Tag: crime

The Rape Victim in India: Section 375 of IPC

Law

March 11, 2023
/ Leave a Comment on The Rape Victim in India: Section 375 of IPC

11 min
10 months
2,062 words

Tagged consent, crime, fundamental rights, Indian Penal Code, Marriage

The Rape Victim in India: Section 375 of IPC

Rape is also a crime against women. It is one of the most heinous crimes. India registered 31,677 rape cases in 2021 and lodges 86 rapes daily. And many cases are not being registered just because of the fear of society.

Author:- Nainsi Bohare

Keywords:- Rape victim, women, crime, fundamental rights, Section 375, Indian Penal Code, consent, will, society, marriage

Introduction

Any kind of violation against women is a violation of fundamental rights i.e. Right to life and Personal Liberty in Article 21 of the Indian Constitution. The state must protect women from any kind of offense against women and also create an environment that is free from any crime and provide equal opportunity to women in every field. The state should also ensure that women should participate in the opportunities provided by the state without any fear. There are various crimes which are against the women like domestic violence, dowry death, etc.

Rape is a crime that does not only affect women physically but also psychologically and mentally and leaves its scars forever in the life of the victim.

Offenses related to sex have existed since time immemorial. Though we have a lot of provisions related to rape and the rights of rape victims still there are an increasing number of cases in society. The reason is the mentality of the society, lack of knowledge, and also many people think that they will dominate the women. This can be prevented when the women know about their rights and take action against the heinous act which happened to them.

RAPE

Rape is defined in SECTION 375 OF INDIAN PENAL CODE, 1860.

According to the section 375:–

A man is said to commit “rape” who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:

Against her will
Without her consent
With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or hurt.
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 herself to be lawfully married.
With her consent, when at the time of giving such consent, because of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
With or without her consent, when she is under sixteen years of age.

Explanation to Section 375- Penetration is sufficient to constitute the sexual intercourse necessary to the offense of rape.

Exception- Sexual intercourse by a man with his wife, the wife not being under fifteen years of age, is not rape.

In other words

In simple words rape means, sexual intercourse by a man with a woman without her consent constitutes rape. Rape also means “the ravishing or violation of a woman.” The word rape is derived from the Latin word ‘rapio’ which means to seize. Thus the literal meaning of rape is a forcible seizure.

Rape is not a crime against an individual but it is the crime against society.

In the case Rafiq v. State of UP where it was said that the murderer kills the body of a victim but rape kills the soul of the victim. Thus from this, we can consider rape as the more serious offense against humankind than murder.

Section 375 plays an important role in bringing justice to the victim suffering from the pain of rape.

CONSENT

Consent plays a very important role in rape. For the definition of rape, consent is the essential ingredient. There is no appropriate definition of consent is given under any provision or law. Consent can be defined either through laws or cases. The definition of consent varies from state to state. Hence, it depends upon the rules and cases of the particular state.

EXPLANATION 2 OF SECTION 375 OF IPC

The Explanation to Section 375, describes consent as “an unequivocal communicates a willingness to engage in the specific sexual acts through words, gestures, or any other means of verbal or nonverbal communication.

Some points indicated the capacity to consent:

AGE: The major factor for consent is age. If the consent is given by the major person i.e., if the person is above 18 years of age, then their consent is valid. But if the consent is given by under 18 years of age person then the consent would not be considered and it commences rape.
INTOXICATION: If the consent is given by an intoxicated person, then the consent would not be considered valid because the person is not in their senses.
MENTALLY DISABLE: If the person is mentally disabled and did not able to make decisions then their consent is also considered invalid.

THE PROTECTION OF CHILDREN FROM SEXUAL OFFENCES (POSCO) ACT was introduced in 2012. This act includes a detailed definition of sexual harassment of children. The act describes the various kinds of penetrative and non-penetrative sexual assaults, as well as their penalties

The most famous case Delhi Gang Rape case which is also known as the Nirbhaya Rape Case is the case that defines consent as the unequivocal voluntary agreement to participate in a sexual offense.

