STATE VIGILANCE AND ANTI CORRUPTION BUREAU,
HIMACHAL PRADESH, SHIMLA-171002
CIRCULAR 1/2011
Dated April 29, 2011
Sub:- Code of Criminal Procedure (Amendment) Acts, 2008 & 2010
The provisions of the Code of Criminal Procedure Code (Amendment) Act, 2008 (Act 5 of
2009) were notified by S.O. 3313 (E) dated 30-12-2009 of Ministry of Home Affairs and came into
force on December 31, 2009 vide which all 32 sections of the Act except Section 5, 6 (both relating
to amendments to Section 41- Power of police to arrest without warrant) and 21(b) (relating to
section 309- Power to postpone or adjourn proceedings) were notified. These three amendments were
notified later by S.O. 2687 (E) dated 30-10-2010 of Ministry of Home Affairs and have come into
force on November 1, 2010. Amendments relating to arrest in Code of Criminal Procedure Code
(Amendment) Act, 2008 were further amended by Code of Criminal Procedure Code (Amendment)
Act, 2010 ( Act 41 of 2010) and were notified by S.O. 2689 (E) dated 1-11-2010 of Ministry of
Home Affairs and have come into force on November 2, 2011. The net effect of these amendments is
summarized below for due attention of the police officers.
I. AMENDMENTS RELATING TO ARREST:
a)
It is now compulsory for the police to record the reasons both for making as well as for not
making an arrest on the basis of a complaint or information or reasonable suspicion in respect of a
cognizable offence for which the maximum punishment prescribed is 7 years or less. Henceforth, no
person can be arrested for a complaint or suspicion of involvement in such an offence without a
warrant unless:
(I) Such person commits a cognizable offence in the presence of a police officer; or
(II) When the cognizable offence is punishable with imprisonment for a term which is less
than
7 years or may extend up to 7 years, the police officer has reason to believe that such person has
committed the offence and is satisfied that such arrest is necessary,
i. to prevent such person from committing any further offence; or
ii. for proper investigation of the offence; or
iii. to prevent such person from causing the evidence of the offence to disappear or tampering
with such evidence in any manner; or
iv. to prevent such person from making any inducement, threat or promise to any person
acquainted with the facts of the case; or
v. to ensure his presence before the court as and when required.
(b)
In all cases where the arrest of a person is not required under the provisions of sub section (1)
of section 41, the police officer shall, issue a notice directing the person to appear before him and to
comply with the terms of notice. He can be arrested if such person fails to comply with such
direction.
(c)
The police officer while making arrest shall (a) bear an accurate, visible and clear
identification, (b) prepare a memorandum of arrest which shall be attested by at least one witness and
Page 1 of 4
countersigned by the person arrested, (c) inform the person that he has a right to have a relative or
friend informed of his arrest.
(d)
When any person is arrested for any offence and interrogated by the police, he shall be
entitled to meet an advocate of his choice during interrogation, though not throughout the
interrogation.
(e)
Section 46 has been amended by adding proviso to sub section 1 which prescribes that the
“where a women is to be arrested, unless the circumstances indicate to the contrary, her submission
to custody on an oral intimation of arrest is 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.”
(f)
Section 54 in the pre-amended Cr PC required examination of arrested person by a medical
practitioner at the request of arrested person on production before a Magistrate. The amended Section
54 mandates compulsory medical inspection in all cases of arrest by the police. A copy of the
medical report is to be provided to the arrested person or his nominee.
Section 55A has been incorporated which bestows upon the person having custody of the
(g)
accused, the duty to take reasonable care of the health and safety of the accused. Thus the police are
duty bound to take all reasonable care of the health and safety of the accused in custody.
II. DETENTION OF ACCUSED:
In sub clause (b) of the proviso to Section 167 (2), amendment has been incorporated making
it mandatory that the detention in police custody of the accused will be authorized only on physical
production of the accused. Significantly detention in judicial custody can be extended by the
production of accused either in person or through the medium of electronic video linkage.
