April 15, 2010

Summary of the Code of Criminal Procedure (Amendment) Act, 2008 [Part I]

On the Code of Criminal Procedure (Amendment) Act, 2008, we are pleased to bring a Guest Post by Kumar Rahul, a final year student at National University of Juridical Sciences. His research interests include RTI Law, Criminal Law, Constitution and Governance. He can be contacted at kumar125rahul@gmail.com.
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1. Definition of Victim
The Code of Criminal procedure, 1973 (“CrPC”) did not define the term ‘victim’ in definitional clause under Section 2. The Apex Courts interpreted the term ‘victim’ in various instances. The new CrPC (Amendment) Act, 2008 (“2008 Act”) defined the term ‘victim’ as 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’ also includes his or her guardian or legal heir.

2. Representation by Lawyer
Any criminal act is considered as a wrong against the State and hence it is the duty of the State to institute the case on behalf of primary victim. The CrPC provides for the appointment of Public Prosecutor and Assistant Public Prosecutor to represent the case of victim on behalf of the state. The 2008 Act added a clause in section 24 that the court may permit the victim to engage an advocate of his choice to assist the prosecution under sub-section (8) of section 24.

3. Cases to be tried by women judges
The 2008 Act added a clause in section 26 of the CrPC that any offence under section 376 and sections 376A to 376D of the Indian Penal Code (45 of 1860) shall be tried as far as practicable by a Court presided over by a woman.

4. Law relating to arrest
The 2008 Act has brought a considerable change in laws relating to arrest. The original section 41 of the CrPC gave power to the police to arrest any person without warrant who has been suspected of having committed any cognizable offence or against whom a reasonable complaint has been made. The section also empowered police to arrest a person on the basis of reasonable suspicion. The 2008 Act restricts the power of the police to arrest and envisages that police cannot arrest a person without warrant against whom 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 year or which may extend to seven years.

Therefore, the police cannot arrest merely on the basis of reasonable complaint. The police must have reasons to suspect that such person has committed the said offence. Moreover, the police officer who is making arrest must satisfy that such arrest is necessary to prevent such person from committing any offence; or for proper investigation of the offence; or to prevent such person from causing the evidence of the offence to disappear or tampering with such evidence in any manner, to prevent such person from influencing witnesses of the case. The police are obliged to record his reason on writings while making the arrest. The 2008 Act has inserted new sections 41A, 41B, 41C and 41D.

Section 41A requires the police to issue a notice to appear if the arrest of the person is not required under the provisions of sub-section 1 of section 41. Section 41B lays down the requirements to be followed by the police-officer while making arrest. Every police officer while making an arrest shall bear an accurate, visible and clear identification of his name which will facilitate easy identification. At the time of the arrest, the police are required to prepare a memorandum of arrest which shall be attested by at least one respectable member of the locality where the arrest is made and must be countersigned by the person arrested.

It also makes mandatory that the police officer has to inform the person arrested that he has a right to have a relative or a friend named by him to be informed of his arrest unless the memorandum is attested by a member of his family. Section 41C as inserted by the amendment provides the establishment of control rooms in every district and at state level, which shall display the names and addresses of the persons arrested and the name and designation of the police officer who made the arrests on the notice board.

The control room at the state level shall make a database about the persons arrested and the nature of the offence with which they are charged for the information of general public. Section 41D gives the statutory right to arrested person to meet an advocate 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, although not throughout interrogation. The 2008 Act added a new proviso in section 46 of CrPC which provides that where a woman is to be arrested; her submission to custody on an oral intimation of arrest shall be presumed unless the circumstances indicate to the contrary. The police officer shall not touch the woman for making her arrest unless the police officer is a female.

5. Medical examination of arrested person
The 2008 Act substitutes the provisions of Section 54 with new provision for medical examination of arrested person. Sub-clause (i) makes it mandatory to conduct medical examination of the arrested person by a medical officer in the service of Central or State Governments and in case the medical officer is not available by a registered medical practitioner soon after the arrest is made. If the arrested person is a female, the medical examination 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 officer. Sub-section (2) requires the medical officer to 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.  A copy of the report of such examination shall be furnished by the medical officer to the arrested person. The 2008 Act also inserted a new section 55A which says that 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.

