Menaka Guruswamy writes on Centre’s proposed Criminal Code: The custody question

You might ask why. When you have been detained, are being questioned and are surrounded by police officers, it’s the Code of Criminal Procedure that protects you, limits your detention period in police custody and enables you to access a lawyer, who in turn can push for bail and even ask for quashing of the FIR or chargesheet against you. Therefore, I particularly like that the new law is titled the Indian Citizen’s Protection Code, 2023. This reflects the idea of a procedural shield for citizens against the State in the criminal process.

There’s plenty of welcome reform to our existing criminal procedure. Some of it draws on the technological innovations that have made it into our everyday life. For instance, the entire life of a new case, commencing from the FIR (first information report) leading to a case diary on its way to a chargesheet and culminating in a judgment is now to be maintained online — via digitised recordkeeping. This will make the record of the case proceedings immeasurably safer and enable quicker access when necessary. Significantly, when our homes are searched and seizure affected on items found, then such proceedings must be accompanied by mandatory video recording. This is a hugely important reform since this is protection against planting of evidence and can be used by the defence to contest alleged seizures.

The Protection Code also provides for the registration of a “zero FIR”. This kind of FIR is registered when a police station receives a complaint regarding an alleged offence committed in the jurisdiction of another police station. Here, the original police station registers the FIR and then transfers it to the relevant police station for further investigation.

The Protection Code now makes it mandatory for a forensic expert to visit the crime scene and collect forensic evidence for information relating to an offence that is punishable by imprisonment for at least seven years. Continuing the pandemic-era changes, the Protection Code allows trials, inquiries and proceedings, including examination and recording of evidence, to be conducted by an electronic or online mode. This makes it infinitely more convenient for accused and witnesses to participate in and complete these requirements of the processes of a trial.

Another welcome reform pertains to the grant of sanction to prosecute a public servant. The Protection Code now provides that the decision to grant or reject sanction to prosecute a public servant must be reached by the government within 120 days of receiving the request. If the government fails to do so, sanction shall be deemed to be accorded. Additionally, no sanction shall be required in cases involving public servants when accused of sexual offences or trafficking of human beings. More reform comes in the form of a provision that mandates that no person can be arrested without prior permission of an officer of the minimum rank of Deputy Superintendent of Police for offences punishable with less than three years imprisonment, if the accused is above the age of 60 years.

Now, let’s move on to areas of particular concern that need to be considered closely by the parliamentary committee. An area of concern is that the Protection Code enables trial in absentia if the judge is satisfied that the “personal attendance of the accused before the Court is not necessary in the interests of justice” or if the accused “persistently disturbs the proceedings in court”. There is plenty of scope for abuse of a provision such as this given the wide latitude afforded to the judge in deciding when the presence of an accused is not necessary.

However, the most dangerous part of the Protection Code is that it permits the magistrate to authorise detention in police custody for a period beyond the current 15-day limit, extending up to 90 days. Such detention extending to 90 days is for offences punishable with death, life imprisonment and imprisonment for a term of not less than 10 years. The Protection Code enables detention in police custody beyond the current 15-day mandate and up to 60 days for “any other offence” (with imprisonment terms less than the 90-day detention offences). This is a constitutionally burdensome provision that will impinge on the rights of an accused. Spending 90 days with the police having unimpeded access to an accused is debilitating from the point of view of rights to life, health (including mental well-being) and fair trial. At present for any period beyond the 15-day limit for police custody means that the judge can have the accused detained in judicial custody or order other custodial arrangements.

While there are many reforms that should be welcomed in the Protection Code, 2023, all of that will be rendered meaningless if an accused can be detained for long periods of time in police custody. Three months of uninterrupted police custody will render any accused extremely vulnerable to coercion and intimidation. This move must be considered afresh, and members of the parliamentary committee must ask themselves: What if that accused was me?

The writer is a Senior Advocate at the Supreme Court