Amendments mean a change any minor major addition or removal of any rules, numbers, figures, sections, or articles in any act is known as an amendment in criminal law we have the latest amendment in 2018.
Which was enacted on 11th August 2018 and came into force on the 21st day of April 2018
As the offences against women especially rape cases with women under the age of 12 and 16 years, for example Kathua rape case. We needed an amendment in the act which added strict provisions and punishments in the act, especially for minor girls.
“An act further to amend the Indian penal code 1860, Indian evidence act 1872, the Code of criminal procedure 1973 and Protection of Children from sexual offences act, 2012.”
Be it enacted by parliament in the 69th year of the Republic of India.
Introduction
Criminal law is the law which is made to punish the offenders ( culprits ) for the offences that they have committed. It provides rules regarding legal and illegal things which is allowed or which are not allowed. In general, regarding criminal law, we have two acts
- Indian penal code, 1860 and,
- code of criminal procedure, 1973
Indian penal code 1860 is a substantive law which only says which action is an offence and what should be the punishment for that crime. Code of criminal procedure, 1973 as the name suggests is a procedural law and it provides the procedure through which the offenders get published.
Again in support of these laws we have the Law of Evidence, without which there will be much delay in trial and harm to the general public and the litigants will have to face the obstructions and bear more costs.
The object of the law of evidence is to restrict the investigations made by the court within the limits of general convenience. If such restrictions are not, put no suit can be decided even if its trial takes place for a long time. The law of Evidence is for judicial behaviour like the reasoning for logic.
Again we will talk about the Protection of Children from Sexual Offences Act,2012
The amendment proposes to enhance punishment for the rape of a child, who is below the age of 18 years,
divided into three as:
- up to 12 years,
- up to 16 years,
- 16 to 18 years.
This bill has replaced the criminal law (amendment) ordinance.
Background
As an office against women especially rape cases with women under the age of 12 or 16 years, for example, the Kathua rape case. We needed amendments in the act which added provisions and punishments in the act is especially for minor girls.
Kathua rape case,2018:
The case relates to the brutal rape and murder of an 8-year girl in Kathua village back in 2018. In June 2019 special court at Pathankot sentenced three men to life imprisonment in this case.
The court has also sentenced three police officers to 5-year of imprisonment for causing distraction of evidence.
the supreme court has transferred the trial of the case from Kathua to Pathankot in Punjab given the obstruction of justice by the lawyers who have protested against the police arresting the accused person justice.
Justice J.B. Pardiwala held that the respondent accused was not a juvenile at the time of the commission of the offence and should be tried the way other accused persons were tried by the law.
The supreme court bench also ruled that the medical expert estimate regarding the age of the accused is not a statutory substitute for proof but is only an opinion.
Amendments under the Indian penal code 1860
1. Amendment under section 166A
(Added section376AB,376DA,376DB)
166A of the code deals with the duties of a public servant conducting an investigation.
There are three amendment acts in the section but the amendment act is made in clause c which says a public servant who fails to record any information given to him under subsection 1 of section 154 of the criminal procedure code about cognizable.
the offence is punishable under section
- Section 326A
- Section 326B
- Section 354B
- Section 370
- Section 370A
- Section 376
- Section 376A
- Section 376AB
- Section 376B
- Section 376C
- Section 376D
- Section 376DA
- Section 376DB
- Section 376E
- Section 509
2. Under section 228A
This section is inserted in the Indian penal code by criminal law amendment act,1983 to prevent social victimization and ostracism of victims of sex crimes. It prohibits the printing and publication of the Identity of victims of rape and other sexual crimes.
Subsection 1 of this section, section 376AB, section 376 DA, and section 376 DB were added with sections 376A, 376B, and section 376C.
