The express purpose and goal of bringing any new law, or amending an existing one, is to bring changes which would further ensure fairness and efficacy in the system of delivering justice. It cannot be done to just create some impression of removing its colonial legacy by merely changing the names of legislation and bestowing more powers to the police system.
In the present set-up, the police already have sufficient powers to undertake the process it wants. It is naturally mighty, replete with discretionary powers, and operates without any visible and practical accountability.
We need to look at these amendments with that lens now that the central government has undertaken this mammoth step to overhaul India’s criminal laws. I also see a few core elements that require the urgent attention of our lawmakers.
No course correction
For instance, after any crime, the first step is the registration of an FIR. Now, despite electronic means being introduced to register complaints, the said communication will have to be signed by the complainant within three days. This procedure needs correction to ensure that the complaint at a police station gets numbered and registered smoothly.
Considering the resistance people face in authorities registering complaints, the proposed new process is completely vague. For that, every state must have a centralised software system with Election ID, Aadhar, Tax Return Numbers, Passport etc. enabled methods, which can do away with requirement of signature before the registration and action on an electronic complaint.
In our existing system, if they so desire, the police are equipped with an extra legal process of conducting ‘preliminary enquiry’ before registration of a complaint into an FIR. This practice, however, is exercised arbitrarily. Now, after filing of complaint, a ‘preliminary enquiry’ for offences — punishable for three years or more but less than seven years, irrespective of whether it is cognizable or not — has been proposed.
By exercising this power, the police can use a period of 14 days to see whether the investigation is liable to be proceeded or not depending on their subjective prima facie satisfaction. I feel this is meant to frustrate the clarification and direction issued by five-judges of the Supreme Court in 2013, which stated that upon receipt of a complaint of cognizable nature, the police officer is under immediate duty to register the FIR, and if it fails to do so, action must be taken against erring officers.
The court had also rightly explained that a preliminary enquiry shall not only verify the veracity of the received information, but also ascertain whether the information revealed is a cognizable offence. The exceptions, as the court felt, are the cases like matrimonial disputes, commercial offences, medical negligence and cases related with corruption. But today in a culture where a bulldozer is being dispatched to demolish an accused’s home without prior notice because the resident (not necessarily the owner) is a suspect in a crime, this concept of preliminary enquiry is a regressive provision.
Presently, with regards to non-registration of an FIR, one can approach the magistrate under Section 156 (3) of CrPC, and he or she is free to take a view on it, depending upon the material produced by the complainant. Now, with the amendment, the role of the police has been introduced before the magistrate passes an order for investigation.
In fact, once an FIR is registered and the investigation commences, the proposal seeks to resolve the issue as to whether the 15-day period of being in police custody, should be only within the first 15 days of remand, or spanning over the entire period of investigation of 60 or 90 days.
Moreover, a few days before the introduction of the bill, this issue was referred by the Supreme Court in the Senthil Balaji Case for resolution by a larger bench. There is no dispute that in the existing code as well as the amendment proposed, the maximum number of days to be spent in police custody remains 15 days.
In any case, at the stage of filing the chargesheet after conclusion of investigation, the most abused practice is to file an incomplete chargesheet, or file one against those who are arrested, and not allow the trial to proceed under the pretext of pending investigation.
In that process, years can get wasted at the behest of prosecution while keeping the accused in custody. This scuttles the concept of default bail as reflected in the recent judgement of the Supreme Court in view of the prosecution’s repeated attempts to file supplementary chargesheets. The litmus test of such a system is the ratio of conviction in such cases.
A person who is unjustly and groundlessly detained or arrested is entitled to compensation. It must be fair and reasonable. However, in our existing code, it has remained Rs 1,000 since 2005, and in the proposed amendment, it still remains Rs 1,000. At a time when driving without a seat belt ensures a fine of Rs 1,000, the compensation must be increased to at least Rs 1 lakh.
We need to acknowledge the fact that justice is not delivered only by courts and magistrates. A major component of delivering justice in the criminal justice process starts from the registration of FIRs, and efficient steps by the police, before reaching the doorsteps of the courts to seek final relief.
Our new codes need to ensure justice before the cases are submitted in courts. This will not happen with vast police powers retained from colonial legislation. The amendments proposed to retain almost all provisions which support police powers without doing actual police reforms.
The need for police reforms cannot be overstated. Irrespective of the regime occupying the power system, no effective steps towards police reforms and fixing their accountability have been taken despite constant reminders of the Supreme Court.
This article was published in The Times of India on August 31st, 2023