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Station bail is not abolished. Central government hasn’t made any changes to section 41A CrPC

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A post claiming that ‘to curb the abuse of power by the police, the central government has made changes to section 41A CrPC and abolished station bail’ is being shared on social media platforms. But is station bail really abolished? Did the central government make any changes to section 41A CrPC? Let’s find out through this article.

The archived version of the post can be seen here.   

Claim: Union Law Department has amended Section 41A of CrPC and cancelled the police station bail in order to check corruption in the police department.

Fact: The Law Ministry has not made any recent changes to section 41A of CrPC. Even though the 2008 & 2010 CrPC amendment acts were repealed in 2015, according to the General Clauses Act (1897), repealing an amendment act does not repeal or have any impact on the changes made through the amendment act to the original act. The amendments made to the original act will be intact until and unless the original act is repealed/amended explicitly. Hence the claim made is FALSE

The URL of the article provided in the post is now deleted, but the archived version of the same indicates that it was originally published in the year 2015. We analysed why this went viral in 2015 and found that it is because of the misinterpretation of the Repealing and Amendment (Second) Act, 2015 which repealed the CrPC amendment acts made in 2008 & 2010 among many other acts. The passage of this repealing act in 2015 had created quite a buzz on social media back then, claiming that the power of police to grant a station bail for the accused has been curbed and thereafter everyone, for every case, has to approach the court to get bail. This message has once again gone viral now.

But does the repealing of an amendment act repeal the contents of the amendment to the original act which it was intended to amend? Let’s find out.

What is an Amendment?The modification of materials by addition of supplemental information;  the deletion of unnecessary, undesirable, or outdated information; or  the correction of errors existing in the text.

According to the General Clauses Act, 1897Repeal of act making textual amendment in act or regulation- Where any central act or regulation made after the commencement of this act repeals any enactment by which the text of any central act regulation amended by the express omission, insertion or substitution of any matter then, unless a different intention appears, the repeal shall not affect the continuance of any such amendment.”

The above clearly explains that repealing an amendment act does not in any way repeal the provisions which were introduced to the original act through the amendment act. The amendments made to the original act will remain intact unless any particular provision or the act in toto is repealed/amended explicitly. According to the Reference Note of the Parliament library, having imparted the amendments to the main act, the amendment acts have served their purpose and have no further reasons for their existence. Hence, repealing acts are intended to excise such dead matter (like the amendment acts) from the statute book and to reduce its volume. Here is more about the repealing of the amendment acts from the central government appointed two-member committee report, available on the website of the Legislative Department of the Union Ministry of Law & Justice.

Let’s understand this through an example. The Hindu Succession Act, 2005 (passed in 2005) had amended the Hindu Succession Act, 1956. According to the amendments made in 2005, on and from the commencement of the act, in joint Hindu family governed by the Mitkarshara law, the daughter of the coparcener shall

  • By birth become a coparcener in her own right in the same manner as the son.
  • Have the same right in the coparcenary property as she would have had if she had been a son
  • Be subject to the same liabilities in respect of the said coparcenary property as that of the son.

The Repealing and Amending (Second) Act, 2015 had also repealed The Hindu Succession Act, 2005. However, this doesn’t mean that the amendments made through that 2005 act are also repealed, as is evident from the various court judgements delivered after 2015 based on the amendments introduced in 2005. The supreme court in Dannama @ Suman Surpur Vs Aman & others in 2018, delivered the judgement in accordance with the Hindu Succession Act, 2005.

Similarly, the Delimitation Amendment Act,2002 which is intended to redraw the boundaries of the Lok Sabha and the State assembly constituencies according to the 2001 census to represent the change in the population is repealed by the Repealing and Amending act, 2015. This doesn’t mean that the amendments made were repealed as the current day state assembly and Lok Sabha constituency boundaries are demarcated based on the provisions added through the delimitation amendment act.

What are the amendments made to CrPC in 2008 ?