6. Recording of statement of rape victim
The 2008 Act adds a proviso in sub-section (1) of section 157 of the principal Act which stipulates 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.

7. Audio/ Video electronic means to record the statements
A proviso is added in sub-section (3) of section 161 which provides that statement made under this sub-section may also be recorded by audio-video electronic means. Sub-section (1) of section 164 of the principal legislation gives the power to Metropolitan Magistrate or Judicial Magistrate to record confession or statements in the course of an investigation. The 2008 Act provides 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. A proviso is also added in Sub-section (1) of Section 275 which provides that evidence of a witness under this sub-section may also be recorded by audio-video electronic means in the presence of the advocate of the person accused of the offence. Section 275 deals with the recording of statements in warrant-cases by the magistrate.

8. Rules relating to adjournments of cases
Section 309 of CrPC gives the power to the court to adjourn the proceeding for a future date. The 2008 Act has added a new proviso in sub-section (1) of Section 309 of the Code. It provides that when the inquiry or trial relates to an offence under sections 376 to 376D of the IPC, the inquiry or trial shall, as far as possible, be completed within a period of two months from the date of commencement of the examination of witnesses. A proviso is inserted in sub-section (2) which provides that no adjournment shall be granted at the request of a party, except where the circumstances are beyond the control of that party. The fact that the pleader of a party is engaged in another Court, shall not be a ground for adjournment and  where a witness is present in Court but a party or his pleader is not present or the party or his pleader though present in Court, is not ready to examine or cross-examine the witness, the Court may, if thinks fit, record the statement of the witness and pass such orders as it thinks fit dispensing with the examination-in-chief or cross-examination of the witness, as the case may be.

9. In camera trial
Sub-section (2) of Section 327 provides the cases (mostly sexual offences) in which the trial shall be conducted ‘in camera’. The 2008 Act added a proviso to this sub-section which provides that ‘in camera’ trial shall be conducted as far as practicable by a woman Judge or Magistrate. A proviso is also added to sub-section (3) which states that the ban on printing or publication of trial proceedings in relation to an offence of rape may be lifted, subject to maintaining confidentiality of name and address of the parties.

10. Criminal proceedings against persons of unsound mind and lunatics
Section 328 of the CrPC lays down the procedures to be followed by the court in case of accused being lunatic. The 2008 Act has inserted a new sub-section (1A) which states that if the civil surgeon finds the accused to be of unsound mind, he shall refer such person to a psychiatrist or clinical psychologist for care, treatment and prognosis of the condition. The psychiatrist or clinical psychologist shall inform the Magistrate whether the accused is suffering from unsoundness of mind or mental retardation.

If the accused is aggrieved by the information given by the psychiatric or clinical psychologist he may prefer an appeal before the Medical Board which shall consist of head of psychiatry unit in the nearest government hospital and a faculty member in psychiatry in the nearest medical college. The 2008 Act substituted subsection (3) with new provision which provides the discharge of the accused after the satisfaction of the magistrate that the person of unsoundness of mind is incapable of entering defence and if no prima facie case is made out against the accused.

If the Magistrate finds that a prima facie case is made out against the accused, he shall postpone the proceeding for such period, as in the opinion of the psychiatrist or clinical psychologist, is required for the treatment of the accused, and order the accused to be dealt with as provided under section 330. If such Magistrate is informed that the person referred to in subsection (1A) is a person with mental retardation, the Magistrate shall further determine whether the mental retardation renders the accused incapable of entering defence, and if the accused is found so incapable, the Magistrate shall order closure of the inquiry and deal with the accused in the manner provided under section 330. The similar provisions are also introduced in section 328 which lays down the procedures in case of person on unsound mind tried before the court. The 2008 Act also substitutes Section 330 with a new provision which gives the power to the magistrate to release the person in bail if he is incapable of entering defence by reason of unsoundness of mind under Section 328.

11. Victim Compensation Scheme
The 2008 Act has inserted a new section 357A which provides the mechanism to provide compensation to the victim. Every state government in consultation with the central government shall prepare a scheme for providing compensation to victim or his dependents who have suffered loss as a result of the crime and who require rehabilitation. The District Legal Service Authority or the State Legal Service Authority shall decide the quantum of compensation after the recommendations made by the court.

