Introduction:

Changes are made in IPC, Cr.P.C and Indian Evidence Act. The changes are made by the President of India by way of Ordinance in exercise of his powers under A.123 (1) of Constitution.

AMENDMENTS TO THE INDIAN PENAL CODE:

1. In S.100, the term Grievous hurt is added.
2. Another S.166A is added. As per this section if any person authorized to investigate refuses to register FIR and fails to obey any direction given by law for the purpose of investigation of any offence or any other matter especially for offences like S.354, 354A, 354B, 354C, 354D (2), 376, 376A, 376B, 376C, 376D, 376E, shall be punished with imprisonment for a term which may extend to one year or with fine or with both.
3. A new section called 326A and 326B are added.

S.326A: Voluntarily causing grievous hurt by use of acid, etc: Not less than ten years but which may extend to imprisonment for life and with fine which may extend to ten lakh rupees. The fine shall be given to victim.

S.326B: Voluntarily throwing or attempting to throw acid: with imprisonment of either description for a term which shall not be less than five years but which may extend to seven years, and shall also be liable to fine. The fine shall be given to victim.

4. The Punishment for S.354 is enhanced to imprisonment of either description for a term of one year which may extend to five years and shall also be liable to fine.

5. The new sections called S.354A, 354B, 354C and 354D are inserted. New offenses are introduced like Sexual Harassment, Assault or use of criminal force to woman with intent to disrobe, Voyeurism, Stalking.

6. S.354A defines Sexual Harassment (SH): The following any of the act is said to be SH:

(i) Physical contact and advances involving unwelcome and explicit sexual overtures; or

(ii) A demand or request for sexual favours; or   (iii) making sexually coloured remarks; or

(iv) Forcibly showing pornography; or (v) any other unwelcome physical, verbal or non-verbal conduct of sexual nature.

(2) The Punishment for offences specified in clause (i) or clause (ii) of sub-section (1) shall be punished with RIwhich may extend to five years, or with fine, or with both.

(3) The punishment for offences specified in clause (iii) or clause (iv) or clause (v) of sub-section (1) shall be punishable with imprisonment of either description that may extend to one year, or with fine, or with both.

7. Assault or use of criminal force to woman with intent to disrobe

354B. Assaulting or using criminal force on women with an intention to disrobing or compelling her in any naked place shall be punished with imprisonment of either description for a term which shall not be less than three years but which may extend to seven years and with fine.

8. Voyeurism: 354C. Watching or capturing the image of women who is engaging in any private act where she would usually have the expectation of not being observed either by the perpetrator or by any other person at the behest of the perpetrator.

The punishment for 1^st conviction shall not be less than one year, but which may extend to three years, and shall also be liable to fine.

The Punishment for 2^nd conviction or subsequent conviction is with imprisonment of either description for a term which shall not be less than three years, but which may extend to seven years, and shall also be liable to fine.

9. Stalking: 354D. (1) Whoever follows a person and contacts, or attempts to contact such person to foster personal interaction repeatedly, despite a clear indication of disinterest by such person, or whoever monitors the use by a person of the internet, email or any other form of electronic communication, or watches or spies on a person in a manner that results in a fear of violence or serious alarm or distress in the mind of such person, or interferes with the mental peace of such person, commits the offence of stalking. However the following are exceptions:

(i) that it was pursued for the purpose of preventing or detecting crime and the person accused of stalking had been entrusted with the responsibility of prevention and detection of crime by the state; or

(ii) that it was pursued under any law or to comply with any condition or requirement imposed by any person under any law; or

(iii) that in the particular circumstances the pursuit of the course of conduct was reasonable.

Punishment: Imprisonment of either description for a term which shall not be less than one year but which may extend to three years, and shall also be liable to fine.’.

10. S.370 IPC is replaced with S.370 and S.370A IPC.

S.370 defines Trafficking.

S.370 Says for the purpose of exploitation if any person (a) recruits, (b) transports, (c) harbours, (d) transfers, or (e) receives, a person or persons, by––

First.–– using threats, or

Secondly.–– using force, or any other form of coercion, or

Thirdly.–– by abduction, or

Fourthly.–– by practising fraud, or deception, or

Fifthly.–– by abuse of power, or

Sixthly.–– by inducement, including the giving or receiving of payments or benefits, in order to achieve the consent of any person having control over the person recruited, transported, harboured, transferred or received, commits the offence of trafficking.

Explanation 1.–– The expression “exploitation” shall include, prostitution or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude, or the forced removal of organs.

Explanation 2.–– The consent of the victim is immaterial in a determination of the offence of trafficking.

