Act 005 of 2009 : Code of Criminal Procedure (Amendment) Act, 2008

7 Jan 2009

Preamble

Code of Criminal Procedure (Amendment) Act, 20081

[Act 5 of 2009][7th January, 2009]

[Repealed by Act 19 of 2015*]

An Act further to amend the Code of Criminal Procedure, 1973

Be it enacted by Parliament in the Fifty-ninth Year of the Republic of India as follows:-

1 Received the assent of the President on 7-1-2009 and published in the Gazette of India, Extraordinary, Part II, Section 1, dated 9-1-2009, pp. 1-13, No. 6.

* Ed.: Act 5 of 2009 repealed by Act 19 of 2015, S. 2 & Sch. I. See also S. 4 of the Repealing and Amending Act, 2015:

"4. Savings.- The repeal by this Act of any enactment shall not affect any Act in which such enactment has been applied, incorporated or referred to;

and this Act shall not affect the validity, invalidity, effect or consequences of anything already done or suffered, or any right, title, obligation or liability already acquired, accrued or incurred, or any remedy or proceeding in respect thereof, or any release or discharge of or from any debt, penalty, obligation, liability, claim or demand, or any indemnity already granted, or the proof of any past act or thing;

nor shall this Act affect any principle or rule of law, or established jurisdiction, form or course of pleading, practice or procedure, or existing usage, custom, privilege, restriction, exemption, office or appointment, notwithstanding that the same respectively may have been in any manner affirmed, recognised or derived by, in or from any enactment hereby repealed;

nor shall the repeal by this Act of any enactment provide or restore any jurisdiction, office, custom, liability, right, title, privilege, restriction, exemption, usage, practice, procedure or other matter or thing not now existing or in force."

SOR Statement of Objects and Reasons

Prefatory Note-Statement of Objects and Reasons.-The need to amend the Code of Criminal Procedure, 1973 to ensure fair and speedy justice and to tone up the criminal justice system has been felt for quite sometime. The Law Commission has undertaken a comprehensive review of the Code of Criminal Procedure in its 154th report and its recommendations have been found very appropriate, particularly those relating to provisions concerning arrest, custody and remand, procedure for summons and warrant-cases, compounding of offences, victimology, special protection in respect of women and inquiry and trial of persons of unsound mind. Also, as per the Law Commission's 177th report relating to arrest, it has been found necessary to revise the law to maintain a balance between the liberty of the citizens and the society's interest in maintenance of peace as well as law and order.

2. The need has also been felt to include measures for preventing the growing tendency of witnesses being induced or threatened to turn hostile by the accused parties who are influential, rich and powerful. At present, the victims are the worst sufferers in a crime and they don't have much role in the court proceedings. They need to be given certain rights and compensation, so that there is no distortion of the criminal justice system. The application of technology in investigation, inquiry and trial is expected to reduce delays, help in gathering credible evidences, minimise the risk of escape of the remand prisoners during transit and also facilitate utilisation of police personnel for other duties. There is an urgent need to provide relief to women, particularly victims of sexual offences, and provide fair-trial to persons of unsound mind who are not able to defend themselves. To expedite the trial of minor offences, definition of warrant-case and summons-case are to be changed so that more cases can be disposed of in a summary manner.

3. The Code of Criminal Procedure (Amendment) Bill, 2006 seeks to achieve the above objectives.

Section 1. Short title and commencement

1. Short title and commencement.-(1) This Act may be called the Code of Criminal Procedure (Amendment) Act, 2008.

(2) It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint; and different dates may be appointed for different provisions of this Act.

Section 2. Amendment of Section 2

2. Amendment of Section 2.-In Section 2 of the Code of Criminal Procedure, 1973 (2 of 1974) (hereinafter referred to as the principal Act), after clause (w), the following clause shall be inserted, namely:-

‘(wa) "victim" means a person who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged and the expression "victim" includes his or her guardian or legal heir;’.