III. STATEMENT OF WITNESSES:
Section 161(3) has been amended with a proviso which enables 161 statements taken by the
police to include recording by audio, video or electronic means. Thus legal sanction has been
accorded to the preparation of an electronic record of the statement of witnesses under S.161 in the
Cr PC in keeping with changes in the Indian Evidence Act and Information Technology Act, 2000.
Section 164(1) has also been amended by permitting electronic recording by audio-video means
of the statement/confession recorded under the section before a magistrate as long as it is in the
presence of the advocate of the person accused of an offence.
Section 275 which deals with recording of evidence of witnesses in warrant cases has been
amended providing for the evidence to be recorded by audio/video means in the presence of the
advocate of the person accused of the offence.
Section 242 which deals with prosecution evidence in trial of warrant cases instituted on a
police report by magistrates has been amended by providing that the magistrate shall supply, in
advance to the accused, the statements of witnesses recorded by the police during investigation.
Page 2 of 4
IV. CASE DIARY:
Section 172 has been amended making it mandatory for the statement of witnesses recorded
during the course of investigation to be inserted in the case diary. The case diary has also to be duly
paginated and in a volume.
V. INVESTIGATION OF OFFENCES RELATING TO WOMEN:
Section 26 of the Code of Criminal Procedure, 1973 has been amended by prescribing that the
offences under sec. 376 of 376 A to D of IPC, are to be tried, as far as practicable, by a court presided
by a woman.
Section 157 has been amended to prescribe that in relation to rape, recording of the statement
of the victim shall be conducted at the residence of the victim or at the place of her choice and as far
as practicable by a woman police officer in the presence of her parents or guardians or near relatives
or social workers of the locality.
Section 173 has been amended to state that the investigation of a case of rape of a child may
be completed within 3 months from the date on which the information was recorded by the officer in
charge of a police station. The final report under Section 173(1)(g) will also have to mention whether
report of medical examination of the woman has been attached where the investigation relates to an
offence under section 376, and 376A to D of the IPC.
Section 327 (2) which prescribes in camera trial in cases of offences under Section 376, 376
A to D has been amended by providing that ‘in camera’ trial shall be conducted as far as possible by
a woman judge or magistrate.
Section 327 (3) which bars printing/ publishing any matter in relation to such ‘in camera’
proceedings except with the previous permission of the court has been relaxed by mandating that the
ban may be lifted subject to maintaining confidentiality of names and addresses of the parties.
VI. INTIMIDATION OF WITNESSES:
The amended Act permits the witness or any other person to file a complaint in relation to
threatening of any person to give false evidence prescribed u/s 195 A of the IPC. This procedure is
prescribed by the insertion of Section 195 A of the Cr PC.
VII. COMPOUNDING OF OFFENCES:
The scope of compounding under Section 320 has been enhanced. Section 335, 343,344, 346,
379, 403, 407, 411, 414, 417, 419, 421, 422, 423, 424, 428, 429, 430, 451, 482, 483 and 486 are
newly incorporated in the list of offences which can be compounded by the persons detailed in the
table (i.e. victims of the offence). All these sections which earlier required the permission of court as
well for compounding, no longer require the same after the 2008 amendment. Section 312 has been
included in the list of offences which, with the permission of court before which such prosecution is
pending, can be compounded by the persons detailed in the table. It is to be noted that S.354 has been
deleted from the table of compounded offences.
Page 3 of 4
VIII. RIGHTS OF THE VICTIM:
a)
Section 2 has been amended by including clause (wa) which define victim as “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”.
b)
The new Section 357A mandates that the State Government in coordination with the Central
Government shall prepare schemes for providing funds for compensation to victims.
c)
Right of Appeal: Section 372 of the Cr PC has been amended. The victim shall have the right
to prefer an appeal against any order passed by a court acquitting the accused or convicting for a
lesser offence or imposing inadequate compensation.
d)
Permission to engage advocate: Section 24 of the Cr PC has been amended by adding sub
section 8 enabling the court to permit the victim to engage an advocate of his choice to assist the
prosecution.
