INDIAN EVIDENCE AMENDMENT BILL, 2016

INTRODUCTION

INDIAN EVIDENCE AMENDMENT BILL, 2016 was introduced in the Lok Sabha seeking changes to the 1872 Indian Evidence Act to make it easier to deal with cybercrime and custodial abuse cases. A variety of suggestions had been made by an advisory group created by the Ministry of Home Affairs (MHA), the key one being a review of the Act to make it function.

The committee led by Dr. Gulshan Rai, statewide cyber security Coordinator, indicated that although there was a 50% rise in cybercrime cases in 2014 compared to 2013, the rate of prosecution was very poor due to lack of evidence. After considering the Committee’s recommendations and also the expertise it acquired, the Government gave the Lok Sabha notice of modifications as approved by the Cabinet. The lok Sabha passed the Bill on March 10^th, 2017 and now is pending for consideration and passage in the Rajya Sabha. Mr. Husain Dalwai brought it into the Rajya representing Maharashtra in the Rajya Sabha.

Yet instead of concentrating on both cyber crime and custodial abuse, it has focused exclusively on the latter. There was strong opposition to the drafting on cyber crime in the Lok Sabha, as a consequence of which it was withdrawn. The government plans to introduce it later, but the current Bill only focuses on police custodial violence. This article explores the statements of objects and reasons and the inserted provision after the section 114A, in the Indian Evidence Act, 1872.

STATEMENT OF OBJECTS AND REASONS

The Bill states in its List of Incidents and Reasons that, according to data collected by the National Crime Record Bureau (NCRB) in 2013, 115 deaths in custody were across the country, followed by 93 in 2014 and 97 in 2015, respectively. It’s amazing to note that out of the 97 deaths in2015, only 9 were natural deaths and the maximum was reported as suicides, that is, less than 10 percent.¹

It is disturbing that most of these deaths occur in police custody while courts have not required these men. People are dying in police custody before they can even be brought before the courts. In such cases, the criminal justice system is particularly slow to act.

The Law Commission of India pointed out in its 152^nd Report on Custodial Crimes of 1994, that one of the reasons for law convictions in custodial crimes cases is because they are very difficult to prove, because it only occurs in the presence of an accuses police officer. If the victims have died, the crime will become even harder to prove. Consequently, the Commission suggested that, in those cases where there is evidence that death or injury occurred while in custody, it be concluded that death or injury was caused by the custodial police officer. This puts that blame on the convicted police officer of claiming innocence. Although other Report Recommendations, most importantly, introduced the arrester’s rights into the Code, this critical clause has been left out. I, therefore plan to incorporate by adding a new provision, 114(B), an alteration to the Indian Evidence Act 1872.²

Before dealing with the new inserted provision through this amendment bill, take a glance on section 114 and 114A as what it talks about:

Section 114 of the Act talks about as how the Court may presume the existence of certain facts– In relation to the facts of the particular case, the court may assume the nature of any fact that it thinks likely to have occurred, having regard to the normal course of natural occurrence, human activity and public and private business.

Illustrations:

The Judge may presume-

• That either a man who is in possession of stolen goods shortly after the theft or the goods that realized they were stolen were received, unless he could account for his possession;
• Whether an accomplice is worthless or creditable, unless it is substantiated in the content Indication;
• That a bill of exchange, approved or supported, has been approved for effective judgment;
• That thing or state of affairs that has been demonstrated to exist within a shorter duration than in which these events or declarations of things generally cease to exist;
• The judicial and official activities were carried out on a regular basis;
• In particular cases; that the common course of business has been followed;
• The proof that will and would not be produced, will be produced if it were produced unfavorable to the individual who refuses it;
• That if a man fails to respond to a question that he does not answer, response by statute, the response would be unfavorable to him if given;
• That where a document containing a “obligation” is in the obligor’s possession, the duty was discharged;
• However, the Court shall also take into consideration the following details when deciding whether or not such maxims refer to the particular case before it-