Section 3. Amendment of Section 24

3. Amendment of Section 24.-In Section 24 of the principal Act, in sub-section (8), the following proviso shall be inserted, namely:-

"Provided that the Court may permit the victim to engage an advocate of this choice to assist the prosecution under this sub-section.".

Section 4. Amendment of Section 26

4. Amendment of Section 26.-In Section 26 of the principal Act, in clause (a), the following proviso shall be inserted, namely:-

"Provided that any offence under Section 376 and Sections 376-A to 376-D of the Indian Penal Code (45 of 1860) shall be tried as far as practicable by a Court presided over by a woman.".

Section 5. Amendment of Section 41

5. Amendment of Section 41.-In Section 41 of the principal Act,-

(i) in sub-section (1), for clauses (a) and (b), the following clauses shall be substituted, namely:-

"(a) who commits, in the presence of a police officer, a cognizable offence;

(b) 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 punishable with imprisonment for a term which may be less than seven years or which may extend to seven years whether with or without fine, if the following conditions are satisfied, namely:-

(i) the police officer has reason to believe on the basis of such complaint, information, or suspicion that such person has committed the said offence;

(ii) the police office is satisfied that such arrest is necessary-

(a) to prevent such person from committing any further offence; or

(b) for proper investigation of the offence; or

(c) to prevent such person from causing the evidence of the offence to disappear or tampering with such evidence in any manner; or

(d) to prevent such person from making any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to the police officer; or

(e) as unless such person is arrested, his presence in the Court whenever required cannot be ensured,

and the police officer shall record while making such arrest, his reasons in writing:

1[Provided that a police officer shall, in all cases where the arrest of a person is not required under the provisions of this sub-section, record the reasons in writing for not making the arrest.]

(ba) against whom credible information has been received that he has committed a cognizable offence punishable with imprisonment for a term which may extend to more than seven years whether with or without fine or with death sentence and the police officer has reason to believe on the basis of that information that such person has committed the said offence;";

(ii) for sub-section (2), the following sub-section shall be substituted, namely:-

"(2) Subject to the provisions of Section 42, no person concerned in a non-cognizable offence or against whom a complaint has been made or credible information has been received or reasonable suspicion exists of his having so concerned, shall be arrested except under a warrant or order of a Magistrate.".

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Prior to amendment by Act 41 of 2010, Section 5 read as:

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5. Amendment of Section 41.-In Section 41 of the principal Act,-

(i) in sub-section (1), for clauses (a) and (b), the following clauses shall be substituted, namely:-

"(a) who commits, in the presence of a police officer, a cognizable offence;

(b) 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 punishable with imprisonment for a term which may be less than seven years or which may extend to seven years whether with or without fine, if the following conditions are satisfied, namely:-

(i) the police officer has reason to believe on the basis of such complaint, information, or suspicion that such person has committed the said offence;

(ii) the police office is satisfied that such arrest is necessary-

(a) to prevent such person from committing any further offence; or

(b) for proper investigation of the offence; or

(c) to prevent such person from causing the evidence of the offence to disappear or tampering with such evidence in any manner; or

(d) to prevent such person from making any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to the police officer; or

(e) as unless such person is arrested, his presence in the Court whenever required cannot be ensured,

and the police officer shall record while making such arrest, his reasons in writing.

(ba) against whom credible information has been received that he has committed a cognizable offence punishable with imprisonment for a term which may extend to more than seven years whether with or without fine or with death sentence and the police officer has reason to believe on the basis of that information that such person has committed the said offence;";

(ii) for sub-section (2), the following sub-section shall be substituted, namely:-

"(2) Subject to the provisions of Section 42, no person concerned in a non-cognizable offence or against whom a complaint has been made or credible information has been received or reasonable suspicion exists of his having so concerned, shall be arrested except under a warrant or order of a Magistrate.".

1 Inserted by Act 41 of 2010, Section 2 (w.e.f. 2-11-2010).

Section 6. Insertion of new Sections 41-A, 41-B, 41-C and 41-D

6. Insertion of new Sections 41-A, 41-B, 41-C and 41-D.-After Section 41 of the principal Act, the following new sections shall be inserted, namely:-

"41-A. Notice of appearance before police officer.-(1) 1[The police officer shall], 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.

