Menaka Guruswamy reports on the Centre’s proposed criminal law: the issue of custody

There are much welcome reforms to our current criminal procedures. Some of them are based on technological innovations that have entered our daily lives. For example, the whole life of a new issue, starting with Flight information area (First information report) which leads to case notes en route to the indictment culminating in the verdict, which must now be kept online – through digital record keeping. This will make the case record immeasurably more secure and allow faster access when necessary. It is worth noting that when our homes are searched and items found confiscated, these actions must be accompanied by mandatory video recording. This is a critical fix as it is a protection against the planting of evidence and can be used by the defense to contest alleged seizures.

The Protection Act also provides for a “zero” registration. Flight information area“. This type of Flight information area It is registered when a police station receives a complaint about an alleged crime committed within the jurisdiction of another police station. Here, the original police station records Flight information area Then he was transferred to the competent police station for further investigations.

The Protection Act now requires a forensic expert to visit a crime scene and collect forensic evidence to obtain information relating to an offense punishable by at least seven years’ imprisonment. Continuing with changes in the pandemic era, the Protection Act allows for trials, investigations and procedures, including the examination and recording of evidence, to be conducted electronically or via the Internet. This makes it more convenient for defendants and witnesses to participate in and complete these requirements of trial processes.

Another welcome reform related to the provision of a penalty for the prosecution of a public servant. The Protection Act now states that the decision to grant or deny punishment to prosecute a public servant must be made by the government within 120 days of receiving the request. If the government fails to do so, the penalty will be deemed to have been awarded. In addition, no penalty may be imposed in cases involving public officials when they are accused of sexual offenses or human trafficking. Further reform comes in the form of a provision stating that no person may be arrested without the prior permission of an officer of the minimum rank of Deputy Superintendent of Police for offenses punishable by imprisonment of less than three years, if the accused is over the age of 60.

Now, let us turn to the areas of special interest that need close study by the Parliamentary Committee. It is a matter of concern that the Protection Act allows for trial in absentia if the judge is satisfied that “the personal appearance of the accused before the court is not necessary in the interests of justice” or if the accused “constantly disturbs the proceedings in court”. There is ample room for misuse of a provision like this given the wide leeway afforded to the judge in deciding when the presence of the accused is not necessary.

However, the most dangerous part of the Protection Act is that it allows a judge to allow detention in police custody for a period beyond the current limit of 15 days, extending up to 90 days. This detention extends to 90 days for offenses punishable by death, life imprisonment and imprisonment for a minimum of 10 years. The Protection Act allows for detention in police custody beyond the current 15 days and up to 60 days for “any other offence” (with prison terms less than 90 days for detention offences). This is a constitutionally burdensome provision that would infringe on the rights of the accused. Spending 90 days with unhindered police access to the accused is exhausting from the standpoint of the right to life, health (including mental health) and fair trial. At present, any period beyond the 15-day limit for police custody means that a judge can hold the accused in judicial custody or order other detention arrangements.

While there are many reforms to be welcomed in the Protection Act 2023, it will all become meaningless if the accused can be held for long periods in police custody. Three months of uninterrupted police custody would leave any suspect extremely vulnerable to coercion and intimidation. This step must be reconsidered, and the members of the parliamentary committee must ask themselves: What if this accused is me?

The writer is a senior attorney at the Supreme Court