Critical Analysis on Substitution of some sections of Cr Pc, Evidence Act and Indian Penal Code
Biswanath Bhattacharya
July 4, 2024, 08:54:57
The Criminal Procedure Code (Cr Pc), the Indian Evidence Act (IEA), and the Indian Penal Code (IPC) are the three main pillars of the criminal justice system in India. They provide the framework for investigating, trial, and punishing various offences. However, these laws are dynamic and have undergone several amendments and substitutions to keep pace with the changing socio-legal scenario. Some of these changes have been welcomed as progressive and necessary, while others have been criticized as regressive and arbitrary. In this document, I will critically analyze the substitution of some sections of the Cr Pc, the IEA, and the IPC and examine their implications for the rights and liberties of the accused, the victims, and society.
Substitution of some sections of the Cr Pc
The Cr Pc lays down the procedure for the conduct of criminal proceedings, from the registration of a case to the execution of a sentence. It also defines the powers and duties of various authorities involved in the process, such as the police, the magistrates, and the courts. Some of the sections of the Cr Pc that have been substituted are:
* Section 41: This section deals with the power of the police to arrest a person without a warrant. It was substituted by the Code of Criminal Procedure (Amendment) Act, 2008, which introduced certain safeguards to prevent the misuse of this power. The amended section requires the police to record the reasons for the arrest, inform the person of his rights, and produce him before a magistrate within 24 hours. It also mandates the police to prepare a checklist of the grounds of arrest and the evidence against the person, and send a copy of it to the magistrate. The substitution of this section was aimed at protecting the rights of the accused and preventing arbitrary and illegal arrests.
* Section 164: This section deals with the recording of confessions and statements by a magistrate. It was substituted by the Code of Criminal Procedure (Amendment) Act, 2010, which made it mandatory for the magistrate to record the confession or statement in audio-video format, in addition to the written format. The amended section also requires the magistrate to ensure that the person is not under any inducement, threat, or pressure to make the confession or statement, and that he is aware of the consequences of doing so. The substitution of this section was aimed at ensuring the voluntariness and reliability of the confessions and statements, and preventing their fabrication or coercion.
* Section 309: This section deals with the power of the court to adjourn the trial. It was substituted by the Code of Criminal Procedure (Amendment) Act, 2005, which imposed a limit on the number and duration of adjournments that can be granted by the court. The amended section states that the court shall not adjourn the trial for more than three times, and each adjournment shall not exceed 15 days, except in exceptional circumstances. The substitution of this section was aimed at expediting the trial and reducing the pendency of cases.
Substitution of some sections of the IEA
The IEA provides the rules for the admissibility and relevance of evidence in criminal and civil cases. It also defines the various types of evidence, such as oral, documentary, primary, secondary, direct, and circumstantial. Some of the sections of the IEA that have been substituted are:
* Section 32: This section deals with the admissibility of dying declarations, i.e., statements made by a person who is about to die, relating to the cause of his death or the circumstances of the transaction that resulted in his death. It was substituted by the Indian Evidence (Amendment) Act, 2002, which expanded the scope of this section to include statements made by a person who is in imminent danger of death, even if he survives. The amended section also allows the admissibility of dying declarations made in any form, such as oral, written, or electronic. The substitution of this section was aimed at enhancing the probative value of dying declarations and facilitating their proof.
* Section 53A: This section deals with the admissibility of evidence of the character or previous sexual experience of the victim or the accused in cases of rape or sexual assault. It was substituted by the Criminal Law (Amendment) Act, 2013, which inserted a new section to prohibit the admissibility of such evidence, unless it is relevant to the facts in issue. The amended section also states that the consent of the victim shall not be presumed by reason of her past sexual history or reputation. The substitution of this section was aimed at protecting the dignity and privacy of the victim and preventing the victim-blaming or character assassination.
* Section 65B: This section deals with the admissibility of electronic records, such as emails, SMS, digital images, etc. It was substituted by the Information Technology (Amendment) Act, 2008, which modified the conditions for the admissibility of such records. The amended section states that any electronic record can be proved by a certificate issued by a person occupying a responsible position in relation to the operation of the electronic device or the management of the electronic record. The substitution of this section was aimed at simplifying the procedure for the admissibility of electronic records and promoting the use of digital evidence.
Substitution of some sections of the IPC
The IPC defines the various offences and prescribes the punishments for them. It also lays down the general principles of criminal liability, such as mens rea, actus reus, causation, etc. Some of the sections of the IPC that have been substituted are:
* Section 375: This section defines the offence of rape. It was substituted by the Criminal Law (Amendment) Act of 2013, which widened the definition of rape to include not only penile-vaginal penetration but also penile-oral, penile-anal, finger-vaginal, finger-anal, and object-vaginal penetration. The amended section also increased the minimum age of consent from 16 to 18 years, and recognized the rape of a woman by her husband as an offence, if she is below 18 years. The substitution of this section was aimed at recognizing the various forms of sexual violence and enhancing the protection of women's bodily integrity and autonomy.
* Section 377: This section criminalizes unnatural offences, i.e., carnal intercourse against the order of nature with any man, woman, or animal. It was substituted by the Supreme Court of India in the landmark judgment of Navtej Singh Johar v. Union of India, 2018, which decriminalized consensual homosexual acts between adults. The court held that section 377 violated the fundamental rights of privacy, dignity, equality, and non-discrimination of the LGBT community and that sexual orientation is an innate and immutable aspect of one's identity. The substitution of this section was aimed at affirming the constitutional values of liberty, fraternity, and justice, and upholding the right to love and self-expression.
* Section 498A: This section criminalizes cruelty by a husband or his relatives towards a married woman. It was substituted by the Supreme Court of India in the landmark judgment of Rajesh Sharma v. State of UP, 2017, which issued certain guidelines to prevent the misuse of this section. The court directed that no arrest or coercive action should be taken against the accused without verifying the allegations and that a family welfare committee should be constituted in every district to examine the complaints and submit a report to the magistrate. The court also stated that the bail applications of the accused should be disposed of expeditiously and that no personal appearance of the parties should be required unless necessary. The substitution of this section aimed to balance the rights of the women and the accused and ensure the fair and speedy disposal of the cases.
The substitution of some sections of the Cr Pc, the IEA, and the IPC reflects the dynamic and evolving nature of criminal law in India. It also shows the attempts of the legislature and the judiciary to respond to society's changing needs and demands and uphold constitutional values and principles. However, substituting these sections also poses specific challenges and controversies, such as the new provisions' implementation, interpretation, and impact. Therefore, it is essential to analyze the substitution of these sections critically and evaluate their merits and demerits to ensure the effective and efficient functioning of the criminal justice system. ( In consultation with an Advocate of Repute )
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