investigations. We suggest that the respective Law and Home Departments of various State Governments may work out details for betterment of their conditions of service.

The officials of the investigating police force be made responsible for helping the courts in the conduct of cases and speedy trial by ensuring timely attendance of witnesses, production of accused and proper coordination with prosecuting agency. Other necessary steps should also be taken for promoting efficiency in investigation. Accordingly, we recommend that necessary changes in the Police Acts, both Central and State, Police Regulations, Police Standing Orders, Police Manuals, be made by the Home Department in consultation with the Law Departments of State Governments."

Chapter III (of the 154th Report) deals with Independent Prosecuting Agency. Here too the Law Commission referred to its earlier Reports, namely, 14th and 41st Reports, to the recommendations of the National Police Commission and the feedback it received in the several workshops it conducted on the subject of Criminal Procedure Code. Relevant observations in certain decisions of the courts emphasizing the desirability of insulating the prosecuting agency from the investigating agency are also referred to.

The final recommendation is for establishment of a Directorate of Prosecution. The Report deals with the mode of appointment of Public Prosecutors and Assistant Public Prosecutors in the course of its discussion. It also touches upon the desirability of permitting the private complainant to engage his own lawyer to conduct the prosecution where the court finds that the public prosecutor is not effectively discharging his duties thereby subverting the process of law and justice.

We may refer in this connection to the practice of police department (in some States) recruiting lawyers to act as prosecuting officers in the courts of Magistrates. The lawyers so recruited become employees of the department and therefore subject to their instructions and directions. This practice too may have to be reviewed. We reiterate and commend the reasoning and recommendations contained in chapters II and III of the 154th Report of Law Commission and recommend their acceptance by the appropriate authorities.

In order to concretize our recommendations in the legislative form, we have appended The Code of Criminal Procedure (Amendment) Bill, 2001 (Annexure I) to this Report. There are, however, certain other recommendations in this Report (e.g. establishment of separate investigating agency and an independent prosecuting agency), which have not been concretized in the accompanying Bill.

They are essentially administrative measures.

We recommend accordingly.

Justice B.P. Jeevan Reddy

Justice M.Jagannadha Rao
Vice Chairman

Dr. N.M. Ghatate

Mr. T.K.Viswanathan

Dated: 14 .12.2001

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