Analysis of 2018 Amendments in CrPC

Abstract-

The basic motive in bringing amendments in CrPC is to make anti-rape laws more stringent. The Criminal Law Amendment Act, 2018 was brought down in order to control the inhumane act which is increasing at a very staggering rate. The voice was started rising when the crime against minor girls was stated increasing in order to make anti-rape laws more severe. The shameful Kathua rape case and the Unnao rape case triggered the demand to make tough anti-rape laws and this gave birth to the amendment of 2018. The Criminal Law (Amendment) Act, 2018 has brought down many changes in the criminal law of the country. These amendments have been made in order to make anti-rape laws more severe so as to decrease the rate of crime which nowadays is at its peak. The time bound investigation and appeal, if implemented properly, can bring down the crime rate.

Introduction-

The CrPC is essentially a procedural law which lays down the procedure for administering substantive criminal laws in India. It was enacted in 1973 and came into force on 1 April 1974. Prior to the enactment of Criminal Law Amendment Act, 2018, the CrPC was last amended by the 2013 amendment Act, which included a few procedural amendments with regard to sexual offences. There have been simultaneous amendments in the CrPC to meet the ends of justice in such cases of rape.

Various changes brought down in CrPC provisions are-

  • Section 173 of the CrPC which obliges police officer to complete the investigation without unnecessary delay. Amendments brought down in 2018 that investigation in relation to offence under sections 376, 376A, 376AB, 376B, 376C, 376D, 376DA, 376DB or section 376E of IPC must be completed within two months.
  • Section 374 & 377 of the CrPC which allows the person to appeal to higher authority against the conviction upheld by lower court. Amendments brought down in 2018 that when an appeal has been filed against a sentence passed under sections 376, 376A, 376AB, 376B, 376C, 376D, 376DA, 376DB or section 376E of IPC then the appeal shall be disposed of within a period of six months from the date of appeal filed.
  • Section 438 of the CrPC which grant direction to bail to person apprehending arrest. Amendments brought down in 2018 that when the person is of the accused of the offence under sub-section (3) of section 376 or section 376AB or section 376DA or section 376DB then the accused will not be allowed to get anticipatory bail.
  • Section 439 of the CrPC which empowers High Court and Court of Session regarding bail. Amendments brought down in 2018 that when the person is of the accused of the offence under sub-section (3) of section 376 or section 376AB or section 376DA or section 376DB then High Court or Court of Session before granting bail to the accused give notice of the application for bail to the Public Prosecutor within a period of 15 days from the date of receipt of the notice of such application and also the new provision has been added to it that when the application for bail is being heard then there should be presence of informant or any person authorised by Public Prosecutor must be there.
  • Lastly, the amendment brought down in 2018 that the Schedule I of the CrPC in which the offence of rape against the women under age of 16 is cognizable and non- bailable.

Analysis of the above amendments-

Step to get justice in proper time bound- For any successful conviction, investigation is an important component in the criminal justice system. But apart from the pre-eminent position of investigation in a criminal trial, speedy investigation is also a significant part of the criminal justice system. Apathy of law enforcement agencies towards investigating rape cases often lead to delays in filling charge sheet, which is often a reflection of faulty investigation. Delay in investigation may lead to tampering of evidence, witness intimidation and subsequently acquittals in trial owing to want of evidence. Prior to the enactment of Criminal Law Amendment Act, 2018, the Cr.P.C provided that 3-month period for the completion of investigation in rape cases involving minor. The Criminal Law Amendment Act, 2018 has reduced this period of investigation from 3 months to 2 months. Further, the Criminal Law Amendment Act, 2018 has also reduced this time limit in all offences of rape (including rape, gang rape, and rape of minors under the age of 12 years and 16 years). This is appreciable in a sense that it is another step towards strengthening speedy investigation in rape cases, which often suffer due to delayed investigation by the police. No doubt that delay caused in the investigation process and disposal of appeals are a cause of major concern and dilutes the effect of any stringent law. The Criminal Law Amendment Act, 2018, by giving a statutory time limit for investigation and appeals in rape cases is a welcome step. However, the Criminal Law Amendment Act, 2018 is silent on the consequences which will follow in case the appeal is not disposed of within 6 months or investigation is not completed within 2 months. If the statistics of NCRB are considered, in 2016 there were 55,071 cases for investigation out which in 16,124 cases investigation are still pending from the previous year and 38,947 new cases were reported for investigation.[1] As of 2016, with a pendency percentage of 30.3%, there were 16,678 cases which are pending investigation at the end of the 2016.[2]

Many lawyers, academicians and experts from time to time have raised serious concerns about procedural irregularities and miscarriage of justice in the proceedings of FTCs. In the absence of any punitive action against judicial and police officers for failing to adhere to such time limits, these ‘time bound’ provisions may be rendered nugatory.[3] Therefore, it is incumbent upon the legislature that while making ‘time bound’ provisions they should also enact consequential provisions to deal with the cases of noncompliance or infraction.