2[(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.]

41-B. 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.

41-C. Control room at districts.-(1) The State Government shall establish a police control room-

(a) in every district; and

(b) at State level.

(2) The State Government shall cause to be displayed on the notice board kept outside the control rooms at every district, the names and addresses of the persons arrested and the name and designation of the police officers who made the arrests.

(3) The control room at the Police Headquarters at the State level shall collect from time to time, details about the persons arrested, nature of the offence with which they are charged and maintain a database for the information of the general public.

41-D. Right of arrested person to meet an advocate of his choice during interrogation.-When any person is arrested and interrogated by the police, he shall be entitled to meet an advocate of his choice during interrogation, though not throughout interrogation.".

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Prior to amendment by Act 41 of 2010, Section 6 reas as:

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6. Insertion of new Sections 41-A, 41-B, 41-C and 41-D.-After Section 41 of the principal Act, the following new sections shall be inserted, namely:-

"41-A. 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, it shall be lawful for the police officer to arrest him for the offence mentioned in the notice, subject to such orders as may have been passed in this behalf by a competent Court.

41-B. 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.

41-C. Control room at districts.-(1) The State Government shall establish a police control room-

(a) in every district; and

(b) at State level.

(2) The State Government shall cause to be displayed on the notice board kept outside the control rooms at every district, the names and addresses of the persons arrested and the name and designation of the police officers who made the arrests.

(3) The control room at the Police Headquarters at the State level shall collect from time to time, details about the persons arrested, nature of the offence with which they are charged and maintain a database for the information of the general public.

41-D. Right of arrested person to meet an advocate of his choice during interrogation.-When any person is arrested and interrogated by the police, he shall be entitled to meet an advocate of his choice during interrogation, though not throughout interrogation.".

1 Substituted for "The police officer may" by Act 41 of 2010, Section 3 (w.e.f. 2-11-2010).

2 Substituted by Act 41 of 2010, Section 3 (w.e.f. 2-11-2010).

Section 7. Amendment of Section 46

7. Amendment of Section 46.-In Section 46 of the principal Act, in sub-section (1), the following proviso shall be inserted, namely:-

"Provided that where a woman is to be arrested, unless the circumstances indicate to the contrary, her submission to custody on an oral intimation of arrest shall be presumed and, unless the circumstances otherwise require or unless the police officer is a female, the police officer shall not touch the person of the woman for making her arrest.".

Section 8. Substitution of new section for Section 54

8. Substitution of new section for Section 54.-For Section 54 of the principal Act, the following section shall be substituted, namely:-

"54. Examination of arrested person by medical officer.-(1) When any person is arrested, he shall be examined by a medical officer in the service of Central or State Government, and in case the medical officer is not available, by a registered medical practitioner soon after the arrest is made:

Provided that where the arrested person is a female, the examination of the body shall be made only by or under the supervision of a female medical officer, and in case the female medical officer is not available, by a female registered medical practitioner.

(2) The medical officer or a registered medical practitioner so examining the arrested person shall prepare the record of such examination, mentioning therein any injuries or marks of violence upon the person arrested, and the approximate time when such injuries or marks may have been inflicted.

(3) Where an examination is made under sub-section (1), a copy of the report of such examination shall be furnished by the medical officer or registered medical practitioner, as the case may be, to the arrested person or the person nominated by such arrested person.".

Section 9. Insertion of new Section 55-A

9. Insertion of new Section 55-A.-After Section 55 of the principal Act, the following section shall be inserted, namely:-

"55-A. Health and safety of arrested person.-It shall be the duty of the person having the custody of an accused to take reasonable care of the health and safety of the accused.".

Section 10. Insertion of new Section 60-A

10. Insertion of new Section 60-A.-After Section 60 of the principal Act, the following section shall be inserted, namely:-

"60-A. Arrest to be made strictly according to the Code.-No arrest shall be made except in accordance with the provisions of this Code or any other law for the time being in force providing for arrest.".