FACTORS RESPONSIBLE FOR THE OFFENCE OF RAPE

The mindset of the people: This is the ancient problem of society, where a man thinks that women are inferior. They can rule over her mind, soul, and body. This cheap mentality leads to an increase in the offense of rape.
Awareness among women: This is also the main issue, women don’t know their rights. Women need to be aware of their rights so that they can come forward and talk about the molestation and any offense that happens against them.
Legal laws: Even though we have a lot of provisions in our law but still there are some loopholes in our system. Marital rape still does not recognize as rape under section 375 of IPC.

RIGHTS OF THE RAPE VICTIM

According to the provision of rights of rape victims, there are total 6 rights given to rape victims they are-

Right to zero FIR
Free medical treatment in any private hospital
No two-finger test during the medical examination
Harassment-free and time-bound police investigation
Trial with full dignity, speedy and protection
Right to compensation

RIGHT TO ZERO FIR

A zero FIR is an FIR that can be filed by victims in any police station irrespective of their jurisdiction. If the offense of rape happened in district A and then the victim moves to the other place B then, she can file FIR in district B also for the offense of rape.

The FIR after being registered is transferred to the police station which has its jurisdiction and then the investigation begins.

In the case of LALI TA KUMARI V. GOVERNMENT OF UP, it was clearly stated by the Supreme Court that, a person can file FIR in any police station irrespective of its jurisdiction under section 154 of The Criminal Procedure Code, 1973. And if any police officer denies registering FIR then he is liable under Section 166 of the Indian Penal Code, 1860.

RIGHT TO FREE MEDICAL TREATMENT IN ANY PRIVATE HOSPITAL

According to section 357C of CRPC, the government hospitals or private hospitals shall provide free medical treatment to the rape victim. They should immediately provide first aid to the rape victim. If they demand fees for the treatment of rape victims then they are punishable under section 166B of the Indian Penal Code, 1860, with 1 year of imprisonment or fine, or both.

NO TWO-FINGER TEST DURING MEDICAL EXAMINATION

No doctor shall possess two-finger tests during the medical examination of the rape victim. As per section 164A of CRPC, this section tells how the reports are made and what is included in the reports.

Supreme Court in the cases of LILLU ALIAS RAJESH AND ANOTHER V. STATE OF HARAYANA stated that two-finger tests violate the privacy, integrity, and dignity of the rape victim. Hence two-finger test is illegal. And only lady doctors shall examine the rape victim.

RIGHT TO HARASSMENT-FREE AND TIME-BOUND INVESTIGATION

The statement must be recorded by a female police officer or any other particular officer that will come on time decided by the victim and should fix the place where the victim is comfortable. This is given in Section 154 of Criminal Procedure Code.

The female police officer shall record the statement in the presence of the victim’s parents or guardian. The magistrate can also record the statement according to section 164(5-A) of CRPC.

If the rape victim is mentally unstable or of unsound mind, then Analyzer Educator Social Interpretation shall be present at that time to understand the victim.

TRIAL WITH FULL DIGNITY, SPEEDY AND PROTECTION

The statement given by the victim in court shall be practicable. No further questions would be asked to the rape victim which questions her character. According to section 53A of The Indian Evidence Act, questions related to the victim’s past sex history asked during inquiry are irrelevant.

Inquiry and trial of the rape victim shall be held in front of the camera, according to section 327(2) of CRPC.

The information given by the rape victim to the Magistrate shall be confidential, according to section 327(3) of CRPC.

The investigation of the rape shall be completed within 2 months from the date on which the FIR was filed by the victim, according to section 173(1A) of CRPC. This was stated in the case STATE OF KERELA V. RASHEED.

The court must protect the victim and the witness so that no one can threaten them. And it is also the responsibility of the police to pick up the victim safely from their home and also to drop off the victim. There are special waiting rooms for the victim and the witness as well.

