Recent Changes in Criminal Law of India that Includes IPC, Evidence Act, POCSO Act
Recent Changes in Criminal Law of India that Includes IPC, Evidence Act, POCSO Act

Recent Changes in Criminal Law of India that Includes IPC, Evidence Act, POCSO Act {BEFORE & AFTER}

 

Over the years, the rate at which minors are being sexually molested and raped has been increasing. Only in 2016, about 39,068 cases of rape were recorded against girls of minor age. Even though girls have largely been at the risk of rape, in recent times, there have been growing reports of rape cases involving boys of minor age. It is also very common to find ladies of majority age being victims of rape.

 

To curb this menace, and punish persons engaged in the act of rape, the Indian Penal Code (IPC), 1860, incorporates the rape of women and minor children as one of the offences in the Code. In 2012, The Protection of Children from Sexual Offences (POSCO) Act, was enacted to specifically protect the interest of children (male and female) who are victims of rape.

 

1.0     Penal Sanctions Under the Indian Penal Code, and the POCSO Act

A combined reading of both legislations reveals that the following penal sanctions apply to rape offenders as follows:

  • Penal Sanctions for Offenders who Rape Girls
  • An offender who rapes a girl below 12 years i.e. 0 – 12 years, attracts a minimum of 10 years imprisonment or maximum of life imprisonment. In the case of gang rape, each offender attracts a minimum punishment of 20 years and maximum of life imprisonment.

 

  • An offender who rapes a girl between 12 – 16 years, attracts a minimum of 10 years imprisonment or maximum of life imprisonment. In the case of gang rape, each offender attracts a minimum punishment of 20 years and maximum of life imprisonment.

 

  • An offender who rapes a girl who is 16 years and above, attracts a minimum of 7 years imprisonment or a maximum of life imprisonment.

 

  • Penal Sanctions for Offenders who Rape Boys
  • An offender who rapes a male child below 12 years attracts a punishment of 10 years or life imprisonment, whichever is suitable.

 

  • An offender who rapes a male child between 12 – 16 years attracts a punishment of 7 years or life imprisonment, whichever is suitable.

 

  • An offender who rapes a male child between 16 – 18 years attracts a punishment of 7 years to life imprisonment, whichever is suitable.

 

But despite the penal sanctions stated above, reports of rape cases have still been on the increase. Also, the investigations of rape cases and trials of rape suspects, have usually been slow.

 

In order to put in place more stringent measures that will be more effective in deterring the commission of rape, and to enhance speedy conduct of investigation and trial of rape cases, the Union Cabinet, chaired by Prime Minister Narendra Modi, approved the promulgation of the Criminal Law (Amendment) Ordinance, 2018. This decision was further spiked by the recent rape and murder case involving girls within the Jammu and Kashmir’s Kathua and Gujarat’s Surat district.

 

2.0     Key Effects of the Criminal Law (Amendment) Ordinance, 2018

Due to the new amendments introduced by the Ordinance, the major effects of the amendment on the existing legislations are as follows:

  • Death penalty has now been introduced as one of the punishments for rape.
  • The minimum penalty for rape of girls has now been increased, as opposed to what was previously obtained under the key legislations.
  • Bail terms have been regulated.
  • Investigation, trial, and appeal time frames have been abridged.
  • New administrative measures have been introduced.

 

 

3.0     Amendments Incorporated by the Criminal Law (Amendment) Ordinance, 2018

  1. New Penal Sanctions for Offenders

Under the Ordinance, the new punishments for rape are as follows:

  • Raping a girl who is below 12 years attracts a minimum punishment of 20 years imprisonment, or life imprisonment, or death penalty, whichever the court deems fit in the circumstance.

If it involves a gang rape, each offender will be punished with life imprisonment or death sentence, which ever the court deems suitable.

 

  • Raping a girl who is 12 years but below 16 years (i.e. 12 – 16 years) attracts a minimum punishment of 20 years, or life imprisonment. If it involves gang rape, each offender will be punished with life imprisonment.

 

  • Raping a girl who is above 16 years, including a lady who has attained majority age, attracts a minimum punishment of 10 years imprisonment, or life imprisonment, which ever the court deems suitable.

 

Difference Between Punishments under the Ordinance and the IPC/POSCO Act

Obviously, the punishments introduced by the Ordinance are more stringent, especially with the introduction of death penalty for persons who rape or gang rape a female child below the age of 12 years.