Section 11. Amendment of Section 157

11. Amendment of Section 157.-In Section 157 of the principal Act, in sub-section (1), after the proviso, the following proviso shall be inserted, namely:-

"Provided further that in relation to an offence of rape, the recording of statement of the victim shall be conducted at the residence of the victim or in the place of her choice and as far as practicable by a woman police officer in the presence of her parents or guardian or near relatives or social worker of the locality.".

Section 12. Amendment of Section 161

12. Amendment of Section 161.-In Section 161 of the principal Act, in sub-section (3), the following provisos shall be inserted, namely:-

"Provided that statement made under this sub-section may also be recorded by audio-video electronic means.".

Section 13. Amendment of Section 164

13. Amendment of Section 164.-In Section 164 of the principal Act, in sub-section (1), for the proviso, the following provisos shall be substituted, namely:-

"Provided that any confession or statement made under this sub-section may also be recorded by audio-video electronic means in the presence of the advocate of the person accused of an offence:

Provided further that no confession shall be recorded by a police officer on whom any power of a Magistrate has been conferred under any law for the time being in force.".

Section 14. Amendment of Section 167

14. Amendment of Section 167.-In Section 167 of the principal Act, in sub-section (2),-

(a) in the proviso,-

(i) for clause (b), the following clause shall be substituted, namely:-

"(b) no Magistrate shall authorise detention of the accused in custody of the police under this section unless the accused is produced before him in person for the first time and subsequently every time till the accused remains in the custody of the police, but the Magistrate may extend further detention in judicial custody on production of the accused either in person or through the medium of electronic video linkage;";

(ii) for Explanation II, the following Explanation shall be substituted, namely:-

"Explanation II.-If any question arises whether an accused person was produced before the Magistrate as required under clause (b), the production of the accused person may be proved by his signature on the order authorising detention or by the order certified by the Magistrate as to production of the accused person through the medium of electronic video linkage, as the case may be.";

(b) after the proviso, the following proviso shall be inserted, namely:-

"Provided further that in case of a woman under eighteen years of age, the detention shall be authorised to be in the custody of a remand home or recognised social institution.".

Section 15. Amendment of Section 172

15. Amendment of Section 172.-In Section 172 of the principal Act, after sub-section (1), the following sub-sections shall be inserted, namely:-

"(1-A) The statements of witnesses recorded during the course of investigation under Section 161 shall be inserted in the case diary.

(1-B) The diary referred to in sub-section (1) shall be a volume and duly paginated.".

Section 16. Amendment of Section 173

16. Amendment of Section 173.-In Section 173 of the principal Act,-

(a) after sub-section (1), the following sub-section shall be inserted, namely:-

"(1-A) The investigation in relation to rape of a child may be completed within three months from the date on which the information was recorded by the officer in charge of the police station.";

(b) in sub-section (2), after clause (g), the following clause shall be inserted, namely:-

"(h) whether the report of medical examination of the woman has been attached where investigation relates to an offence under Sections 376, 376-A, 376-B, 376-C or 376-D of the Indian Penal Code (45 of 1860).".

Section 17. Insertion of new Section 195-A

17. Insertion of new Section 195-A.-After Section 195 of the principal Act, the following section shall be inserted, namely:-

"195-A. Procedure for witnesses in case of threatening, etc.-A witness or any other person may file a complaint in relation to an offence under Section 195-A of the Indian Penal Code (45 of 1860).".

Section 18. Amendment of Section 198

18. Amendment of Section 198.-In Section 198 of the principal Act, in sub-section (6), for the words "fifteen years of age", the words "eighteen years of age" shall be substituted.

Section 19. Amendment of Section 242

19. Amendment of Section 242.-In Section 242 of the principal Act, in sub-section (1), the following proviso shall be inserted, namely:-

"Provided that the Magistrate shall supply in advance to the accused, the statement of witnesses recorded during investigation by the police.".

Section 20. Amendment of Section 275

20. Amendment of Section 275.-In Section 275 of the principal Act, in sub-section (1), the following proviso shall be inserted, namely:-

"Provided that evidence of a witness under this sub-section may also be recorded by audio-video electronic means in the presence of the advocate of the person accused of the offence.".