RIGHT TO COMPENSATION

This provision came in CRPC under section 357A through a case NIPUN SAXENA V. UNION OF INDIA. According to this provision, compensation should be given to the victim. The compensation scheme was introduced in this case on 11-05-2018 by the Supreme Court.

As per the scheme, a minimum of 4 Lakh rupees and a maximum of up to 7 Lakh rupees should be given to the victim as compensation.

In the case of SERINA MONDAL ALIAS PIYADA V. THE STATE OF WEST BENGAL AND ORS, it was held that the compensation is given to the victim as the protection of their fundamental rights.

PUNISHMENT FOR THE OFFENCE OF RAPE

When it comes to the punishment for his heinous offense every punishment seems to be less. SECTION 376 OF INDIAN PENAL CODE, 1860 lays down the punishment for this offense. Earlier the punishment for this offense was 7 years of imprisonment and in some cases life imprisonment. But after the 2012 Nirbhaya gang rape case, the punishment for rape was changed.

The Criminal Law (Amendment) Act of 2013 which was enforced on 2 APRIL, 2013. The punishment for rape increased to 10 years of imprisonment. While in some cases death penalty is also imposed if the victim dies or was left in a vegetative state.

The punishment for gang rape had also increased to 20 years of imprisonment and a maximum of life imprisonment.

CONCLUSION

Rape is a serious offense and giving punishments to the accused cannot decrease the number of rape cases. This type of heinous crime can only be stopped when there are strict laws in our system. The government should focus on the education of the people. Especially teenage people because according to the reports, there are large numbers of teenagers involved in rape cases. Sexual education should be given to teenagers and other people who are not aware of it. Because spreading awareness about this will help decrease this type of crime.

Women should also be aware of their rights. Various laws in our system protect women. But most women don’t know about their rights. The government provided women’s helpline numbers i.e. 1090 and also there are various services provided by the government such as dropping the women at their homes at night.

Hence, there are various services launched by the government for the protection of women. But women should be aware of their rights and these services and must use them when she is needed.

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How to file a Criminal Complaint in India | Step by Step Procedure | FIR

Law

April 26, 2022
/ Leave a Comment on How to file a Criminal Complaint in India | Step by Step Procedure | FIR

9 min
2 years
1,754 word

Tagged crime, criminal complaint, crpc, FIR, India

How to file a Criminal Complaint in India | Step by Step Procedure | FIR

This article discusses the process of filing a criminal complaint in India. It is also inclusive of the steps an applicant can/should take when filing a complaint.

Keywords: criminal complaint, cognizable offence, non-cognizable offence, FIR

Author – Riya Garg

Reporting a crime is the first step of any criminal proceedings. However, many crimes that actually occur in the society never make the headlines since they are never reported. For instance, a large number of crimes against women go unreported every year. While there may be many reasons for the same, one of the biggest contributing factors is the lack of awareness. Regarding the correct procedure to file a criminal complaint. Thus, it is very important that one knows the correct procedure of reporting a crime.

The process of filing a criminal complaint is not a difficult one to understand. Also, if understood correctly, it comes a long way in improving the criminal justice system of the country. This article discusses the process of filing a criminal complaint in India. It is also inclusive of the steps an applicant can/should take when filing a complaint.

What is a Criminal Complaint?

It is a complaint that incorporates those facts and circumstances that are part of the criminal case. The Indian Penal Code, 1860 (hereinafter referred as “IPC”) is the substantive penal law of India. Which defines all the offences and provides their punishments.

Procedure for filing a criminal complaint-

The procedure for filing a complaint and the subsequent trial and other aspects of criminal law in relation to investigation, bail, etc. are incorporated into the Code of Criminal Procedure, 1973 (CrPC).

