Know about the Loopholes in the Cr.P.C.(Criminal Procedure Code) Provisions
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What are the loopholes in the provisions of the Cr. P.C and in what form such provisions of Cr. P.C is required to be amended to make the Code more effective:
Where Section 161 of the Criminal Procedure Code provides for the examination of the witnesses by the police officer making an investigation or any other officer not below the rank as the State Government may prescribe and puts an obligation on such person so-called to answer truly all questions relating to such case. And after the examination may record the statement made by such person.
Thus we see that section 161 of CrPC is related to an examination of witnesses where there is a provision for reducing the statements made during the examination of witness into writing. So far it is all right. But the real catch occurs in the next section.`
Section 162 says-
Statements to police not to be signed: Use of statements in evidence.
(1) No statement made by any person to a police officer in the course of’ an investigation under this Chapter, shall, if reduced to writing, be signed by the person making it, nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record, be used for any purpose, save as hereinafter provided, at any inquiry or trial in respect of any offense under investigation at the time when such statement was made:
Thus the entire purpose of such an exercise of taking the statement of the witness and reducing it in writing gets defeated and it becomes nothing more than a mockery. Moreover, it also becomes a tool that might act as a whipping lash for other agencies (including the Judiciary) to condemn the police. Why is it so?
The reason is that while a police officer writes down the` statements but keeps it unsigned and unverified, it loses all its relevance and importance. It is no’s longer a verifiable and authentic document.
Firstly it gives a tool to the police officer to write down whatever she/he feels like and what seems to suit the course of the investigation. Thus when the witness is saying A, the police officer can write it down as B because there is no responsibility to show it to the witness and get it signed. What is the purpose of such an exercise?
If the investigating officer had the responsibility of getting the statement signed by the witness, could this have happened? Then there is another facet to it. Even when the police officer has written down the correct statement since it is not signed hence the witness faces no responsibility to verify it. He/she can always dismiss these statements as being untrue. Thus, the investigation prima-facie becomes shady and the big exercise of writing down so many pages of unsigned statements becomes useless.
What would be the solution to such a situation? To me, it seems that the best way out is to make it compulsory for the investigating officer to get the statement of witness signed and then to provide the witness with a copy of that. This will ensure responsibility on both sides. Again to add further checks and balances, here again, there shall be a need for the introduction of a large number of conditions, ifs, and buts. These conditions, norms, warnings, and due protections are certainly needed so that none of the two sides take advantage of the lack of such terms, conditions, and due protections. This would include giving proper warning to the witness as regards their right to keep silent. There might also be provided for the witness to keep another person (including a legal advisor) if the witness asks for it and to get the sign of this person again on the statement.
But once such conditions are imposed and such safeguards are taken, this change in the current provision of law would be worth taking because it will help remove a black scar on the Indian police and Indian mentality but will also positively assist in the deliverance of justice.
IRRELEVANCE OF THE PROCEDURE UNDER SECTION 53:
The necessity of changing the existing laws related to sexual assault has been felt quite often by the Indian courts in a number of cases. Even the Apex Court has pointed out the inadequacies and inconsistencies of law relating to rape in India and has suggested that the legislature should bring about the required changes.5 The Law Commission has also addressed the problem and after having examined the inconsistencies of the procedure, has suggested that the laws of procedure which are related to rape and sexual assault need a complete overhauling. The report of the Law Commission suggested that Section 53A and 64A should be inserted in the code of Criminal Procedure, 19736. The existing provisions under Section 53 provide that even an accused may request the police to subject himself to a medical test which is referred to as a potency test. There is no indication as to what kind of medical test shall the accused be subjected to. This shall only give the accused an opportunity to create evidence that can create confusion in the case at hand. Even if the accused is able to create an iota of confusion in the mind(s) of the judge(s), the whole purpose of formulating the very procedure is defeated. This provision needs to be changed right away as it does not help either the police or the victim and only creates unnecessary situations which can be misused by the offender.
IRRELEVANCE OF THE PROCEDURE UNDER SECTIONS 125:
There are several inconsistencies with relation to definitions, limitations, and the maintenance amount under this provision. The first and foremost glitch in the provision is the use of the term “divorced wife” since a woman ceases to be a wife after divorce so that makes the term inconsistent and meaningless in itself. When it comes to the limitation part, no threshold has been provided with reference to the maintenance. This inconsistency has been a cause of many problems of excessive maintenance being claimed since the quantum of maintenance is not decided by taking into account the factors like duration of the marriage. It is a fact that due to the increasing crimes against women in our country, the legislatures, as well as the judiciary, are focusing on making and interpreting the law in ways that eventually favor the woman. This appears to be fair prima-facie but if we look at the flip side, we realize that due to the laws being more in the favor of women, many women have started misusing the present legal system.