Section 21. Amendment of Section 309

21. Amendment of Section 309.-In Section 309 of the principal Act,-

(a) in sub-section (1), the following proviso shall be inserted, namely:-

"Provided that when the inquiry or trial relates to an offence under Sections 376 to 376-D of the Indian Penal Code (45 of 1860), the inquiry or trial shall, as far as possible, be completed within a period of two months from the date of commencement of the examination of witnesses.";

(b) in sub-section (2), after the third proviso and before Explanation I, the following proviso shall be inserted, namely:-

"Provided also that-

(a) no adjournment shall be granted at the request of a party, except where the circumstances are beyond the control of that party;

(b) the fact that the pleader of a party is engaged in another Court, shall not be a ground for adjournment;

(c) where a witness is present in Court but a party or his pleader is not present or the party or his pleader though present in Court, is not ready to examine or cross-examine the witness, the Court may, if thinks fit, record the statement of the witness and pass such orders as it thinks fit dispensing with the examination-in-chief or cross-examination of the witness, as the case may be.".

Section 22. Amendment of Section 313

22. Amendment of Section 313.-In Section 313 of the principal Act, after sub-section (4), the following sub-section shall be inserted, namely:-

"(5) The Court may take help of Prosecutor and Defence Counsel in preparing relevant questions which are to be put to the accused and the Court may permit filing of written statement by the accused as sufficient compliance of this section.".

Section 23. Amendment of Section 320

23. Amendment of Section 320.-In Section 320 of the principal Act,-

(i) in sub-section (1), for the Table, the following Table shall be substituted, namely:-

"TABLE

Offence Section of the Indian Penal Code applicable Person by whom offence may be compounded
1 2 3
Uttering words, etc., with deliberate intent to wound the religious feelings of any person 298 The person whose religious feelings are intended to be wounded
Voluntarily causing hurt 323 The person to whom the hurt is caused
Voluntarily causing hurt on provocation 334 Ditto
Voluntarily causing grievous hurt on grave and sudden provocation 335 Ditto
Wrongfully restraining or confining any person 341, 342 The person restrained or confined
Wrongfully confining a person for three days or more 343 The person confined
Wrongfully confining a person for ten days or more 344 Ditto
Wrongfully confining a person in secret 346 Ditto
Assault or use of criminal force 352, 355, 358 The person assaulted or to whom criminal force is used
Theft 379 The owner of the property stolen
Dishonest misappropriation of property 403 The owner of the property misappropriated
Criminal breach of trust by a carrier, wharfinger, etc. 407 The owner of the property in respect of which the breach of trust has been committed
Dishonestly receiving stolen property knowing it to be stolen 411 The owner of the property stolen
Assisting in the concealment or disposal of stolen property, knowing it to be stolen 414 Ditto
Cheating 417 The person cheated
Cheating by personation 419 Ditto
Fraudulent removal or concealment of property, etc., to prevent distribution among creditors 421 The creditors who are affected thereby
Fraudulent preventing from being made available for his creditors a debt or demand due to the offender. 422 Ditto
Fraudulent execution of deed of transfer containing false statement of consideration 423 The person affected thereby
Fraudulent removal or concealment of property 424 Ditto
Mischief, when the only loss or damage caused is loss or damage to a private person 426, 427 The person to whom the loss or damage is caused
Mischief by killing or maiming animal 428 The owner of the animal
Mischief by killing or maiming cattle, etc. 429 The owner of the cattle or animal
Mischief by injury to works of irrigation by wrongfully diverting water when the only loss or damage caused is loss or damage to private person 430 The person to whom the loss or damage is caused
Criminal trespass 447 The person in possession of the property trespassed upon
House-trespass 448 Ditto
House-trespass to commit an offence (other than theft) punishable with imprisonment 451 The person in possession of the house trespassed upon
Using a false trade or property mark 482 The person to whom loss or injury is caused by such use
Counterfeiting a trade or property mark used by another 483 Ditto
Knowingly selling, or exposing or possessing for sale or for manufacturing purpose, goods marked with a counterfeit property mark 486 Ditto
Criminal breach of contract of service 491 The person with whom the offender has contracted
Adultery 497 The husband of the woman
Enticing or taking away or detaining with criminal intent a married woman 498 The husband of the woman and the woman
Defamation, except such cases as are specified against Section 500 of the Indian Penal Code (45 of 1860) in Column 1 of the Table under sub-section (2) 500 The person defamed
Printing or engraving matter, knowing it to be defamatory 501 Ditto
Sale of printed or engraved substance containing defamatory matter, knowing it to contain such matter 502 Ditto
Insult intended to provoke a breach of the peace 504 The person insulted
Criminal intimidation 506 The person intimidated
Inducing person to believe himself an object of divine displeasure 508 The person induced.";

