New developments in criminal laws, Nirbhaya Act

New developments in criminal laws

The Criminal Law (Amendment) Bill 2018

The Lok Sabha has passed the Criminal Law (Amendment) Bill 2018 that proposes to enhance punishment for rape of a child. The Bill provides for death penalty as the maximum punishment in cases of rape of a child under 12. The Bill seeks to replace the Criminal Law (Amendment) Ordinance promulgated on April 21 following an outcry over the rape and murder of a minor girl in Kathua in Jammu and Kashmir and the rape of another woman at Unnao in Uttar Pradesh.

The Criminal Law (Amendment) Bill 2018 enhances the minimum sentence for offence of rape against girl children of all three age categories. Under new law, if the victim is under 12 years of age, the culprit faces minimum sentence of 20 years, up from 10 years previously.

The maximum punishment is death penalty. In the cases of gangrape of child under 12, the minimum punishment is life sentence (earlier 20 years) while the maximum is death penalty.

In cases of child aged between 12 and 16, the offence of rape is punishable with the minimum sentence of 20 years, up from 10 years. Maximum punishment in such cases is life imprisonment. If a girl aged between 12 and 16 is gangraped, the convict faces minimum punishment of life sentence.

If the victim is aged between 16 and 18, the offence of rape is punishable with minimum punishment of 10-year jail term and maximum is life imprisonment.  Repeat offenders will be punished with life imprisonment or death.

The Bill provides for time-bound investigation in cases of rape of girl children. The investigation into rape of a child must be completed within two months.  The case is to be tried in a fast track court. The Bill states that any appeal against a sentence by the trial court must be disposed of within six months.  Accused is not entitled to anticipatory bail, under new law, in offences of rape of child less than 16 years of age.

 

Section 498A Of IPC

The Hon’ble Supreme Court of India in its recent judgment of Social Action Forum for Manav Adhikar and Another v Union of India Ministry of Law and Justice and Others1 revisited the important issue relating to Section 498-A of the Indian Penal Code, 1860 (hereinafter referred to as “the IPC”). Section 498-A was brought into the IPC in the year 1983 to curb the menace of cruelty to married women, which often led to dowry deaths.

In order to protect helpless women who were regularly getting abused and beaten and tortured by their respective husbands and husband’s family members, multiple changes were made to IPC. Accordingly, under Section 498A cruelty to a woman by her husband or any relative of her husband was made punishable for with an imprisonment for a term of three years and also with fine. This was further supported by Section 304B where a woman had committed suicide within 7 years of her marriage or died in circumstances raising a reasonable suspicion that some other person has committed an offence, provisions were being made for inquest by Executive Magistrates. Further, the Indian Evidence Act, 1872 was also amended to provide that in cases where the woman had committed suicide within 7 years of marriage and it is shown that her husband or any other relative of her husband had subjected her to cruelty, then the Court may presume that such suicide was abetted by her husband or such relative of the husband.

However, since the Section was subject matter of controversy, the Hon’ble Supreme Court observed that it was often being “used as weapons rather than shield by disgruntled wives.” Because of this, various judgments over time have also read down the Section.

In Social Action Forum for Manav Adhikar and Another, the judgment of Rajesh Sharma and others v. State of U.P. and another passed by the Hon’ble Supreme Court came in question. In the Rajesh Sharma judgment, the Hon’ble Supreme Court, in order to prevent misuse of S. 498-A, gave a number of directions such as:

  • One or more Family Welfare Committees were to be constituted by the District Legal Services Authorities in every district. Every complaint under Section 498A received by the police or the Magistrate would then be referred to and looked into by such Committee which would within one month give its report to such committee. Till the report was received, no arrest would be normally effected.
  • The complaints under Section 498A and other connected offences may be investigated only by a designated Investigating Officer of the area.
  • Further, in cases where a settlement is reached, the District and Sessions Judge or any other senior Judicial Officer nominated by him could dispose of the proceedings and close the criminal case if dispute primarily related to matrimonial discord.
  • If a bail application was filed with at least one clear day’s notice to the Public Prosecutor/ complainant, the same may be decided as far as possible on the same day. Recovery of disputed dowry items may not by itself be a ground for denial of bail if maintenance or other rights of wife/minor children can otherwise be protected.