Print Page
HIMACHAL PRADESH, SHIMLA-171002
CIRCULAR 1/2011
Dated April 29, 2011
Sub:- Code of Criminal Procedure (Amendment) Acts, 2008 & 2010
The provisions of the Code of Criminal Procedure Code (Amendment) Act, 2008 (Act 5 of
2009) were notified by S.O. 3313 (E) dated 30-12-2009 of Ministry of Home Affairs and came into
force on December 31, 2009 vide which all 32 sections of the Act except Section 5, 6 (both relating
to amendments to Section 41- Power of police to arrest without warrant) and 21(b) (relating to
section 309- Power to postpone or adjourn proceedings) were notified. These three amendments were
notified later by S.O. 2687 (E) dated 30-10-2010 of Ministry of Home Affairs and have come into
force on November 1, 2010. Amendments relating to arrest in Code of Criminal Procedure Code
(Amendment) Act, 2008 were further amended by Code of Criminal Procedure Code (Amendment)
Act, 2010 ( Act 41 of 2010) and were notified by S.O. 2689 (E) dated 1-11-2010 of Ministry of
Home Affairs and have come into force on November 2, 2011. The net effect of these amendments is
summarized below for due attention of the police officers.
I. AMENDMENTS RELATING TO ARREST:
a)
It is now compulsory for the police to record the reasons both for making as well as for not
making an arrest on the basis of a complaint or information or reasonable suspicion in respect of a
cognizable offence for which the maximum punishment prescribed is 7 years or less. Henceforth, no
person can be arrested for a complaint or suspicion of involvement in such an offence without a
warrant unless:
(I) Such person commits a cognizable offence in the presence of a police officer; or
(II) When the cognizable offence is punishable with imprisonment for a term which is less
than
7 years or may extend up to 7 years, the police officer has reason to believe that such person has
committed the offence and is satisfied that such arrest is necessary,
i. to prevent such person from committing any further offence; or
ii. for proper investigation of the offence; or
iii. to prevent such person from causing the evidence of the offence to disappear or tampering
with such evidence in any manner; or
iv. to prevent such person from making any inducement, threat or promise to any person
acquainted with the facts of the case; or
v. to ensure his presence before the court as and when required.
(b)
In all cases where the arrest of a person is not required under the provisions of sub section (1)
of section 41, the police officer shall, issue a notice directing the person to appear before him and to
comply with the terms of notice. He can be arrested if such person fails to comply with such
direction.
(c)
The police officer while making arrest shall (a) bear an accurate, visible and clear
identification, (b) prepare a memorandum of arrest which shall be attested by at least one witness and
Page 1 of 4
countersigned by the person arrested, (c) inform the person that he has a right to have a relative or
friend informed of his arrest.
(d)
When any person is arrested for any offence and interrogated by the police, he shall be
entitled to meet an advocate of his choice during interrogation, though not throughout the
interrogation.
(e)
Section 46 has been amended by adding proviso to sub section 1 which prescribes that the
“where a women is to be arrested, unless the circumstances indicate to the contrary, her submission
to custody on an oral intimation of arrest is 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.”
(f)
Section 54 in the pre-amended Cr PC required examination of arrested person by a medical
practitioner at the request of arrested person on production before a Magistrate. The amended Section
54 mandates compulsory medical inspection in all cases of arrest by the police. A copy of the
medical report is to be provided to the arrested person or his nominee.
Section 55A has been incorporated which bestows upon the person having custody of the
(g)
accused, the duty to take reasonable care of the health and safety of the accused. Thus the police are
duty bound to take all reasonable care of the health and safety of the accused in custody.
II. DETENTION OF ACCUSED:
In sub clause (b) of the proviso to Section 167 (2), amendment has been incorporated making
it mandatory that the detention in police custody of the accused will be authorized only on physical
production of the accused. Significantly detention in judicial custody can be extended by the
production of accused either in person or through the medium of electronic video linkage.
