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CODE OF CRIMINAL PROCEDURE (AMENDMENT) ACT 2008

Ministry of Law and Justice

Act nº 5 of 2009


  • Act nº 5 of 2009

Preamble

THE CODE OF CRIMINAL PROCEDURE (AMENDMENT) ACT, 2008

[Act No. 5 of 2009]

[7th January, 2009]

PREAMBLE

An Act further to amend the Code of Criminal Procedure, 1973.

Be it enacted by Parliament in the Fifty-ninth Year of the Republic of India as follows:--

Section 1. Short title, and commencement

(1) This Act may be called the Code of Criminal Procedure (Amendment) Act, 2008.

(2) It shall come into force on such 1date as the Central Government may, by notification in the Official Gazette, appoint; and different dates may be appointed for different provisions of this Act.

1. Effective from 31.12.2009 vide Notification No. S.O. 3313(E) dated 30.12.2009 except for Sections 5, 6 and 21(b).


Section 2. Amendment of section 2

In section 2 of the Code of Criminal Procedure, 1973(2 of 1974) (hereinafter referred to as the principal Act), after clause (w), the following clause shall be inserted, namely:--

'(wa) "victim" means a person who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged and the expression "victim" includes his or her guardian or legal heir;'.

Section 3. Amendment of section 24

In section 24 of the principal Act, in sub-section (8), the following proviso shall be inserted, namely:--

"Provided that the Court may permit the victim to engage an advocate of his choice to assist the prosecution under this sub-section.".

Section 4. Amendment of section 26

In section 26 of the principal Act, in clause (a), the following proviso shall be inserted, namely:--

"Provided that any offence under section 376 and sections 376A to 376D of the Indian Penal Code shall be tried as far as practicable by a Court presided over by a woman.".

Section 5. Amendment of section 41

In section 41 of the principal Act,--

(i) in sub-section (1), for clauses (a) and (b), the following clauses shall be substituted, namely:--

"(a) who commits, in the presence of a police officer, a cognizable offence;

(b) against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years whether with or without fine, if the following conditions are satisfied, namely:--

(i) the police officer has reason to believe on the basis of such complaint, information, or suspicion that such person has committed the said offence;

(ii) the police officer is satisfied that such arrest is necessary--

(a) to prevent such person from committing any further offence; or

(b) for proper investigation of the offence; or

(c) to prevent such person from causing the evidence of the offence to disappear or tampering with such evidence in any manner; or

(d) to prevent such person from making any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to the police officer; or

(e) as unless such person is arrested, his presence in the Court whenever required cannot be ensured, and the police officer shall record while making such arrest, his reasons in writing.

(ba) against whom credible information has been received that he has committed a cognizable offence punishable with imprisonment for a term which may extend to more than seven years whether with or without fine or with death sentence and the police officer has reason to believe on the basis of that information that such person has committed the said offence;";

(ii) for sub-section (2), the following sub-section shall be substituted, namely:--

"(2) Subject to the provisions of section 42, no person concerned in a non-cognizable offence or against whom a complaint has been made or credible information has been received or reasonable suspicion exists of his having so concerned, shall be arrested except under a warrant or order of a Magistrate.".

Section 6. Insertion of new sections 41A, 41B, 41C and 41D

After section 41 of the principal Act, the following new sections shall be inserted, namely:--

"41A. Notice of appearance before police officer-(1) The police officer may, in all cases where the arrest of a person is not required under the provisions of sub-section (1) of section 41, issue a notice directing the person against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence, to appear before him or at such other place as may be specified in the notice.

(2) Where such a notice is issued to any person, it shall be the duty of that person to comply with the terms of the 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.

41B. Procedure of arrest and duties of officer making arrest-Every police officer while making an arrest shall--

(a) bear an accurate, visible and clear identification of his name which will facilitate easy identification;

(b) prepare a memorandum of arrest which shall be--

(i) attested by at least one witness, who is a member of the family of the person arrested or a respectable member of the locality where the arrest is made;

(ii) countersigned by the person arrested; and

(c) inform the person arrested, unless the memorandum is attested by a member of his family, that he has a right to have a relative or a friend named by him to be informed of his arrest.

41C. Control room at districts(1) The State Government shall establish a police control room--

(a) in every district; and

(b) at State level.