 

Under the IPC & POSCO Act, the minimum punishments were as follows:

0 – 12 years –         10 years imprisonment or 20 years imprisonment for gang rape

12 – 16 years-        10 years imprisonment or 20 years imprisonment for gang rape

16 & above-           7 years imprisonment

Now, under the Ordinance, the minimum punishments are as follows:

0 – 12 years –         20 years imprisonment OR life imprisonment for gang rape

12 – 16 years-        20 years imprisonment OR life imprisonment for gang rape

16 & above –          10 years imprisonment

And as earlier observed, the minimum punishments introduced by the Ordinance are the current punishments for rape offenders. The previous punishments under the IPC & POSCO Act, have now been changed by virtue of this amendment.

 

  1. New Time Limitation for Investigation and Trial of Cases

Before the passing of the Ordinance, the Code of Criminal Procedure, 1973 fixed a period of three months as the time frame for conducting investigations into rape cases involving children.

 

Also, prior to 2018 when the Ordinance came into existence, rape offenders could access anticipatory bail.

 

Now, under the Ordinance, the previous three months investigation time period has been changed. Furthermore, the Ordinance sets new terms regulating bail and periods for appeal. The new stipulations are as follows:

  • The time period for conducting investigations into rape cases has been stipulated to be ‘two months’ for all rape cases.

 

  • Anticipatory bail in cases involving the rape of girls below 16 years has now been barred. For other bail applications, the Ordinance requires that the court is to give 15 days’ notice to the Public Prosecutor, and the victim’s representative, before making any decision on bail application.

 

 

  • All rape cases have to be tried and completed within a period of two months

 

  • All appeals against rape sentences must be disposed of within six months.

 

These new time frames are geared towards enabling fast track procedure in handling of rape cases.

 

  1. Provisions to Enable Fast Track Investigations and Trials in Rape Cases

The Ordinance incorporate certain provisions which are geared towards achieving fast track investigation and trials of rape cases. The provisions require the following:

  • Setting up forensic labs exclusively for rape cases
  • Provision of forensic kits in all Police Stations and hospitals, specifically for rape cases.
  • Provision of extra and dedicated manpower for faster investigation of rape cases.
  • Establishment of new Fast Track Courts
  • Creation of new posts of public prosecutors and related infrastructures.

The provision and enforcement of these requirements will help in achieving speedy investigation and trials of rape cases, within the set time frames.

 

Furthermore, the Ordinance has incorporated a new requirement that the profile of sexual offenders should be maintained in the National Crime Records Bureau. This data will help the law enforcement agencies in monitoring, tracking, investigating, and verifying antecedents.

 

4.0     Short Comings of the Ordinance

The Ordinance has succeeded in amending the penal provisions of the IPC and POSCO Act, by introducing new minimum punishments for rape involving females, and maximum punishment of death penalty for rape of girls below the age of 12 years.

 

However, these amendments do not apply in rape cases involving minor boys. This is because the Ordinance is silent on this issue, and has only limited the increase of penal sanctions involving minor girls.

 

It therefore means that despite the increase in rape cases involving minor boys, the previous penal sanctions still remain. In essence, while offenders who rape female victims get to be more severely punishment under the Ordinance, the offenders of male minors are sanctioned with the same punishments contained in the Indian Penal Code.

 

5.0     Desirability of Death Penalty as Punishment for Rape

There are differing views on the capital punishment now introduced for rape cases involving female children below the age of 12 years. Some views approve the introduction of the death penalty, other views are narrower, and disapprove this punishment for rape on the basis that some offenders can undergo rehabilitation.

 

Though it may seem proper to put an end to the life of a person who finds pleasure in raping female children between 0 – 12 years, and  though this punishment will ask as a measure which prevents an increase in this nature of rape cases, the question still remains – “Should every offender, who falls within this category, be sanctioned to death?” This question is essential, especially in cases where there’s a possibility that the offender could undergo rehabilitation.

 

The Justice Verma Committee (2013) deliberated on the suitability of awarding death penalty, and decided against this measure. However, due to rape cases involving brutality which lead to the death of the rape victims or grievous health issues, Parliament deemed it necessary to pass the Criminal Law (Amendment) Act, 2013 to amend the Indian Penal Code and incorporate death penalty as punishment in the following cases:

  • Rape cases involving brutality which leads to death of the victim, or which leaves the victim in a vegetative state.

 

  • Cases of repeat offenders.

Because the Ordinance makes death penalty one of the maximum punishments, it means that the Court can exercise its discretion to award life imprisonment, rather than sanctioning an offender to death. The courts are likely to award death sentences for rape only in very extreme cases.

 

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