The same is the case with this provision. The provision disregards the possibility that in case the husband fails to pay the monthly maintenance due to some genuine inability maybe because of a financial crunch or any other exigency; he would be liable to be imprisoned. There should be some fail-safe built into the provision according to which it can be made sure that if the husband becomes incapable to pay the monthly maintenance amount on time then he might be able to claim some relief or at least an extension for payment of the amount on the submission of the proof of such financial difficulty.
CONCLUSION:
The provisions of CrPC (Criminal Procedure Code) as we have them now are age-old and they do not cater to the needs of the present-day Indian society. The provisions as provided under Section 53 about the proclamation of the offender in his locality (town or village) have become totally irrelevant from the perspective of societal advancements. The police would only end up wasting resources and manpower and there would be no fruitful result obtained out of the whole exercise. Thus, in the place of following the prescribed procedure what can actually be done is that the police could use the social and news media for making the information reach the masses who reside in the locality of the offender.
Social media like social networking sites could play a revolutionary role and change the whole process altogether. Such social networking sites provide facilities to give out notifications and share information with the public at large and even target a specified public instead of the world at large, thereby making the process a more streamlined and efficient one.
Though the above approach comes with a few challenges that not everyone on the locality of the offender would be notified according to the procedure suggested above since the poor people who do not have resources enough to afford a computer or lack the basic technical expertise to be able to use one would not be able to receive the information. It is at this point where the role of news media comes into play.
The news media can reach both the rich as well as the poor. Since the newspapers are a very efficient media for circulating certain information publically. On the other hand, for those who can afford television sets, the police can broadcast a message in the locality of the offender as to the information which needs to be imparted as mentioned under Section 82, thereby saving a lot of resources.
When it comes to the trial of the cases related to sexual assault and rape there is an immediate need for a reduction in the time taken by the courts in the determination of the guilt of the offender. Practically speaking, the current procedure is ineffective and only leads to an increased number of cases being piled in the courts which only increased the backlog of cases in an already overburdened judiciary. Therefore, all such provisions which unnecessarily stretch the time taken by the courts to determine the guilt of the offenders should either be amended and altered or completely removed from the CrPC(Criminal Procedure Code). The provisions as laid down under Section 162 and Section 164 which relate to the recording of the statements of the witnesses hold no importance as far as the legality and the legal sanctity is concerned. This provision can neither be altered to provide that the statements recorded by the police should not be signed by the witnesses nor can it be said that the existing legal provisions should remain as they are since they are doing no harm to the criminal justice system as such. Thus, the only effective solution to this problem can be the deletion of the clause altogether. Since making the provisions for the statements to be signed by the witnesses would only violate the provisions of the Indian Evidence Act.
A very amusing situation arises when an offender seeks to go through a medical test in the cases of rape or gang rape and is thereby subjected to a potency test which later on becomes a strong ground for the offender to go scot-free. The provisions of Section 53 seem to be irrelevant and ineffective as far as the potency test is concerned. The aforementioned provisions do not provide any solution whatsoever for this problem and thus it only helps the offender to escape the hands of justice leaving the victim in a plight of misery and without any adequate remedy. It is in such situations where the very basic principle of a criminal justice system that is ‘retributive justice’ is defeated and the victim is left unsatisfied and justice is undone. Therefore, the provisions as provided under this section should be amended and a definition explaining the kind of medical test should be inserted into the provision which could channelize and put under proper scrutiny, the medical test of the offender.
As provisions under Section 125 which relate to the maintenance of a divorced woman seem to be quite irrational and therefore they need to be altered as well. The legislature should include an upper limit as to the maintenance that can be granted by the courts to the divorced woman and there needs to be a failsafe built into the provision that in case the husband is unable to pay maintenance due to some unavoidable circumstances or financial crunch then he should, at the submission of the proof of his inability, be granted an extension in the time period in which he can deposit the maintenance money.
In a nutshell, the CrPC(Criminal Procedure Code) in totality consists of a lot of provisions that need to be changed in light of the changing trends of society. With the evolution of Indian society and the advancements in technology, these provisions have become useless and the process involves a lot of manpower and resources which could otherwise be saved if proper technology and resources are used at the proper place. Apart from the provisions discussed in this paper, the CrPC provides a lot of discretionary power to the police as well. For instance, Section 151 of the Code provides so much power at the hands of a police officer that he can arrest any person at the apprehension of disturbance of peace in the society. Now, the disturbance in the peace and tranquility of society is a very vague and absurd premise for determining the guilt of a person. So what actually happens is that a lot of innocent people are arrested at this pretext and later on even if that person is proved to be innocent, a permanent social stigma is attached to his name and his reputation in society gets spoiled. Thus, if all these inconsistencies need to be altered and removed from the CrPC, only then can we have a criminal procedure that would cater to the needs of the Indian society as it exists today.
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