Punishment: RI for a term which shall not be less than seven years, but which may extend to ten years, and shall also be liable to fine. IF more than one person is involved it shall be punishable with RI for a term which shall not be less than ten years but which may extend to imprisonment for life, and shall also be liable to fine.

IF the offence involves the trafficking of a minor, it shall be punishable with RI for a term which shall not be less than ten years but which may extend to imprisonment for life.

IF the offence involves the trafficking of more than one minor at the same time, it shall be punishable with RI for a term which shall not be less than fourteen years but which may extend to imprisonment for life.

IF a public servant including police officer is involved in the trafficking of a minor then such public servant shall be punished with imprisonment for life, which shall mean the remainder of that person’s natural life.

If a person is convicted of the offence of trafficking of minors, on more than one occasion, then such person shall be punished with imprisonment for life, which shall mean imprisonment for the remainder of that person’s natural life.

11. Employing of a trafficked person.

370A. (1) IF any person despite knowing that a child has been trafficked, employs such child in any form of labour, shall be punished with RI for a term which shall not be less than five years but which may extend to seven years, and with fine.

(2) IF a person despite knowing that an adult has been trafficked, employs such adult for labour, shall be punished with RI for a term which shall not be less than three years but which may extend to five years, and shall also be liable to fine.’.

12. S. 375, 376, 376A, 376B, 376C & 376D IPC are replaced with S.375, 376, 376A, 376B, 376C and 376D. S.375 defines Rape t:

‘375. A person is said to commit “Rape” if that person––

(a) Penetrates his penis, to any extent, into the vagina, mouth, urethra or  anus of another  person or makes the person to do so with him or any other  person; or

(b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of another person or makes the person to do so with him or any other person; or

(c)  manipulates any part of the body of another person so as to cause penetration into the vagina, urethra, anus or any part of body of such  person  or makes the person to do so with him or any other person; or

(d)  applies his mouth to the penis, vagina, anus, urethra of another person or makes such person to do so with him or any other person;

(e) touches the vagina, penis, anus or breast of the person or makes the person touch the vagina, penis, anus or breast of that person or any other person, except where such penetration or touching is carried out for proper hygienic or medical purposes under the circumstances falling under any of the following seven descriptions:––

First:- Against the other person’s will.

Secondly:-  Without the other person’s consent.

Thirdly:- With the other person’s consent when such consent has been obtained by putting such other person or any person in whom such other person is interested, in fear of death or of hurt.

Fourthly:- When the person assaulted is a female, with her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes to be lawfully married.

Fifthly:- With the consent of the other person when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by that person personally or through another of any stupefying or unwholesome substance, the other person is unable to understand the nature and consequences of that action to which such other person gives consent.

Sixthly:-With or without the other person’s consent, when such other person is under eighteen years of age.

Seventhly. –– When the person is unable to communicate consent.

Explanation 1.–– Penetration to any extent is “penetration” for the purposes of this section.

Explanation 2.–– For the purposes of this section, “vagina” shall also include labia majora.

Explanation 3.–– Consent means an unequivocal voluntary agreement when the person by words, gestures or any form of non-verbal communication, communicates willingness to participate in the specific act:

Provided that, a person who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity.

Exception.–– Sexual intercourse or sexual acts by a man with his own wife, the wife not being under sixteen years of age, is not Rape.

Punishment for Rape.

13. 376. (1) Whoever, except in the cases provided for by sub-section (2), commits Rape, shall be punished with RI of either description for a term which shall not be less than seven years but which may extend to imprisonment for life, and shall also be liable to fine.

(2) Whoever,––

(a) being a police officer, commits Rape –

(i) within the limits of the police station to which such police officer is appointed; or

(ii) in the premises of any station house; or

(iii) on a person in such police officer’s custody or in the custody of a police officer subordinate to such police officer; or

(b) being a public servant, commits Rape on a person in such public servant’s custody or in the custody of a public servant subordinate to such public servant; or

(c) being a member of the armed forces is in the area by virtue of deployment by the Central or a State Government, commits Rape; or

(d) being on the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force or of a women’s or children’s institution, commits Rape on any inmate of such jail, remand home, place or institution; or

(e) being on the management or on the staff of a hospital, commits Rape on a person in that hospital; or

(f) being a relative, guardian or teacher of, or a person in a position of trust or authority towards, the person assaulted, commits Rape on such person; or

(g) commits Rape on a woman knowing her to be pregnant; or

(h) commits Rape on a person when such person is under eighteen years of age; or

(i) commits Rape, where the person assaulted is incapable of giving consent; or

(j) being in a position of economic or social dominance, commits Rape on a person under such dominance; or

(k) commits Rape on a person suffering from mental or physical disability; or

(l) while committing Rape causes grievous bodily harm or maims or disfigures or endangers the life of a person; or

(m) commits persistent Rape,

shall be punished with RI for a term which shall not be less than ten years but which may extend to imprisonment for life, and shall also be liable to fine.

