Wrong diagnosis It is unfortunate that Government of India without diagnosing the disease have injected a wrong medicine into the realm of administration. In the month of December 2008, the Lok Sabha has passed an amendment to Section 41 of the Code of Criminal Procedure that has far reaching effect in the field of criminal justice in India.
Section 41 of the Code of Criminal Procedure earlier empowered police to arrest any person without warrant or order from the Magistrate who is reasonably suspected of concerned in any cognizable offence. But now after the amendment, the police would not be able to arrest a person merely on the ground of suspicion, if the offence alleged to have been committed inflicts a punishment of imprisonment for a period up to seven years. However, the liberty of police to arrest a person on the grounds of suspicion is not affected in cases where punishment is imprisonment for more than seven years.
Suspected person may now be called to a police station or to an appointed place for enquiry. Based on logical evidence, the police may have to take orders from the magistrate before arresting the suspected person. This amendment would not affect the cases where punishment is imprisonment for a period of more than seven years.
People often felt that wide sweeping power granted under Section 41 of the Code of Criminal Procedure was being misused by the police and that innocent and totally unconcerned persons were being arrested for various reasons. This cry of the citizen is supported by the observation of the National Police Commission which opined that 60 per cent of the arrests made by the police in the country are unnecessary.
Police Reform – need of the hour
In view of the observation by the National Police Commission, the parliament would have done better to redefine the role of police in their attitude and functioning. Arrest on the ground of suspicion should not be the first act. Prudence, reality and in-depth study of the crime scene would drive the police to a better result.
Prejudiced and indiscriminate arrests sans logic by police lead the people to feel insecure and our leaders thought an amendment would cure this defect.
Amendment may increase cyber crime in India
Unfortunately, the amendment has affected the cyber law and created a situation where it is feared that cyber crimes may increase in India. Cyber criminals are educated, skilled and intellectual. Tracing their abode is like tracing the footprints of a fish in water. The deterrent in cyber criminals’ mind that they may face arrest if their crime is complained of, is also non-existent now.
The Information Technology Act, 2000 and the Indian Penal Code, 1860 deal with cyber crimes and punishments thereof.
Even though a cyber criminal commits serious offences like: unauthorized access, unauthorized extraction of data, introduction of virus, unauthorized damage to computer system, unauthorized disruption of computer system, unauthorized denial of access, assisting unauthorized access, tampering or manipulating computers for financial benefit (all under Section 43), tampering with computer source documents (Section 65) he would not liable to arrested on the ground of suspicion.
A cyber criminal may be arrested on the ground of suspicion under Section 67 for publishing information which is obscene in electronic form (pornography) if he had already been convicted for such an offence earlier and under Section 70 for accessing protected computer systems because these two sections provide for a punishment of imprisonment up to 10 years.
No cyber criminal may be arrested on the ground of suspicion under the provisions of Indian Penal Code even though he is suspected to have committed serious offences like destruction of documents to prevent its production as evidence (Section 204), extortion (Section 384), forgery (Section 465) as none of the provisions concerned with cyber crime would attract punishment of imprisonment for more than seven years. I remind you that I am talking only about cyber crimes.
Had there been no misuse of power by police under Section of 41 of the Code of Criminal Procedure Code leading to the present amendment, had there been faith of people in police regarding unnecessary arrests being made under the guise of catching the criminal, there could have been a better platform for police to deal firmly with the cyber criminals.
In the absence of a strong fear in the minds of cyber criminals, due to amendment, it is feared that the cyber crime rate may increase in India.