  • Prevention from miscarriage of justice-

Section 438, Cr.P.C lays down the provision of anticipatory bail. Such bail is available to persons who are under the apprehension of being arrested for a non-bailable offence. The Criminal Law Amendment Act, 2018 has amended the provision by incorporating a stringent subsection which makes provision of anticipatory bail inapplicable to the offences of rape and gang rape where the prosecutrix is below 16 years of age. Thus, no court shall have the power to grant an anticipatory bail to a person who is apprehending arrest in a rape case related to minor. Since Maneka Gandhi case[4], constitutional courts have been invoking the doctrine of proportionality for advancing fairness and reasonableness in procedural laws. At a time when misuse of law has come under the strict scrutiny of the judiciary, the constitutional courts by way of interpretation have devised alternative remedies for providing relief to the accused person. For instance in the state of Uttar Pradesh the provision of anticipatory bail has been made inapplicable since 1976.[5] The full bench of the Allahabad High court in Amarvati case[6], while interpreting section 2(c), 41, 157(1), 437 and 439 of the CrPC observed that the arrest of the accused was not necessary even after the FIR of an cognisable offence has been lodged.[7] It further ruled that the court, in view of the facts and circumstances of the case, may grant interim bail till the bail application is finally disposed. The decision of Amravati case was approved by the SC in Lal Kamlendra Pratap Singh v. State of Uttar Pradesh,[8] where it directed all courts in Uttar Pradesh to follow it in letter and spirit, since the provision for anticipatory bail was not available in Uttar Pradesh. Even the Supreme court in several cases has categorically ruled that despite statutory bar against the grant of anticipatory bail, a constitutional court cannot be barred from exercising its jurisdiction to grant relief to the accused.[9] Thus, exclusionary provisions introduced by the Criminal Law Amendment Act, 2018 with respect to anticipatory bail are not absolute in nature. Therefore, there is no certainty that removal of anticipatory bail provision would necessarily lead to the exclusion of judiciary from exercising its powers conferred by the constitution or any other law. Also, removing anticipatory bail provision will further burden the constitutional courts with petitions seeking bail in anticipation of arrest, under their writ jurisdiction.

Criminal Law Amendment Act, 2018 also places limitations on the powers of courts while granting regular bail under section 439, CrPC (in rape cases of minors) by requiring them to give a prior notice to the public prosecutor within 15 days from the date of receipt of the bail application.[10] The new provisions will entitle the prosecution to give representation and oppose the bail application of the accused, thereby safeguarding the interest of rape victims. The right of representation to prosecution in bail matters is a welcome step in the light of incidences of witness tampering and political patronage to sexual offenders in Kathua and Unnao rape cases.

Conclusion & Suggestions-

The criminal law is one of the most vital link which defines the relationship between a state and its citizens. Therefore, it is desirable if this relationship is defined precisely and clearly in the penal statutes. The criminal law which is seen as the most potent State instrument restricting individual’s fundamental right to life and personal liberty, must be free from inconsistencies and ambiguities. However, of late vagueness and ambiguity appears to be the first hand rule of the present day legislative interventions.


[1] Supra note 38 at 148

[2] Id. at 148-149

[3] Recently, a two Judge bench of the SC in State of Bihar v. Bihar Rajya Bhumi Vikas Bank Samiti (2018) SCC OnLine SC 966 read down a mandatory worded provision of the Arbitration & Conciliation Act, 1996 as directory, since the infraction of impugned provision attracted no legal or penal consequences. Also see, Topline Shoes v. Corporation Bank (2002) 6 SCC 33, J.J. Merchant (Dr.) v. Shrinath Chaturvedi (2002) 6 SCC 635, Salem Advocate Bar Association v. Union of India (2005) 6 SCC 344 at para. 20, State of Kerala v. Alaserry Mohd. (1978) 2 SCC 386, Jaswantsingh Mathurasingh v. Ahmadabad Municipal Corp. (1992) Supp. 1 SCC 5.

[4] Maneka Gandhi v. Union of India (1977) 1 SCC 248.

[5] The Code of Criminal Procedure (Uttar Pradesh Amendment) Act, 1976 (Act 16 of 1976), s. 9

[6] Amaravati v. State of U.P. (2005) Cr. L.J 755.

[7] Allahabad High Court placed reliance on the SC judgement in Joginder v. State (1994) 4 SCC 260.

[8] (2009) 4 SCC 437.

[9] See, Hema Mishra v. State of Uttar Pradesh (2014) 4 SCC 453 at para 21, 34-36, Kartar Singh v. State of Punjab (1994) 3 SCC 569 at para 369 (17), Subhash Kashinath Mahajan v. State of Maharashtra (2018) 6 SCC 454 at para. 50, 52, 66. It is also pertinent to note that in Subhash Kashinath Mahajan case the Central govt. promulgated an Ordinance which was replaced by an Act of Parliament, to overturn the SC judgement. The Act known as the SC/ST (Prevention of Atrocities) Amendment Act, 2018 (Act 27 of 2018) nullified the SC judgment and to protect it from judicial review, in future, was placed in the Ninth schedule of the Constitution of India. However, soon after the law came into effect a PIL (Prathvi Raj Sharma & Priya Sharma v. Union of India, W.P. (C) No. 001016/2018) was filed before the SC challenging its constitutional validity.

[10] Supra note 10, s.439 (1) proviso 2.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s