In Social Action Forum for Manav Adhikar and Another,the Hon’ble Supreme Court examined whether the Court in Rajesh Sharma could, by the method of interpretation, have issued above such directions. With due deliberations, the Hon’ble Supreme Court was pleased to modify the directions issued in Rajesh Sharma case.

With respect to the constitution of Family Welfare Committee, the Hon’ble Supreme Court has ruled that constitution of the Family Welfare Committees by the District Legal Services Authorities and the prescription of duties of the Committees and further action thereof are beyond the IPC and the same does not really flow from any provision of the IPC and have nothing to do with the IPC. Accordingly, the same was impermissible.

Further, with respect to the direction regarding disposal of the case by District and Sessions Judge or any other senior Judicial Officer nominated by him in cases where settlement was reached, the Court observed that the same was not a correct expression of law and in a criminal case which was not compoundable, only the concerned High Court has the power to quash proceedings under S. 498-A. Thus the same could not be done by District or the Sessions judge and it was open to the parties to approach the High Court.

The Honble Supreme Court did not interfere with respect to the directions pertaining to Red Corner Notice, clubbing of cases and postulating that recovery of disputed dowry items may not by itself be a ground for denial of bail.  With respect to the directions regarding clubbing of “appearance of all family members and outstation members by video conferencing”, the Court directed that an application could be filed either under Section 205 or Section 317 of Criminal Procedure Code depending upon the stage at which the exemption is sought.  The Hon’ble Supreme Court therefore, found that some of the directions given in the Rajesh Sharma case had potentially entered into the legislative field. Keeping this in mind, the Hon’ble Supreme Court undertook a re-examination of the directions and only retained the ones that find their bedrock within the Indian Penal Code – and in doing so – propounded a more balanced approach towards the application of section 498A.

Nirbhaya Act

The Criminal Law (Amendment) Bill, 2013 popularly was enacted, following the brutal rape and murder of a 23-year-old Delhi student on December 16, 2012. Her identity was kept secret and she came to be called Nirbhaya for whose justice, the nation witnessed an unprecedented uproar, paving for the tabling of the new anti-rape law, which is called the Nirbhaya Act.

The Act which came into force on April 3, 2013, has stringent punishments to deal with sex crimes against women. The new law expanded the definition of rape including forced penetration, oral, vaginal or anal, with any foreign object. This new Act has expressly recognised certain acts as offences which were dealt under related laws.

Stalking and voyeurism are liable to be punished with seven years of imprisonment. It recognised certain acts as offences which were hitherto dealt separately under IPC. These are acid attack (Sec 326A), attempt to acid attack (Sec 326B), sexual harassment (Sec 354A), act with intention to disrobe a woman (Sec 354B), voyeurism (Sec 354C), and stalking (Sec 354D).

According to governancenow.com, following the enactment of the law in 2013, a number of complaints of sexual harassments poured in. Under the new laws, police and other public servants can be booked if they fail to take action following complaints from women.

This amendment was introduced as many victims protested that police would not act on their complaints if the assaulter was an influential person. The new offences also include hospitals refusing to treat sexual assault victims, a person in authority sexually abusing a woman, unwanted sexual advances, sexually coloured remarks, acid attack and attempt at acid attack.

The law prescribes life imprisonment as the maximum sentences for rape. But, the law calls for death penalty for repeat offenders and those whose victims are left in a “vegetative state.” Even insulting modesty of a women, by uttering any word or gesture shall be punished with jail up to three years.

The government is at present said to be drafting a bill to award death sentence for the rape of a minor below the age of 12 years. It wants to amend the Protection of Children Against Sexual Offences (POCSO) Act for the purpose.

 

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