3. An amendment under section 376
This section deals with offences of
- after amendment subsection 1 says whoever except in the cases provided for in sub–section 2 (which is rape committed by a police officer), commits rape shall be punished with rigorous imprisonment of either description for a term which shall not be less than 10 years but which may extend to imprisonment for life and shall also be liable to fine.(Imprisonment of10years to life imprisonment+ fine)
- Clause I of subsection 2 is omitted after the amendment which punishes, rape committed by a man on a woman when she is under 16 years of age
The amendment included subsection 3: whoever commits rape on a woman under 16 years of age shall be punished with, rigorous imprisonment for not less than 20 years which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person’s natural life, and shall also be liable to fine.
provided further that the fine imposed under the subsection shall be paid to the victim.
4. Insertion of new section 376 DA and section 376 DB
where a woman under 16 years of age is raped by one hour more persons constituting a group or acting in furtherance of a common intention, each of those persons will be deemed to have committed the offence of rape and shall be punished with imprisonment for life, which shall mean imprisonment for the remainder of that person’s natural life and with fine.
provided that such fights shall be just and reasonable to meet the medical expenses and rehabilitation of the victim.
provided further that any fine imposed under the sections shall be paid to the victim.
(376 DB punishment for gang rape on women under 12 years of age )
where a woman under 12 years of age is raped by one or more persons constituting a group or acting in furtherance of a common intention each of those persons shall be deemed to have committed the offence of rape and shall be punished with imprisonment for life which shall mean imprisonment for the remainder of that person’s natural life, and with fine or with death.
provided that such fines will be just reasonable to meet the medical expenses and rehabilitation of the victim.
- provided further that any person imposed under this section shall be paid to the victim.
5. Amendment of section 376E
( punishment for repeat offenders)
Section 376 AB, section 376 D, section 376 DA, and Section 376 DB were added with Section 376 D in the section 376 E which says: whoever has been previously convicted of an offence punishable under these sections and is subsequently convicted of an offence punishable under any of the said sections shall be punished with imprisonment for life which shall mean imprisonment for the remainder of that person’s natural life, or with death.
Amendments under the code of criminal procedure, 1973 :
Amendment of section 26:
The section talks about Courts by which Offences are tribal.
Section 376AB, section 376DA, and Section 376 DB are added with Sections 376A, section 376B, section 376C, section 376D, and Section 376E, in the proviso of Subsection A of Section 26 which are women-related offences and shall be tried as for as practicable by a court presided over by a woman.
Amendment of section 154:
(Information in cognizable cases)
In general, the section deals with the first information report.
After the amendment, section 376 AB section 376 DA section 376DB were added with sections 326A, Section 326B, section 354 Section,354 A, Section 354B section354C, Section 354 D, section 376, Section 376A, Section 376B, Section 376C, Section 376 D, Section 376E or section 509 of Indian Pinal Code to the proviso of subsection 1 of section 154 which says if the information is given by the women against whom an offence under this section is alleged to have been committed or attempted then such information shall be recorded by a woman police officer or any woman officer.
Amendment of section 161 :
Which talks about the examination of witnesses by police. The amendment added Section 376 AB section 376 DA section 376 DB with Section 376A section 376B section 376 C Section 376 D to the second provider of Subsection 3 which says that the statement of a woman against whom an offence under these sections is alleged to have been committed or attempted shall be recorded by a woman police officer or any woman officer.
Amendment of section 164:
( recording of confession and statements)
Amendment added Section 376 AB, section 376 DA, section 376 DB with Section 354, section 354A, section 354 AB, section 354C,section354 D, subsection 1 or Subsection 2 of Section 376, section 376A, 376B, section 376 C, Section 376 D, section 376E or section 509 of Indian penal code to the clause a of subsection 5 A of section 164 which says in cases punishable under these sections of Indian penal code, the judicial magistrate shall record the statement of a person against whom such offences have been committed in the manner prescribed in subsection 5 as soon as the commission of the offences brought to the notice of the police.
Amendment of section 173 :
(Report of a police officer on completion of an investigation)
amendment held under subsection 1A of section 173 which says that investigation about an offence under section 376 Section 376A 6 and 376 AB 6 and 376 B 6 and 376 C 6376 D section 376 DA 6 and 376 DB or Section 376E of the Indian Pinal Code shall be completed within two months( which was earlier three months) from the date on which information was recorded by the officer in charge of the police station.