As to illustrations (a)- a shopkeeper has a marked rupee in his Bill shortly after it has been stolen, and cannot account specifically for his possession, but continually receives rupees in the course of his business;

As to illustrations (b) – A, a person of the highest character is tried by an act of negligence in arranging certain machinery for causing the death of a man. B, a person of similarly decent character,  who also took part in the arrangement, describes precisely what was done and acknowledges and explains A and him self’s common recklessness;

As to illustration (b) – Several individuals commit a felony. A, B and C, the criminals there are being caught on the spot and held apart. Often an account of the crime involving D, and the accounts validate each other in such a way as to make the previous concert highly unlikely.

As to illustration (c) – A, the drawer of an exchange bill, was an entrepreneur, B the acceptor, was a young, ignorant person, entirely under the influence of A.

As to illustration (d) – It is proven that a river flowed in a certain direction five years ago, but it is understood that floods have occurred since that time that could alter its path;

As to illustration (e) – In extraordinary cases, a judicial act, whose regularity is at issue, has been carried out;

As to illustration (f) – The question is, whether it received a post. It is shown to have been posted but disruptions disrupted the normal course of the post;

As to illustration (g) – A man refuses to produce a document which would bear on a contract of minor significant over which he is being sued, but which could also damage his family’s feelings and reputation;

As to illustration (h) – A man refuses to answer a question that he is not required by law to answer, but the answer to that question may cause him loss in matters unrelated to the matter in question;

As to illustration (i) – A bond is an obligor’s property, but the conditions of the cases are such that it may have been robbed.³

Section 114A of the Act:

In prosecutions for rape pursuant to clause (a), clause (b), clause (c), clause (d), clause (e), clause (f), clause (g), clause (h), clause (i), clause(j), clause (k), clause (l), clause (m), clause (n), subsection (2) of the Indian Penal Code; where the accused’s sexual contract is proved and the question arises as to whether it was without the consent of the women claimed to have been raped and that women shows in her testimony that she did not agree to it, the court shall conclude that she did not consent.

Explanation.-In this section ‘sexual intercourse’ implies any of the actions referred to in section 375 of subsection (a) to (d) of the Indian Penal Code.⁴

The insertion of new section through this amendment is given below-

Section 114B: Presumption of death or injury by the custodian in prosecution

• In a case against a police officer for a crime created by a statute claimed to have caused a person’s death or bodily injury, if there is proof of that the death or injury was caused during a period when that person was in police custody, the court may conclude that the death or injury was caused by the police officer having the person’s custody during that time.
• The Court shall take into account all relevant circumstances, including in particular, in deciding whether or not to make a presumption under subsection (1)-

1. The time of detention,
2. Any statement by the victim as to how the injuries were received, which is admissible as evidence,
3. Proof of any medical professional who might have treated the victims and
4. Evidence of any judge who may have documented or tried to record the victim’s declaration.⁵

Thus, the provisions of making amendments are very necessary as well as fruitful for the future coming cases. As it a primary purpose is to grant a law with the safeguard of the federal command. While making the law, legislation always kept in mind that it will be subject to amendment for the future need. Amendment always brought with the intention to overcome the loopholes in the law, whenever the question arises in any matter.

SOURCES:

1. Statement of Objects and Reasons, THE INDIAN EVIDENCE (AMENDMENT) BILL, 2016.
2. 152^ndReport on Custodial Crimes, THE LAW COMMISSION OF INDIA, Aug 26, 1994, http://lawcommissionofindia.nic.in/101-169/Report152.pdf (Accessed on 5/12/2017).
3. Section 114, Indian Evidence Act, 1872.
4. Section 114A, Indian Evidence Act, 1872.
5. Section 2, THE INDIAN EVIDENCE (AMENDMENT) BILL, 2016.

This blog is written by Akriti Sharma, Banasthali University

Some of her blogs-

• INTRODUCTION TO INDIAN EVIDENCE LAW

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