Firstly, it is important to understand that a criminal offence can be of two types –cognizable offence or non-cognizable offence. An offence in which a police officer may arrest an accused without having a warrant is referred to as a cognizable offence. An offence in which a police officer has no authority to arrest without a warrant is referred to as a non-cognizable offence. The First Schedule of the CrPC provides a list of offences and classifies each offence as either of cognizable or a non-cognizable nature.

It must be noted that the procedure for reporting a cognizable offence is different to that of non-cognizable offence and is discussed in the next section.

Reporting an offence of a cognizable nature

1. First Information Report (FIR) –

Whenever a crime is committed, the victim or any person with knowledge of the crime can go to the police station to record the statement. In case the offence is of a cognizable nature; it is the duty of the officer in charge of the said police station to reduce the information. It should be written in a manner determined by the State Government.

Additionally, it is the responsibility of the officer to read over the contents of the said writing to the Complainant and take his/her signature. The said writing taken down by the police officer in the prescribed format is called a First Information Report (FIR).

It falls under Section 154 of the CrPC. The duty of the police is to listen to victim and refer him/her to the District Magistrate for further action. There are no charges for filing an FIR, it is an important document that puts the criminal justice system in place. It is important to note that in case the Complainant is a woman victim of an offence such as acid attack, sexual offences, etc., then only a woman officer can record her statement.

What can you do if your FIR is not registered? –

In many cases, it has been noted that the police do not want to take any case record. It is illegal to not register an FIR. The remedies available are:

You can meet higher officers like Deputy Inspector General of Police & Inspector General of Police and inform them of your complaint.
You may submit your complaint in writing to the Superintendent of Police concerned under Section 154(3) of the CrPC. If he/she is satisfied with your complaint, he/she will either investigate the case himself or order an investigation.
You can lodge a private complaint with a Magistrate under Section 200 of the CrPC
You can also lodge a complaint with the State Human Rights Commission or the National Human Rights Commission. This is done if the police does nothing to enforce the law or act in a biased and corrupt manner.

2. Jurisdiction of police station –

Sometimes the officers do not take the information because the offence has not been committed within the jurisdiction of the police station. On plain reading of the provisions and as held by the High Court, a police officer is duty bound to register the case on the basis of information disclosing a cognizable offence. If at the time of registration of FIR, it becomes clear that the crime had been committed outside the area of jurisdiction of the police station, then the police officer must file a ‘Zero’ FIR. He/she should ensure that the FIR is transferred to the relevant police station later. The refusal of the police to record sensitive information may lead to penalties under the Indian Penal Code for such officers.

What is a zero FIR and when does it apply?

An FIR that can be filed at any police station regardless of the area of jurisdiction is known as Zero FIR. It is eventually transferred to another police station with the authority to conclude the investigation. The purpose of filing a Zero FIR is to obtain evidence in cases involving sexual assault, murder, road rage etc. These are situations where immediate investigation is required. Also, time cannot be wasted in reaching the police station under whose jurisdiction the crime falls because evidence is capable of being manipulated or corrupted. The main idea of a Zero FIR is to start the investigation or to encourage the police to take their first step.

3. Investigation

On receipt of information of a cognizable offence the police have the power to investigate the matter without the Magistrate’s order. If the investigation is not being carried out in a biased manner then appropriate application can be made to the relevant Magistrate. The police conduct an investigation, which may also include arrests. Once the investigation is complete the police will record all their findings in a charge sheet. If it is deemed that there is enough evidence on the charge sheet the case goes to court.

However, after their investigations if the police conclude that there is insufficient evidence/proof that a crime has been committed. They can close the case after justifying their reasons in court. If the police decides to close the case, it is their responsibility to inform the person who filed the FIR of their decision.

Reporting an offence of a non-cognizable nature

If the disclosed information reveals the commission of a non-cognizable offence. The concerned police officer will file an NCR (Non-Cognizable Report) under Section 155 of the CrPC. The concerned police officer then forwards the NCR to the Magistrate and has no jurisdiction to investigate such a case without the Magistrate’s order.