III. STATEMENT OF WITNESSES:
Section 161(3) has been amended with a proviso which enables 161 statements taken by the
police to include recording by audio, video or electronic means. Thus legal sanction has been
accorded to the preparation of an electronic record of the statement of witnesses under S.161 in the
Cr PC in keeping with changes in the Indian Evidence Act and Information Technology Act, 2000.
Section 164(1) has also been amended by permitting electronic recording by audio-video means
of the statement/confession recorded under the section before a magistrate as long as it is in the
presence of the advocate of the person accused of an offence.
Section 275 which deals with recording of evidence of witnesses in warrant cases has been
amended providing for the evidence to be recorded by audio/video means in the presence of the
advocate of the person accused of the offence.
Section 242 which deals with prosecution evidence in trial of warrant cases instituted on a
police report by magistrates has been amended by providing that the magistrate shall supply, in
advance to the accused, the statements of witnesses recorded by the police during investigation.
Page 2 of 4
IV. CASE DIARY:
Section 172 has been amended making it mandatory for the statement of witnesses recorded
during the course of investigation to be inserted in the case diary. The case diary has also to be duly
paginated and in a volume.
V. INVESTIGATION OF OFFENCES RELATING TO WOMEN:
Section 26 of the Code of Criminal Procedure, 1973 has been amended by prescribing that the
offences under sec. 376 of 376 A to D of IPC, are to be tried, as far as practicable, by a court presided
by a woman.
Section 157 has been amended to prescribe that in relation to rape, recording of the statement
of the victim shall be conducted at the residence of the victim or at the place of her choice and as far
as practicable by a woman police officer in the presence of her parents or guardians or near relatives
or social workers of the locality.
Section 173 has been amended to state that the investigation of a case of rape of a child may
be completed within 3 months from the date on which the information was recorded by the officer in
charge of a police station. The final report under Section 173(1)(g) will also have to mention whether
report of medical examination of the woman has been attached where the investigation relates to an
offence under section 376, and 376A to D of the IPC.
Section 327 (2) which prescribes in camera trial in cases of offences under Section 376, 376
A to D has been amended by providing that ‘in camera’ trial shall be conducted as far as possible by
a woman judge or magistrate.
Section 327 (3) which bars printing/ publishing any matter in relation to such ‘in camera’
proceedings except with the previous permission of the court has been relaxed by mandating that the
ban may be lifted subject to maintaining confidentiality of names and addresses of the parties.
VI. INTIMIDATION OF WITNESSES:
The amended Act permits the witness or any other person to file a complaint in relation to
threatening of any person to give false evidence prescribed u/s 195 A of the IPC. This procedure is
prescribed by the insertion of Section 195 A of the Cr PC.
VII. COMPOUNDING OF OFFENCES:
The scope of compounding under Section 320 has been enhanced. Section 335, 343,344, 346,
379, 403, 407, 411, 414, 417, 419, 421, 422, 423, 424, 428, 429, 430, 451, 482, 483 and 486 are
newly incorporated in the list of offences which can be compounded by the persons detailed in the
table (i.e. victims of the offence). All these sections which earlier required the permission of court as
well for compounding, no longer require the same after the 2008 amendment. Section 312 has been
included in the list of offences which, with the permission of court before which such prosecution is
pending, can be compounded by the persons detailed in the table. It is to be noted that S.354 has been
deleted from the table of compounded offences.
Page 3 of 4
VIII. RIGHTS OF THE VICTIM:
a)
Section 2 has been amended by including clause (wa) which define victim as “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”.
b)
The new Section 357A mandates that the State Government in coordination with the Central
Government shall prepare schemes for providing funds for compensation to victims.
c)
Right of Appeal: Section 372 of the Cr PC has been amended. The victim shall have the right
to prefer an appeal against any order passed by a court acquitting the accused or convicting for a
lesser offence or imposing inadequate compensation.
d)
Permission to engage advocate: Section 24 of the Cr PC has been amended by adding sub
section 8 enabling the court to permit the victim to engage an advocate of his choice to assist the
prosecution.
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