12. Right to appeal by the victim
The amendment to Sec.372 provides that the victim shall have a Right to Appeal against any order passed by the court acquitting the accused or convicting for a lesser offence or imposing inadequate compensation.

Summary of Code of Criminal Procedure (Amendment) Act, 2008 to be concluded.....

April 4, 2010

1st International Conference of South Asian Soceity of Criminology and Victimology, 15th-17th January, 2011

The South Asian Society of Criminology and Victimology (SASCV) is an international association founded to nurture criminology and victimology in the context of South Asia. The Society will organize the 1st International Conference of South Asian Soceity of Criminology and Victimology during 15th-17th January, 2011 at Jaipur, Rajasthan, India. The Chairperson of the Conference is Dr. K. Jaishankar, Department of Criminology and Criminal Justice, Manonmaniam Sundaranar University, Tamil Nadu, India.  
With the main theme "Crime and Victimization in the Globalized Era", the International Conference seeks to explore contested criminal issues concerning inter alia Cyber Terrorism, Cultural Crimes and Victimzation. The confirmed list of Key note Speakers include Prof. David s Wall, Centre for Criminal Justice Studies, School of Law, University of Leeds, U.K. and Prof. Emilio C. Viano, Department of Justice Law and Society, School of Public Affairs, American University, U.S.A.
A 150-200 words abstract should be submitted (electronically) addressing one of the mjor sub-themes of the plenary sessions, by way of elaboration of specific aspects, or in answer to critical questions by October 10, 2010. To submit an abstract, click on this link.
Abstracts are invited on the following areas of research;

1. Terrorism and Extremism
2. Cyber Crimes, Laws and Security
3. Crimes of Culture and Culture of Crimes
4. Marginality, Social Exclusion and Victimization
5. Criminal Victimization in South Asia and Victimization of South Asians in other countries

The abstracts will be peer reviewed and authors will recieve confirmation by November 15, 2010.
Selected papers from the Conference will be published in a special conference edition of the International Journal of Criminal Justice Sciences (official journal of the SASCV) and also in an edited book volume to be published by a reputed publisher.

For further details, see this link. Details of the Conference are also available with the author of this post on demand. 

The contributors of Breaking the Code of Criminal Procedure wish Dr. K. Jaishankar every success for his upcoming endeavours.

April 1, 2010

National Seminar on Cyber Laws: Policy Issues and Emerging Trends at RMNLU, Lucknow

 

The two-day National Seminar (27th-28th March, 2010) on Cyber Laws: Policy Issues and Emerging Trends organized by Dr. Ram Manohar Lohiya National Law University, Lucknow revisited cyber jurisprudence in the Indian context and “examined the policy and technology development processes, the impact of new technologies and decision makers on public policy, individual rights, and the marketplace and the complex interrelationship between technology, policy and law”. The Chief Guest to the National Seminar was His Lordship Yatindra Singh, Judge, Allahabad HC and other dignitaries included Rodney D Ryder (SC), Pawan Duggal (SC), Dr. Kavita Singh (NUJS), Prof. Sarfaraz Ahmed Khan (NUJS) and top officers from the Police Personnel. 

The Seminar was not only a platform for open discussion on “Future Agenda for Reforms”, but also a step towards the exploration of various cyber related laws, their use and misuse. To be noted, RMNLU will henceforth celebrate a “Cyber-Security Week” in their campus, idea that was proposed by cyber expert Rodney D Ryder and appreciated by Prof. Balraj Chauhan (VC, RMNLU).

Given the enormity of the Seminar and range of participants, it becomes difficult to cover it in toto, and therefore, this post merely lists out the major Recommendations (proposed to be sent to the respective State Governments and the Law Commission of India) carefully prepared under the assistance of Dr. S Latha (Secretary, Indian Society of Criminology). I specially thank Prof. Askand Pandey (Organising Secretary and Prof. at RMNLU) for handing over to me a copy of the Recommendations. I also acknowledge all the participants in the Seminar whose ideas and suggestions were incorporated in this list of recommendations.

RECOMMENDATIONS

I. EMPOWERING LEGAL EDUCATION:


  1. There is a need for a professional course, given by accredited law institutions in the area of Cyber Criminology (eps.) on cyber laws and cyber forensics.

  2. All the law universities should start LLM in Information Technology Laws in line with the programmes offered in NLIU, Bhopal and RMNLU.