In the case of information on an anonymous matter, the officer in charge of the police station within the limits of which said offence; has been committed will incorporate the contents of the said information in a book. This is done according to the tenets of the State Government. The said Complainant is then forwarded to the Magistrate.

It is important to note that the police does not have the power to investigate or take action in relation to a non- cognizable offence. Without such order of the relevant Magistrate, police cannot take any action. Pursuant to the order of the Magistrate directing investigation, the officer shall have the same powers of investigation as he has in case of a cognizable offence. However, he will not have the power to arrest the accused without warrant.

If the police does not file the said details of non- cognizable offence with the Magistrate seeking his permission or an investigation order. The Complainant may send follow up letters to the specified police station where the information was provided. In addition, the Complainant may also file a private complaint before the concerned Magistrate.

Filing a complaint before the Magistrate

The complainant may also go directly to the relevant Magistrate who has jurisdiction over the alleged case. An aggrieved person or person with knowledge of the commission of a particular crime can lodge a complaint with a competent Magistrate. This is similar to the provisions mentioned under Section 200 in CrPC, 1973.

If the complaint is not in written form –

After receiving the complaint, the Magistrate decides on the cognizance of the offence. He then examines, by oath, the complainant and the witness, if any. The complaint is then reduced to a written record. The plaintiff and the witnesses must sign the same before the Magistrate.

If the complaint is in written form –

The Magistrate must examine the complainant and the witness unless –

The complainant is a designated public servant in discharge of his official duties (in case of NDPS Act, PMLA, RBI Act etc).
If the Magistrate forwards the case to another Magistrate for any trial or inquiry under Section 192.

If the Magistrate is of the opinion that a crime has been committed, he may issue proceedings against the accused. In common parlance this is a notice directing the accused to remain in the presence of the Magistrate. In some cases, the Magistrate may direct further investigation into the matter before the process is issued against the Accused.

Role of the Complainant after registering offence

Once the complaint has been lodged, the officer of the relevant police station will conduct an investigation. If an offence is made out, a charge sheet is filed in the said case. During the investigation, the police record the statements of witnesses and collect relevant evidences. The role of the victim is to visit the police station and give his/her statement to the police. In addition, he/she may also suggest names of other witnesses who may have important information about the case.

At the end of the investigation the police officers may file a C-summary report before the Magistrate. Here, they confirm that the offence is not made out or the dispute between the parties is civil in nature. When an offence is made out the police officers may file a charge sheet before the Magistrate and the trial will continue. At the trial stage the complainant will be summoned by the Court to record his or her testimony.

THIS WRITE-UP IS EDITED BY: SOMPRIKTA BANERJEE

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Article

January 12, 2022
/ Leave a Comment on Role Of Media In Child Abuse

6 min
2 years
1,115 word
1

Tagged abuse, Child, crime, cyber crimes, media and crime

Role Of Media In Child Abuse

The media has played an important role in constructing child abuse as an issue to be urgently addressed

Author: Lavanya Murali

The media has played an important role in constructing child abuse as an issue to be urgently addressed. Child abuse can be defined as a variety of harmful behaviors directed against children. It can take many forms. It was once an issue largely neglected, but as a result of progressive media exposure, the severity is now being revealed. Seen across a variety of media content including TV Dramas, Soap Operas, Movies, news programs, etc, the gravity of the situation has reached a diverse audience.

The media has certainly played a huge role in the exposure of incidents of child abuse. However, many have observed that the media has only very recently shown a keen interest in this issue. It has just ridden the coattails and reflected the views of others. This laid the groundwork for effectively addressing this issue. A powerful influencer, especially in today’s world, the media is capable of swaying people’s perceptions on any topic and is responsible for how child abuse is viewed.