(2) The State Government shall cause to be displayed on the notice board kept outside the control rooms at every district, the names and addresses of the persons arrested and the name and designation of the police officers who made the arrests.

(3) The control room at the Police Headquarters at the State level shall collect from time to time, details about the persons arrested, nature of the offence with which they are charged and maintain a database for the information of the general public.

41D. Right of arrested person to meet an advocated of his choice during interrogation -When any person is arrested and interrogated by the police, he shall be entitled to meet an advocate of his choice during interrogation, though not throughout interrogation.".

Section 7. Amendment of section 46

In section 46 of the principal Act, in sub-section (1), the following proviso shall be inserted, namely:--

"Provided that where a woman is to be arrested, unless the circumstances indicate to the contrary, her submission to custody on an oral intimation of arrest shall be presumed and, unless the circumstances otherwise require or unless the police officer is a female, the police officer shall not touch the person of the woman for making her arrest.".

Section 8. Substitution of new section for section 54

For section 54 of the principal Act, the following section shall be substituted, namely:--

"54. Examination of arrested person by medical officer(1) When any person is arrested, he shall be examined by a medical officer in the service of Central or State Government, and in case the medical officer is not available, by a registered medical practitioner soon after the arrest is made:

Provided that where the arrested person is a female, the examination of the body shall be made only by or under the supervision of a female medical officer, and in case the female medical officer is not available, by a female registered medical practitioner.

(2) The medical officer or a registered medical practitioner so examining the arrested person shall prepare the record of such examination, mentioning therein any injuries or marks of violence upon the person arrested, and the approximate time when such injuries or marks may have been inflicted.

(3) Where an examination is made under sub-section (1), a copy of the report of such examination shall be furnished by the medical officer or registered medical practitioner, as the case may be, to the arrested person or the person nominated by such arrested person.".

Section 9. Insertion of new section 55A

After section 55 of the principal Act, the following section shall be inserted, namely:--

"55A. Health and safety of arrested person -It shall be the duty of the person having the custody of an accused to take reasonable care of the health and safety of the accused.".

Section 10. Insertion of new section 60A

After section 60 of the principal Act, the following section shall be inserted, namely:--

"60A. Arrest to be made strictly according to the code - No arrest shall be made except in accordance with the provisions of this Code or any other law for the time being in force providing for arrest.".

Section 11. Amendment of section 157

In section 157 of the principal Act, in sub-section (1), after the proviso, the following proviso shall be inserted, namely:--

"Provided further that in relation to an offence of rape, the recording of statement of the victim shall be conducted at the residence of the victim or in the place of her choice and as far as practicable by a woman police officer in the presence of her parents or guardian or near relatives or social worker of the locality.".

Section 12. Amendment of section 161

In section 161 of the principal Act, in sub-section (3), the following provisos shall be inserted, namely:--

"Provided that statement made under this sub-section may also be recorded by audio-video electronic means.".

Section 13. Amendment of section 164

In section 164 of the principal Act, in sub-section (1), for the proviso, the following provisos shall be substituted, namely:--

"Provided that any confession or statement made under this sub-section may also be recorded by audio-video electronic means in the presence of the advocate of the person accused of an offence:

Provided further that no confession shall be recorded by a police officer on whom any power of a Magistrate has been conferred under any law for the time being in force.".

Section 14. Amendment of section 167

In section 167 of the principal Act, in sub-section (2),--

(a) in the proviso,--

(i) for clause (b), the following clause shall be substituted, namely:--

"(b) no Magistrate shall authorise detention of the accused in custody of the police under this section unless the accused is produced before him in person for the first time and subsequently every time till the accused remains in the custody of the police, but the Magistrate may extend further detention in judicial custody on production of the accused either in person or through the medium of electronic video linkage;";

(ii) for Explanation II, the following Explanation shall be substituted, namely:--

"Explanation II.-- If any question arises whether an accused person was produced before the Magistrate as required under clause (b), the production of the accused person may be proved by his signature on the order authorising detention or by the order certified by the Magistrate as to production of the accused person through the medium of electronic video linkage, as the case may be.";

(b) after the proviso, the following proviso shall be inserted, namely:--

"Provided further that in case of a woman under eighteen years of age, the detention shall be authorised to be in the custody of a remand home or recognised social institution.".