Explanation 1.–– For the purposes of this sub-section,––

(a) “women’s or children’s institution” means an institution, whether called an orphanage or a home for neglected women or children or a widow’s home or an institution called by any other name, which is established and maintained for the reception and care of women or children;

(b) “hospital” means the precincts of the hospital and includes the precincts of any institution for the reception and treatment of persons during convalescence or of persons requiring medical attention or rehabilitation;

(c) “police officer” shall have the same meaning as assigned to the expression “police” under the Police Act, 1861;

(d) “armed forces” means the naval, military and air forces and includes any member of the Armed Forces.

Explanation 2.–– Where a person is subjected to Rape by one or more persons in a group of persons acting in furtherance of their common intention, each of the persons in the group shall be deemed to have committed Rape within the meaning of this sub-section.

14.Punishment for causing death or resulting in persistent vegetative state of the victim.

376A. Whoever, commits an offence punishable under sub-section (1) or sub-section (2) of section 376 and in the course of such commission inflicts an injury which causes the death of the person or causes the person to be in a persistent vegetative state, shall be punished with RI for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean the remainder of that person’s natural life, or with death.

15. Rape by husband upon his wife during separation.

376B. IF husband commits Rape on his own wife, who is living separately under a decree of separation or under any custom or usage, without her consent, shall be punished with imprisonment of either description, for a term which shall not be less than two years but which may extend to seven years, and shall also be liable to fine.

16. Sexual intercourse by a person in authority

376C. Whoever,––

(a) being in a position of authority or in a fiduciary relationship; or

(b) a public servant; or

(c) superintendent or manager of a jail, remand home or other place of custody established by or under any law for the time being in force, or a women’s or children’s institution; or

(d) being on the management of a hospital or being on the staff of a hospital,

and abuses such position or fiduciary relationship to induce or seduce any person either in the first mentioned person’s custody or under the first mentioned person’s charge or present in the premises and has sexual intercourse with that person, such sexual intercourse not amounting to the offence of Rape, shall be punished with RIof either description for a term which shall not be less than five years but which may extend to ten years, and shall also be liable to fine.

Explanation 1: – In this section, “sexual intercourse” shall mean any of the acts mentioned in clauses (a) to (c) of section 375.

Explanation 2: – For the purposes of this section, Explanations 1 & 2 to S.375 also applicable.

Explanation 3.–– “Superintendent”, in relation to a jail, remand home or other place of custody or a women’s or children’s institution, includes a person holding any other office in such jail, remand home, place or institution by virtue of which such person can exercise any authority or control over its inmates.

Explanation 4.–– The expressions “hospital” and “women’s or children’s institution” shall respectively have the same meaning as in Explanation 1 to sub-section (2) of section 376.

17. Rape by gang:376D. Where a person is sexually assaulted 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, regardless of gender and shall be punished with RI for a term which shall not be less than twenty years, but which may extend to life and shall pay compensation to the victim which shall be reasonable to meet the medical expenses and rehabilitation of the victim.

Explanation.–– For the purposes of this section, imprisonment for life shall mean imprisonment for the remainder of that person’s natural life.

18.Punishment for repeat offenders:S.376E says for every subsequent offence: 376E. Whoever has been previously convicted of an offence punishable u/S.376 or section 376A or section 376C or section 376D and is subsequently convicted of an offence punishable under any of the said sections shall be punished with imprisonment for life, which shall mean the remainder of that person’s natural life or with death.’

19. The punishment for S.509 IPC is enhanced to simple imprisonment for a term which may extend to three years and shall also be liable to fine.

AMENDMENTS TO THE CODE OF CRIMINAL PROCEDURE, 1973

1For S.54A, the following proviso is inserted. It says: ––  If the person identifying the arrested person is mentally or physically disabled, such process of identification shall take place under the supervision of a Judicial Magistrate. He shall take appropriate steps to ensure that such person identifies the person arrested using methods that the person is comfortable with. This whole identification process may be videographed.

2. 1For S.154, the following provisos must be inserted. It says: ––

IF the information is by the woman against whom an offence u/s.326A, 326B, 354, 375, 376, 376A, 376B, 376C, 376D, 376E, 509 of the Indian Penal Code is alleged to have been committed or attempted, then such information shall be recorded by a woman police officer. Further, such woman shall be provided legal assistance and also the assistance of a healthcare worker or women’s organisation or both:

Provided further that––  IF such above said offense are committed against mentally or physically disabled person, then such information shall be recorded by a police officer, at the residence of the person seeking to report such offence or at a convenient place of such person’s choice, in the presence of a special educator or an interpreter. This process must be videographed.  It is also the duty of the police officer to get the statement of the person recorded by a Judicial Magistrate under clause (a) of sub-section (5A) of section 164 as soon as possible.