The Impact of Media

In her research, Kitzinger found that the media transformed public knowledge, but another important effect was the impact it had on “private” knowledge. It was not until the mid-1980s that survivors of abuse understood what they had been going through. This struggle to interpret their situation was the result of various factors. These included, inadequate conventional categories, cultural taboos on incest, and other social factors. Abused children and adults often had to process their experiences in the vacuum of social support. The media representation of abuse provided them with a framework for thinking about and processing their experiences and emotions.

The media has represented all types of abuse faced by children. ranging from sexual, physical, emotional, neglect – to how to report and handle these issues. Sensitizing the communities to such matters has allowed a larger number of perpetrators to be punished and has also provided validation to the victims.

There is, however, speculation that damaging distortions of information have created an atmosphere of fear, blame, and mistrust. As a result of defensive responses by national and local authorities, the child protection system has been under fire many times. The media has been a savior to several survivors of child abuse. There is, however, a dark side to media that is linked with abuse.

Social Media

With the spread of social media sites and the spikes in their usage, grooming has become quite easy. Grooming is the process by which someone builds a relationship with someone younger. This is done by gaining their trust and creating an emotional connection, only to manipulate, exploit and abuse them. This form of abuse is very prevalent, and many people experienced this when they were younger. The abusers shift the expectations of what safe behavior is and leverage fear and shame to keep the child silent. However, they may not have understood the situation completely, or thought if they brought up the problem they would also be incriminated.

Grooming can be done through several sources. Such as distinct servers, chatrooms, special interest groups, and other online forums targeting younger spectators. Older people infiltrate these forums and platforms with the intention of grooming. They prey on the curiosity and vulnerability of children while keeping their identity hidden through means like cat-fishing. Children often do not realize until it is too late. They may feel confusion, embarrassment, sorrow, or other emotions that may prevent them from speaking up about the abuse they are facing.

Trolling & Bullying

Online trolling and cyberbullying is another traumatic experience that many children go through. The anonymity of the internet has increased in cases of cyberbullying. Unlike traditional bullying that takes place only physically in certain places. Cyberbullying can take place anywhere at any time. The perpetrators can cause distress to the victim through online modes at any point in time. It can take place through either public (posts on social media) or private (messages) digital spaces. It is because of this that cyberbullying feels more permanent and the victims cannot see an escape from it ever. When cyberbullying is public, the posts spread fast and wide, and this can cause distress, embarrassment, and isolation. The harassment may then take place physically as well as online.

Stalking

Social media makes it easier to stalk a person through a profile. Stalking is the unwanted, repeated, and illegal surveillance of a person by another individual or group. Through means like cat-fishing, or using a friend’s account, people often engage in stalking behavior in online forums. This can be translated into real life, where the perpetrators use social media posts and other information on the profile to monitor the person physically. Many celebrities are victims of such stalking. Children who are not aware of the dangers posed by uploading certain information on social media may be targeted by abusers. Such trash humans then stalk and traumatize innocent children with it.

Vulnerability

The increase in ease of access to pedophiles has caused an increase in the abuse of children. Building from all these new platforms and illegal websites are morphing of children’s images to create sexual content and child pornography. It has become a lot easier for pedophiles to access content. They target content that suits their sexual preferences as a result of the widespread use of the media and the internet. Through many online forums, they can procure and morph pictures of children and share them. They are also able to access sites that upload child pornography content. Viewing pornographic content is known to create fantasies and expectations that real life cannot match. The perpetrators of child sexual abuse often hope to carry these fantasies into the actual life and groom children to exploit them.

Conclusive Note

The media, however, as mentioned in the beginning is not all bad. The spreading of awareness and child helplines has proven to be very useful in quelling the numbers of abuse seen. The media has opened up new avenues for the spread of awareness and understanding of child abuse. There are organizations that prevent abuse, and other resources for victims. It has also provided victims with clarity to work through their emotions and understand that they are not isolated in their trauma. However, this positive aspect of the media has not been able to keep up with the negative effects it has on child abuse. Still, there are two sides to the same coin, and soon the positive aspects of media should come to dismantle the dark side of it.

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