This CrPC amendment act passed in 2008 has amended the Code of Criminal Procedure Act, 1973 and introduced three new sections (41A, 41B,41C) into it.

41A. Notice of appearance before police officer –

(1) The police officer may, in all cases where the arrest of a person is not required under the provisions of sub-section(1) of section 41, issue a notice directing the person against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence, to appear before him or at such other place as may be specified in the notice.

(2) Where such a notice is issued to any person, it shall be the duty of that person to comply with the terms of the notice.

(3) Where such person complies and continues to comply with the notice, he shall not be arrested in respect of the offence referred to in the notice unless, for reasons to be recorded, the police officer is of the opinion that he ought to be arrested.

(4) Where such person, at any time, fails to comply with the terms of the notice or is unwilling to identify himself, the police officer may, subject to such orders as may have been passed by a competent Court in this behalf, arrest him for the offence mentioned in the notice.”

41B. Procedure of arrest and duties of officer making arrest Procedure of arrest and duties of officer making arrest. – Every police officer while making an arrest shall-

(a) bear an accurate, visible and clear identification of his name which will facilitate easy identification.

(b) prepare a memorandum of arrest which shall be-

(i) attested by at least one witness, who is a member of the family of the person arrested or a respectable member of the locality where the arrest is made.

(ii) countersigned by the person arrested and

(c) inform the person arrested, unless the memorandum is attested by a member of his family, that he has a right to have a relative or a friend named by him to be informed of his arrest.

Supreme Court observations on 41A CrPC in the background of Section 498A IPC

The above amendments have become the bone of contention because of the allegations over abuse of power of arrest by the police especially in cases involving IPC Section 498A, which being a cognizable and non-compoundable offence did not need a warrant for arrest. In the light of these allegations, the central government amended the 2008 act and substituted the word “may” with “shall” through the Code of Criminal Procedure (Amendment), 2010. Notwithstanding these amendments, there have been instances of abuse of power by the police, as noted by the Supreme Court, where the police repeatedly summoning those who are not accused of the crime to appear before them.

In the wake of the supreme court judgement in 2014 in Arnesh kumar Vs State of Bihar which involves Section 498A of IPC, which is a non-bailable offence, the Supreme Court felt that section 498A IPC is being used as a weapon rather than a shield by the disgruntled wives. The court directed all the state governments to instruct its police department not to automatically arrest when a case under Section 498A of the IPC (dowry harassment) is registered but to satisfy themselves about the necessity for arrest under the parameters laid down flowing from Section 41 CrPC. It also said that the police officer shall furnish the reasons and materials which necessitated the arrest before the magistrate. The Central Ministry of Home Affairs has issued some guidelines in 2014 to all the states and the union territories in this regard.

Despite the supreme court judgement and the guidelines from the Ministry of Home Affairs in 2014, as noted in Rajesh Sharma vs State of U.P and in other sporadic events elsewhere in the country, the Supreme court and few other state High courts made similar observations regarding the misuse of power through section 41A of CrPC in the background of 498A IPC.

According to the 2018 report of National Crime Record Bureau (NCRB) more than one lakh cases have been reported under Sec 498A were reported in India in 2018. These cases made up for 27.3% of all the cases of crime against women reported in 2018, though the conviction rate under sec 498A has decreased and is at 13% in 2018. However, to conclude that this section is misused just because of the low conviction rate would not be fair.

What does all this mean?

The above explanation proves that the amendments made to any act remain untouched until and unless the original act in toto or in particular any part of the act is repealed/amended explicitly. Even in 2018 & 2019, many states have issued similar guidelines regarding section 41A CrPC. And with this, we can conclude that even though the Repealing and Amendment (Second) Act, 2015 had repealed both the CrPC amendment acts passed in 2008 & 2010, the provisions under CrPC Section 41A introduced through these amendments are intact and there is no change in the procedure. Also, the Law Ministry had not made any changes to this section in recent times. Hence the claim made in the post is FALSE.

Update (19 July 2020):
The title and structure of the article is changed for easier understanding of the reader.

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