4. Changes to S.160 Cr.P.C: The Statements of persons who are under the age of eighteen years or above the age of sixty-five years or a woman or a physically or mentally disabled person shall be recorded at the place of residence.

5. Changes to S.161: The statements of victim for the following offences shall be recorded by woman police officer: u/s.326A, 326B, 354, 375, 376, 376A, 376B, 376C, 376D, 376E, 509 of the Indian Penal Code.

6. Changes to S.164: For the above offenses the Judicial Magistrate shall record the statement of the person against whom such offence has been committed in the manner prescribed in sub-section (5), as soon as the commission of the offence is brought to the notice of the police. If such person is physically or mentally disabled, the Magistrate shall take the assistance of an interpreter or a special educator in recording the statement. The same shall be recorded with the assistance of an interpreter or special educator, may be videographed.

The statement recorded of physically or mentally disabled shall be considered a statement in lieu of examination-in-chief, as specified in section 137 of the Indian Evidence Act, 1872 such that the maker of the statement can be cross-examined on such statement, without the need for recording the same at the time of trial.

7. Insertion of new section 198B: In case of offence under S.376B IPC, where the persons are in a marital relationship, except upon prima facie satisfaction of the facts which constitute the offence upon a complaint having been filed or made by the wife against the accused husband.
8. Provisio is added to S. 273: IF the victim who is giving evidence is less than 18 years is alleged to have been subjected to Rape or any other sexual offence, is to be recorded, the court may take appropriate measures to ensure that such person is not confronted by the accused while at the same time ensuring the right of cross-examination of the accused.
9. Amendment of section 327: In section 327 of the Code of Criminal Procedure, in sub-section (2), for the words, figures and letters “trial of rape or an offence under section 376, section 376A, section 376B, section 376C or section 376D of the Indian Penal Code”, the words, figures and letters “trial of Rape or an offence under section 376, section 376A, section 376B, section 376C, section 376D or section 376E of the Indian Penal Code” shall be substituted.

There is a change to 1^st Schedule of Cr.P.C in view of this Amendment.

AMENDMENTS TO THE INDIAN EVIDENCE ACT, 1872

1. S.53 A is inserted: It says Evidence of character or previous sexual experience not relevant in certain cases.

“53A. In a prosecution for an offence under section 354, section 354A, section 354B, section 354C, sub-section (1) or sub-section (2) of section 376, section 376A, section 376B, section 376C, section 376D or section 376E of the Indian Penal Code or for attempt to commit any such offence, where the question of consent is in issue, evidence of the character of the victim or of such person’s previous sexual experience with any person shall not be relevant on the issue of such consent or the quality of consent.”.

2.S.114 A is inserted: It says Presumption as to absence of consent in certain prosecution for Rape.

S.114A: In a prosecution for Rape under clause (a), clause (b), clause (c), clause (d), clause (e), clause (f), clause (g), clause (h), clause (i), clause (j), clause (k), clause (l) or clause (m) of sub-section (2) of section 376 of the Indian Penal Code, where sexual intercourse by the accused is proved and the question is whether it was without the consent of the other person alleged to have been sexually assaulted and such other person states in that person’s evidence before the court that such person did not consent, the court shall presume that such person did not consent.

Explanation.–– In this section “sexual intercourse” shall mean any of the acts mentioned in clauses (a) to (c) of section 375 of the Indian Penal Code.’.

3.S.119 A is inserted. It talks about a situation when a Witness is unable to communicate verbally.

S.119:- A witness who is unable to speak may give his evidence in any other manner in which he can make it intelligible, as by writing or by signs; but such writing must be written and the signs made in open Court, evidence so given shall be deemed to be oral evidence:

Provided that if the witness is unable to communicate verbally, the Court shall take the assistance of a special educator or interpreter in recording the statement, and such statement may be videographed.”.

4.For S.146 Proviso is added:

   “Provided that in a prosecution for an offence under sub-section (1) or sub-section (2) of section 376, section 376A, section 376B, section 376C, section 376D or section 376E of the Indian Penal Code or for attempt to commit any such offence, where the question of consent is an issue, it shall not be permissible to adduce evidence or to put questions in the cross-examination of the victim as to the general immoral character, or previous sexual experience, of such victim with any person for proving such consent or the quality of consent.