(ii) in sub-section (2), for the Table the following Table shall be substituted, namely:-

"TABLE

Offence Section of the Indian Penal Code applicable Person by whom offence may be compounded
1 2 3
Causing miscarriage 312 The woman to whom miscarriage is caused
Voluntarily causing grievous hurt 325 The person to whom hurt is caused
Causing hurt by doing an act so rashly and negligently as to endanger human life or the personal safety of others 337 Ditto
Causing grievous hurt by doing an act so rashly and negligently as to endanger human life or the personal safety of others 338 Ditto
Assault or criminal force in attempting wrongfully to confine a person 357 The person assaulted or to whom the force was used
Theft, by clerk or servant of property in possession of master 381 The owner of the property stolen
Criminal breach of trust 406 The owner of property in respect of which breach of trust has been committed
Criminal breach of trust by a clerk or servant 408 The owner of the property in respect of which the breach of trust has been committed
Cheating a person whose interest the offender was bound, either by law or by legal contract, to protect 418 The person cheated
Cheating and dishonestly inducing delivery of property or the making, alteration or destruction of a valuable security 420 The person cheated
Marrying again during the life-time of a husband or wife 494 The husband or wife of the person so marrying
Defamation against the President or the Vice-President or the Governor of a State or the Administrator of a Union territory or a Minister in respect of his public functions when instituted upon a complaint made by the Public Prosecutor 500 The person defamed
Uttering words or sounds or making gestures or exhibiting any object intending to insult the modesty of a woman or intruding upon the privacy of a woman 509 The woman whom it was intended to insult or whose privacy was intruded upon.";

(iii) for sub-section (3), the following sub-section shall be substituted, namely:-

"(3) When an offence is compoundable under this section, the abetment of such offence or an attempt to commit such offence (when such attempt is itself an offence) or where the accused is liable under Sections 34 or 149 of the Indian Penal Code (45 of 1860) may be compounded in like manner.".

Section 24. Amendment of Section 327

24. Amendment of Section 327.-In Section 327 of the principal Act,-

(a) in sub-section (2), after the proviso, the following proviso shall be inserted, namely:-

"Provided further that in camera trial shall be conducted as far as practicable by a woman Judge or Magistrate.";

(b) in sub-section (3), the following proviso shall be inserted, namely:-

"Provided that the ban on printing or publication of trial proceedings in relation to an offence of rape may be lifted, subject to maintaining confidentiality of name and address of the parties.".

Section 25. Amendment of Section 328

25. Amendment of Section 328.-In Section 328 of the principal Act,-

(a) after sub-section (1), the following sub-section shall be inserted, namely:-

"(1-A) If the civil surgeon finds the accused to be of unsound mind, he shall refer such person to a psychiatrist or clinical psychologist for care, treatment and prognosis of the condition and the psychiatrist or clinical psychologist, as the case may be, shall inform the Magistrate whether the accused is suffering from unsoundness of mind or mental retardation:

Provided that if the accused is aggrieved by the information given by the psychiatric or clinical psychologist, as the case may be, to the Magistrate, he may prefer an appeal before the Medical Board which shall consist of-