A further amendment in clause of subsection 2 I of section 173 which adds section 376 AB, section, 376 DA, section 376 DB with sections 376, section 376A, section 376B, section 376C,section376D
Which says, as soon as the investigation is completed, the officer in charge of the police station shall forward to a magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the state government, stating whether the report of medical examination of the woman has been attached.
Amendment of section 197:
(Prosecution of judges and public servants)
The amendment added Section 376 AB section 376 DA section 376 DB with Sections 166A, section 166B, section 354, section 354A, section 354B,354 C, section 354D, section 370, section 375, section 376 or Section 509 of the Indian Penal Code which says for the removal of doubts it is hereby declared that no sanction shall be required in case of a public servant accused of any offence to have been committed under these sections.
Amendment of section 309:
(Power to postpone or adjourn proceedings) the amendment added Section 376 AB Section 376 DA section 376 DB with Section 376 A section 376 B Section 376 C Section 376 D of the Indian Pinal Code we say when the enquiry or trial relates to an offence under these sections of the Indian penal Code the enquiry or trial shall be completed within a period of two months from the date of filing of the charge sheet.
Amendment of section 327 :
(Court to be open)
The amendment adds Section 376 AB section 376DA section 376 DB with Section 376, section 376 A section 376 B, section 376 C, and Section 376 D to sub-section 2 of Section 327.
provided that the presiding judge may, if he thinks fit, or an application made by either of the parties, allow any particular person to have access to, or be or remain in, the room or building used by the court.
provided further that in-camera trial shall be conducted as for as practicable by a woman judge or magistrate.
Amendment of section 357B:
(Compensation to be in addition to find under section 326A or section 376D of the Indian Penal Code)
The amendment adds section 376 AB, section 376DB, and section 376 DA with section 326A and section 376 D of the Indian penal code in section 357b.
Amendment of section 357C:
(Treatment of victims )
The amendment added section 376 AB, section 376DA, section 376DB,with section 376A,section 376B,Section 376C Section 376 D,section 376E in the section which says :
All hospitals public are private whether run by the central government, state government, local bodies or any other person, shall immediately, provide first aid medical treatment, free of cost, to the victims of any offence covered under these sections of the Indian penal code and shall immediately inform the police of such incident.
Conclusion
On 21st April, the criminal law amendment ordinance act 2018 received presidential assent. this heralds a new era in the treatment of heinous crimes like rape in our country. Needless to say, a change had been sorely needed and was a long time coming.
Here are some important points about the new law against rape:
- Where earlier, the minimum punishment for committing rape had been 7 years, it has now been increased to 10 years. The maximum, however, remains fixed at a sentence of life imprisonment.
- Any person committing rape of a girl below 16 years of age (the age of consent in India) will now be subjected to punishment for a minimum term of 20 years.
- If the girl happens to be a child below 12 years of age, the minimum punishment changes to 20 years of rigorous imprisonment while the death penalty can also be levied in such instances.
- Gang rape of any girl below the age of 16 will attract a minimum punishment of life imprisonment.
- The fine imposed on the perpetrators of such crimes shall be reasonable enough to cover all medical and rehabilitation expenses of the victim. This fine shall be payable to the victim directly.
- In case of such acts being committed by a police officer, a minimum punishment of 10 years of rigorous imprisonment shall be awarded.
- All investigations about cases of rape shall now have to be completed within 3 months of the first report of information with the police or investigating agency.
- All appeals in rape cases must also be disposed of within 6 months.
- Where a person is accused of raping a girl aged below 16 years f of age, anticipatory bail cannot be granted to him.
- The presence of the informant, or a person duly authorised by him, has been mandated during the bail application hearing of the accused in the case of rape of a girl aged below 16 years.
Written By
Anjali yadav, 4th year B.A.LL.B.,
D.D.U. University, Gorakhpur Uttar Pradesh