  3. Capsule certificate (part time and full time) and diploma (part time and full time) courses should be offered to the existing lawyers for them to appreciate the technicality and legality of the existing cyber laws.

  4. To create awareness and educate lawyers on various assurance services like IS27001 on periodical basis since they keep changing regularly.

II. RE-LOOK ON THE LEGAL PROVISIONS:


  1. The provisions of the Information Technology Law should be re-looked and amended once in a year in line with the results of the CSI/FBI Survey on cyber crimes and cyber security so as to tackle the new forms of cyber crimes.

  2. The Information Technology Law should be amended in such a way that there should be an enhanced punishment for the offenders who commit offences like pornography, human trafficking using the computer.

  3. Issues relating to privacy and data protection should be given importance in the Information Technology Law immediately and later a separate law dealing with Data Protection should be enacted.

  4. There is no stringent provision in the laws to regulate cyber cafes. There is an immediate need to regulate the cyber cafes. Licensing should be regulated and be given or continued to be given only if the cafes follow the conditions laid down by the government.

  5. Compensation to the victims of cyber crimes and computer crimes to be thought of and in case of financial frauds and where there is case of gain of money or property to the offender, restitution to be made compulsory.

III. EMPOWERING THE POLICE AND JUDICIARY:


  1. Each State must have a Cyber Crime Investigation Cell to deal with all types of cyber crimes with modern equipments and tools to understand cyber forensics and information security.

  2. Each city and towns should have a branch of the cyber crime cell in the police headquarters.

  3. Appointments in Police can be made exclusively with the qualification of technical knowledge in computers, information security and cyber forensics to deal effectively with cyber crimes.

  4. The existing Police should be trained on cyber forensic tools, computer forensic tools and only the trained police should be appointed in the Cyber Crime Cell to handle the cases.

  5. Criminal Justice Professionals, in particular, Police, Judiciary and Prosecution should be trained in Cyber Laws and Digital Evidence and there is a need for capacity building for them. Experts from RMNLU, Department of Criminology, University of Madras, Central Forensic Science Laboratory, Hyderabad, and Tamil Nadu State Forensic Sciences Laboratory, Chennai may be consulted and invited for the purpose since they have exclusive Cyber Forensics Laboratory.

  6. Special courts should be established in the capital of each State to deal with cyber crimes.

  7. The response of the criminal justice system shall be fine-tuned and revisited, in order to keep pace with the developments in the information security and cyber forensics.

  8. A list of authorized consultants should be maintained based on their technical background, integrity, and confidentiality to assist the Bench of the Courts in cyber crime cases.

IV. EMPOWERING THE PUBLIC:


  1. Awareness on the existence of the cyber crime cells should be given to the general public so as to make them reporting.

  2. Awareness to the children and youth to be created on the usage of internet in a safer manner.

  3. Awareness to be given for the general public to prevent them from becoming the victims of financial frauds through computers.

V. RECOMMENDATIONS TO THE CENTRAL AND STATE GOVERNMENTS:


  1. A hand book on “Investigation of Cyber Crimes” to be prepared immediately for the Police.

  2. An operational Cyber Security Manual to be prepared for the public, government undertaking sectors, and for the criminal justice professionals, so as to understand the security issues and breaches in the information, computer and cyber securities.

  3. An exclusive hand book and guidelines on the victims of cyber crimes to be prepared so as to increase the reporting of the cyber crimes by the corporate and industry.

  4. Judicial Manual on Cyber Laws, Cyber Crimes, and Digital Evidence to be prepared.

  5. There is a need to build immediately a corporate – government understanding to bring in light the statistics on cyber crimes and information security breaches and also to increase the rate of lodging corporate on cyber crimes.

  6. In order to be a model, all the government offices should be made computerized, and information security provisions to be given importance.

VI. RECOMMENDATIONS TO THE CORPORATES:


  1. The following control mechanisms to be strictly adopted on a periodical basis, probably once in two months at least, although it requires day to day updation:
(a)    Physical Control
(b)   Administrative Control
(c)    Logical Control and
(d)   Legal Control


  1. Periodical auditing must be done.

  2. Confidentiality, integrity, and availability of computers to be regulated.

  3. Regular back up procedures by the safe hands to be taken care of.