Abstracted from a series of tweets by Mr. Chugh, accessible here

1. The new provision on Police Custody is deeply problematic. While it is clear that Police Custody (now) need not be confined to the first 15 days, but what’s unclear is the question as to whether Police Custody can be longer than 15 days in the whole (60 or 90), and this is most disconcerting. The gap in the existing law i.e ‘what if the accused is arrested and goes and remains in the hospital for the first 15 days, then how do you seek PC?’ could have been addressed by adding a simple exception to the section. The solution wasn’t in making PC open-ended and possible for the entirety of the period in which a person is in custody. This would have grave implications for personal liberty and would bail even more difficult.

2. Evidence Act has seen less than 1% substantive change. A big missed opportunity is : No clarity on the admissibility of illegally obtained evidence. Currently, there is a divergence of opinion on this. Earlier judgments hold that illegally obtained evidence is also admissible while some of the new ones hold such evidence to be inadmissible on the ground of violation of right to privacy. This ought to have been clarified. Currently, there’s no incentive on the investigators to collect better evidence because there are no real consequences for collecting bad evidence. The law has traditionally looked the other way, and prioritised ends over means.

3. No guidelines on seizure of digital evidence and the vexed issues of : whether police can compel a person to disclose phone/laptop password/passcode.

4. The list of compoundable offences should have been enlarged. Much of the High Courts’ time (across the country) is wasted in deciding petitions for quashing of cases (482 CrPC) based on compromise and amicable settlement. This doesn’t require any meaningful judicial adjudication. All of this time can be better utilised for laying down the law by the higher courts especially when there are still so many vexed issues of criminal law that need resolution and adjudication by constitutional courts.

5. Fixing time-limits for various aspects of criminal procedure is hardly the solution. Time-limits in the law have existed for quite some time and, experience has shown, they have been observed more in their breach than in compliance. In fact, the solution lies in : * police reforms (having better investigators – who are insulated from pressure, and not burdened with law and order responsibilities); * more judges and prosecutors (with independence between prosecutorial and police functions), and finally – better infrastructure. Fixing a time-limit in a top-down manner doesn’t serve the purpose and is not likely to lead to any real change.

6. Should have defined, once and for all, who a Police Officer really is; not just for the purposes of IPC but also the special laws. This is important because, while a statement/confession to a police officer is inadmissible, confession to other officers is not. And it’s the latter that is open to misuse.

7. Many offences in the new laws are also offences under other special laws; it should be clarified as to when does a particular law apply and why. Discretion in this regard to investigators is open to misuse and selective and arbitrary application of laws.

8. Provisions relating to 65-B (Electronic Records) have not been simplified at all. The law in a lot of ways is still convoluted and while the country where we took this provision from – has done away with it, we still have the monster that 65-B has become. Much of the world has moved away and made more pragmatic rules on proof of electronic evidence but apart from putting a bunch of these sections together, no real change seems to have been effected.

9. Shockingly, the new CrPC does not mention or recognise the concept of Metropolitan Magistrates, while such judges are functioning in Delhi, for instance. This may lead to unnecessary and totally avoidable procedural disputes.

10. Denial of bail even when the accused has undergone half of the maximum sentence as an under-trial on the ground of some other involvement seems unfair and excessive. While denial of bail in cases of previous conviction is still understandable, denying bail merely on account of previous involvement appears unjust, especially in light of the presumption of innocence, and possibility of false implication with a view to deny people bail.

11. Wide powers of attachment/forfeiture of property within new CrPC, without adequate safeguards and guard-rails.

12. The principle of ‘In-absentia trials’ raises more questions than it answers and may have serious due process concerns.

13. Even the initiation of investigation against public servants would become more difficult, as, in some cases, a complaint from a senior officer of the public servant concerned has been made a condition precedent to a magistrate directing investigation. (Shockingly no such fetters on police to register an FIR against a public servant).

14. Opportunity to a prospective accused before a court takes cognisance (in a complaint case) seems to be irrational. This provision of a hearing to a prospective accused (even before cognisance, let alone issuance of summons) is alien to criminal law and would greatly contribute to delays in criminal proceedings.

15. Provision which permits successor officers of public servants to give evidence in cases may not be in-line principles of law of evidence where only the person who has personal knowledge can depose on facts and only and only if such an officer cannot be produced that a personal appearance is dispensed-with. This rule would amount to letting-in inadmissible and inferior evidence while best evidence could be procured.

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Author wishes to acknowledge the contribution of young law student Mr. Daksh Gupta who assisted the Author in the above.