THE LAW AND THE COMMON MAN: R.I.P. COMMON SENSE
The Act altering the provisions of the Criminal Procedure Code was passed without any debate in Parliament. We therefore, do not know the reasons for this being passed so quickly.
In the light of the terrorist attacks and the prevailing sense that the law enforcement machinery needed to be strengthened, to protect those who pay taxes and abide by the law, this one comes as a shocker.
Laws are meant to capture the reality of the times and seek to make the world around us safer. They should provide the tax paying, law abiding citizen an environment where he can exercise his rights to a peaceful life and pursue happiness without restraints that are unfair within the meaning of natural justice. This Act seems to do just the opposite and is devoid of any "common sense".
President okays 7-year hitch for arrests
19 Jan 2009, 0048 hrs IST, Vishwa Mohan, TNN
NEW DELHI: The recently-revamped Criminal Procedure Code, which divests police of arrest powers in cases where maximum sentence is upto seven years, become law with President Pratibha Patil finally giving her assent last week.
The presidential assent, which came nearly three weeks after the bill was sent to her after getting it passed from Parliament, has now paved the way for the government to notify it.
Once the law, CrPC (Amendment) Act 2008, becomes effective, the police, instead of arresting the accused, will be obliged to issue him/her a "notice of appearance" for any offence punishable with imprisonment up to seven years. The person can be arrested only if he/she does not appear before the police in response to the notice.
Seven years or less is the maximum penalty for a host of offences, including attempt to commit culpable homicide, robbery, attempt to suicide, kidnapping, voluntarily causing grievous hurt, cheating, outraging a woman's modesty and death caused by negligence.
The radical change in the CrPC has, however, drawn flak from a number of Bar associations across the country. Lawyers -- who also observed strike in various courts after the bill was passed in Parliament -- argue that the amendment (in Section 41) doing away with mandatory arrest provisions would remove fear from the minds of criminals who would misuse the provisions under the garb of personal liberty.
Under Section 41, as it originally stood, a police officer may, without an order of a magistrate and without a warrant, arrest any person who has been concerned in any cognisabale offence.
Some chief ministers had also voiced concerns on the amendment during a conference on internal security here on January 6.
Allaying those concerns, home minister P Chidambaram wrote to all CMs a week later on January 13 and explained why it was necessary to bring such changes in the CrPC.
Referring to Section 41 of the Act, Chidambaram said in his letter, "This provision was severely criticised as capable of being misused and, in fact, was being misused." To substantiate his point, he advised CMs to refer to reports of the Law Commission and the Malimath Committee and also the judgment of the Supreme Court in D K Basu case which laid down guidelines for effecting arrest.
Advising CMs to see the amendments in the light of those suggestions and guidelines, Chidambaram, however, assured them that the government was ready to revisit the provisions, if it became necessary, in the next session of Parliament.
The amendment in CrPC, however, allows police to arrest without an order from a magistrate and without a warrant a person who commits a cognisable offence "in the presence of a police officer".
It also enables arrest of "a person who has committed a cognisable offence (punishable for a term which may be less than 7 years or extend upto 7 years) if there is a reasonable complaint or credible information or a reasonable suspicion and the police officer is satisfied that such arrest is necessary for proper investigation of the offence or for preventing tampering with the evidence". The only additional requirement in such cases is that the police officer will have "to record his reasons" for making the arrest.
The law further says that a police officer arresting a person will have to bear his identification badge or tag. Besides, a memorandum of arrest shall be prepared, witnessed and countersigned. The person arrested shall be told that he has the right to inform a relative or friend.
Whatis not reported or addressed:
WHAT IS THE DIFFERENCE BETWEEN A "POLICE OFFICER" AND "POLICE" EFFECTING ARREST? WHAT SHOULD A CONSTABLE OR CONSTABLES DO, WHEN THEY SEE GOONS MOLESTING A WOMAN? GIVE THEM 'A NOTICE OF APPEARANCE'? WE OFTEN SEE CONVICTS 'GOING UNDERGROUND', 'JUMPING PAROLE', AND 'GIVING COPS THE SLIP'. SHOULD THEY BE GIVEN 'NOTICE OF APPEARANCE'? CAN MOST OF THE CASE SHEETERS IN THIS COUNTRY READ? DOES THIS LEGISLATION CONFUSE AND CREATE MORE IMPEDIMENTS, OR DOES IT MAKE THE LAW LIFE EASIER FOR THE COMMON MAN?
TILL DATE ONLY ONE OR MORE OF THE BLAST CASES HAVE BEEN SUCCESSFULLY PROSECUTED AND CAPITAL PUNISHMENT METED OUT.THERE ARE MORE THAN 40 ODD BLAST CASES IN MUMBAI AND ELSEWHERE THAT HAVE NOT BEEN CLOSED. EVEN HIGH PROFILE CASES LIKE THE ARUSHI MURDER CASE, RAPE OF THE TOURISTS IN GOA AND ELSEWHERE,THE NOIDA PANDHER MASS PEADICIDE, ETC ARE HANGING FIRE.
THERE IS NO POINT EXTRADITING CRIMINALS AND ACCUSING PAKISTAN, WHEN WE CANNOT BRING THOSE WITH US IN CUSTODY TO JUSTICE AND CLOSURE AND FOLLOW UP ON 'TRAINING CAMPS' IN THE COUNTRY (WHICH ACCORDING TO SOME MEDIA ARTICLES, EXISTS IN VAGAMON IN KERALA FROM WHERE SOME TERRORISTS WERE ARRESTED ON THEIR WAY TO KASHMIR).
R.I.P. Common Sense.The response of a Common Man.
We mourn the passing of a beloved old friend, Common Sense, who has
been with us for many years. No one knows for sure how old he was, since his
birth records were long ago lost in bureaucratic red tape.
Common Sense took a beating when you couldn't defend yourself from a burglar
in your own home and the burglar could sue you for assault.
Common Sense lost the will to live as religion became a business and
criminals received better treatment than their victims and ended up representing them in houses meant to pass laws.
Common sense finally gave up when it found that its god-father Justice, was keeping a mistress called Crime and spent most of his time in her twin sister Corruption’s house.
Common Sense was preceded in death by his parents Truth and Trust, by his
wife Discretion his daughter, Responsibility, and his son Reason.
He is survived by his siblings, “Human rights for every Tom, Dick, (Prick and Harami)”, “Keep stray dogs on the streets (No, we cannot adopt them full- time)”, “My ancestors were ill treated, so now you guys compensate and suffer”, “My religion is not numerically popular, I need to be treated differently”, “I was born in this latitude-longitude, so rest of you guys can bounce”, “I see him on the idiot box, so he is God and the Truth”.
God save us, Eeshwaro Rakshathu, Eeshwar hee Raksha,. Khuda Hafeez, Budhham Sharanam Gachami.
(Inspired from a similar article that appeared in the media in UK. This is not an original piece and has been adapted to the current situation here in India)