(a) head of psychiatry unit in the nearest government hospital; and

(b) a faculty member in psychiatry in the nearest medical college;"

(b) for sub-section (3), the following sub-sections shall be substituted, namely:-

"(3) If such Magistrate is informed that the person referred to in sub-section (1-A) is a person of unsound mind, the Magistrate shall further determine whether the unsoundness of mind renders the accused incapable of entering defence and if the accused is found so incapable, the Magistrate shall record a finding to that effect, and shall examine the record of evidence produced by the prosecution and after hearing the advocate of the accused but without questioning the accused, if he finds that no prima facie case is made out against the accused, he shall, instead of postponing the enquiry, discharge the accused and deal with him in the manner provided under Section 330:

Provided that if the Magistrate finds that a prima facie case is made out against the accused in respect of whom a finding of unsoundness of mind is arrived at, he shall postpone the proceeding for such period, as in the opinion of the psychiatrist or clinical psychologist, is required for the treatment of the accused, and order the accused to be dealt with as provided under Section 330.

(4) If such Magistrate is informed that the person referred to in sub-section (1-A) is a person with mental retardation, the Magistrate shall further determine whether the mental retardation renders the accused incapable of entering defence, and if the accused is found so incapable, the Magistrate shall order closure of the inquiry and deal with the accused in the manner provided under Section 330.".

Section 26. Amendment of Section 329

26. Amendment of Section 329.-In Section 329 of the principal Act,-

(a) after sub-section (1), the following sub-section shall be inserted, namely:-

"(1-A) If during trial, the Magistrate or Court of Sessions finds the accused to be of unsound mind, he or it shall refer such person to a psychiatrist or clinical psychologist for care and treatment, and the psychiatrist or clinical psychologist, as the case may be shall report to the Magistrate or Court whether the accused is suffering from unsoundness of mind:

Provided that if the accused is aggrieved by the information given by the psychiatric or clinical psychologist, as the case may be, to the Magistrate, he may prefer an appeal before the Medical Board which shall consist of-

(a) head of psychiatry unit in the nearest government hospital; and

(b) a faculty member in psychiatry in the nearest medical college.";

(b) for sub-section (2), the following sub-sections shall be substituted, namely:-

"(2) If such Magistrate or Court is informed that the person referred to in sub-section (1-A) is a person of unsound mind, the Magistrate or Court shall further determine whether unsoundness of mind renders the accused incapable of entering defence and if the accused is found so incapable, the Magistrate or Court shall record a finding to that effect and shall examine the record of evidence produced by the prosecution and after hearing the advocate of the accused but without questioning the accused, if the Magistrate or Court finds that no prima facie case is made out against the accused, he or it shall, instead of postponing the trial, discharge the accused and deal with him in the manner provided under Section 330:

Provided that if the Magistrate or Court finds that a prima facie case is made out against the accused in respect of whom a finding of unsoundness of mind is arrived at, he shall postpone the trial for such period, as in the opinion of the psychiatrist or clinical psychologist, is required for the treatment of the accused.

(3) If the Magistrate or Court finds that a prima facie case is made out against the accused and he is incapable of entering defence by reason of mental retardation, he or it shall not hold the trial and order the accused to be dealt with in accordance with Section 330.".

Section 27. Substitution of new section for Section 330

27. Substitution of new section for Section 330.-For Section 330 of the principal Act, the following section shall be substituted, namely:-

"330. Release of person of unsound mind pending investigation or trial.-(1) Whenever a person if found under Section 328 or Section 329 to be incapable of entering defence by reason of unsoundness of mind or mental retardation, the Magistrate or Court, as the case may be shall, whether the case is one in which bail may be taken or not, order release of such person on bail:

Provided that the accused is suffering from unsoundness of mind or mental retardation which does not mandate in-patient treatment and a friend or relative undertakes to obtain regular out-patient psychiatric treatment from the nearest medical facility and to prevent from doing injury to himself or to any other person.

(2) If the case is one in which, in the opinion of the Magistrate or Court, as the case may be, bail cannot be granted or if an appropriate undertaking is not given, he or it shall order the accused to be kept in such a place where regular psychiatric treatment can be provided, and shall report the action taken to the State Government:

Provided that no order for the detention of the accused in a lunatic asylum shall be made otherwise than in accordance with such rules as the State Government may have made under the Mental Health Act, 1987 (14 of 1987).

(3) Whenever a person is found under Section 328 or Section 329 to be incapable of entering defence by reason of unsoundness of mind or mental retardation, the Magistrate or Court, as the case may be, shall keeping in view the nature of the act committed and the extent of unsoundness of mind or mental retardation, further determine if the release of the accused can be ordered:

Provided that-

(a) if on the basis of medical opinion or opinion of a specialist, the Magistrate or Court, as the case may be, decide to order discharge of the accused, as provided under Section 328 or Section 329, such release may be ordered, if sufficient security is given that the accused shall be prevented from doing injury to himself or to any other person;

(b) if the Magistrate or Court, as the case may be, is of opinion that discharge of the accused cannot be ordered, the transfer of the accused to a residential facility for persons of unsound mind or mental retardation may be ordered wherein the accused may be provided care and appropriate education and training.".

Section 28. Insertion of new Section 357-A

28. Insertion of new Section 357-A.-After Section 357 of the principal Act, the following section shall be inserted, namely:-

"357-A. Victim compensation scheme.-(1) Every State Government in co-ordination with the Central Government shall prepare a scheme for providing funds for the purpose of compensation to the victim or his dependents who have suffered loss or injury as a result of the crime and who require rehabilitation.

(2) Whenever a recommendation is made by the Court for compensation, the District Legal Service Authority or the State Legal Service Authority, as the case may be, shall decide the quantum of compensation to be awarded under the scheme referred to in sub-section (1).

(3) If the trial Court, at the conclusion of the trial, is satisfied, that the compensation awarded under Section 357 is not adequate for such rehabilitation, or where the cases end in acquittal or discharge and the victim has to be rehabilitated, it may make recommendation for compensation.

(4) Where the offender is not traced or identified, but the victim is identified, and where no trial takes place, the victim or his dependents may make an application to the State or the District Legal Services Authority for award of compensation.

(5) On receipt of such recommendations or on the application under sub-section (4), the State or the District Legal Service Authority shall, after due enquiry award adequate compensation by completing the enquiry within two months.

(6) The State or the District Legal Services Authority, as the case may be, to alleviate the suffering of the victim, may order for immediate first-aid facility or medical benefits to be made available free of cost on the certificate of the police officer not below the rank of the officer in charge of the police station or a Magistrate of the area concerned, or any other interim relief as the appropriate authority deems fit.".

Section 29. Amendment of Section 372

29. Amendment of Section 372.-In Section 372 of the principal Act, the following proviso shall be inserted, namely:-

"Provided that the victim shall have a right to prefer an appeal against any order passed by the Court acquitting the accused or convicting for a lesser offence or imposing inadequate compensation, and such appeal shall lie to the Court to which an appeal ordinarily lies against the order of conviction of such Court.".

Section 30. Amendment of Section 416

30. Amendment of Section 416.-In Section 416 of the principal Act, the words "order the execution of the sentence to be postponed, and may, if it thinks fit" shall be omitted.

Section 31. Insertion of new Section 437-A

31. Insertion of new Section 437-A.-After Section 437 of the principal Act, the following section shall be inserted, namely:-

"437-A. Bail to require accused to appear before next appellate Court.-(1) Before conclusion of the trial and before disposal of the appeal, the Court trying the offence of the Appellate Court, as the case may be, shall require the accused to execute bail bonds with sureties, to appear before the higher Court as and when such Court issues notice in respect of any appeal or petition filed against the judgment of the respective Court and such bail bonds shall be in force for six months.

(2) If such accused fails to appear, the bond stand forfeited and the procedure under Section 446 shall apply.".

Section 32. Amendment of Form 45

32. Amendment of Form 45.-In the Second Schedule to the principal Act, in Form No. 45, after the figures "437", the figures and letter "437-A" shall be inserted.