Be it the Kathua rape case, Unnao rape case or the recent Bihar Rape Scandal and innumerable such cases happening every day, the country is descending towards becoming a society where a part of the populace is unsafe owing to their gender i.e. female. Whenever any such incident occurs, the entire country witnesses an upsurge which is even though temporary in nature, yet the recent upsurge that happened during the Kathua rape case lead to the promulgation of Criminal Law (Amendment) Ordinance, 2018 on 21st April 2018.

The Lok Sabha on 30th July 2018 passed the Criminal Law (Amendment) Bill 2018 repealing the abovementioned Ordinance. This Bill is centered towards increasing the punishment for rape on a woman below the age of 16 (sixteen) or 12 (twelve) by making necessary and relevant changes, modifications and omissions in the Indian Penal Code, 1860, Indian Evidence Act, 1872, The Code of Criminal Procedure, 1973 and the Protection of Children from Sexual Offences Act, 2012. This Bill saves all the acts undertaken under the amendment proposed by abovementioned Ordinance from the date 21st April 2018. The following is the list of amendments brought in the aforementioned legislations-

A. INDIAN PENAL CODE, 1860-

  1. Firstly, section 376 providing for ‘Punishment for rape’ is amended in the following manner-
  2. The punishment for rape in all cases except the ones mentioned under sub-section (2) of section 376, is enhanced to be not less than 10 (ten) years, but which may extend to life imprisonment and fine;
  3. Section 376 (2) (a) (i) has been omitted leading to remove the barrier that only those situations were taken into consideration where the police officer commits rape within the limits of the police station to which the officer is appointed.
  4. Sub-section (3) is inserted to section 376 providing that the punishment for rape on woman below the age of 16 (sixteen) years shall not be less than 20 (twenty) years but may extend to life imprisonment which shall mean the remainder of that person’s natural life and fine;
  5. Secondly, section 376AB has been inserted in the Act after section 376A. This new section deals with punishment for rape on a woman below the age of 12 (twelve) years. The prescribed punishment is rigorous imprisonment which shall not be less than 20 (twenty) years but which can extend to life imprisonment and fine or death;
  6. Thirdly, section 376DA has been inserted which deals with punishment for gang rape on woman below the age of 16 (sixteen) years, which is imprisonment for life and fine;
  7. Fourthly, succeeding the abovementioned section, another section 376DB has been inserted which provides for punishment for gang rape on a woman below the age of 12(twelve) years. The punishment prescribed is imprisonment for life and fine or death;
  8. Fifthly, at all instances in the abovementioned newly inserted sections where the punishment is mentioned to be life imprisonment it shall mean imprisonment for the reminder of that person’s life;
  9. Sixthly, at all instances in the abovementioned newly inserted sections where the punishment includes fine, that fine shall be just and reasonable to meet the expenses incurred for medical facilities as well as rehabilitation and that fine shall be paid to the victim;
  10. Seventhly, all the section across the entire Act wherein there is a special provision for rape, like section 166A(c), 228A(1), 374E the newly inserted sections i.e. 376AB, 376DA and 376DB has been added.

B. INDIAN EVIDENCE ACT, 1872-

In this Act there are two amendments which deals with Evidence of character or previous sexual experience etc. with respect to trial regarding offences related to rape. Section 53A and 146 proviso stands amended by inserting the new section 376AB, 376DA and 376DB in the list of sections already mentioned.

 

C. CODE OF CRIMINAL PROCEDURE, 1973-

The following is the list of amendment to this Code-

  1. Section 26(a) proviso which deals with trial of offences relating to rape is to be presided by a woman. In the list of sections, the newly inserted section i.e. 376AB, 376DA and 376DB is added;
  2. Both the proviso to section 154 which deals with information in cognizable cases stands amended by addition of the newly inserted sections;
  3. Section 161(3) second proviso which provides the procedure for examination of witnesses by police in cases related to rape is to be recorded by woman police officer is amended by adding the newly inserted sections in the list;
  4. Section 164(5A) is amended by adding the newly inserted sections by this Bill;
  5. A major change has been brought in the time period within which investigation related to all forms of offences related to rape is set to be 2 (two) months;
  6. Section 173(2)(h) which deals with attaching the medical report of the victim of rape in the final report submitted by the police officer on completion of investigation also stands amended by adding the newly inserted sections in the list;
  7. Section 197 is amended in the similar fashion by adding the newly inserted sections in the list of sections prescribed in Explanation attached to sub-section (1) of this section;
  8. On the similar line of just adding the newly inserted sections in the list of sections, section 309, 327, 357B and 357C of the Code is also amended;
  9. An important amendment with respect to appeal is also introduced by amending section 374. According to this amendment the appeal from sentence passed in a trial dealing with any offence related to rape has to be mandatorily disposed of within 6 (six) months;
  10. On the similar line as mentioned in the abovementioned point, section 377 which provides for appeal by the State Government against sentence is amended, providing the time period for disposing of the appeal is set to be 6(six) months);
  11. Another noteworthy change made by this Bill is that the provision relating to anticipatory bail is made non-applicable to offences of rape and all forms of it as mentioned in the Indian Penal Code, 1860; (Amendment in section 438 of the Code)
  12. Section 439 which provides for regular bail also stands amended only with respect to offence of rape and all forms of it. The amendment prescribes that before granting the bail the court has to send a notice within a period of 15(fifteen) days from the receipt of application for bail to the public prosecutor. Amendment to this section also adds sub-section (1A) according to which the presence of informant or any person authorized by is him is mandatory for hearing the application for bail to the person under section 376(3) or section 376AB, 376DA or section 376DB;
  13. All the new sections added by way of this Amendment Bill has been made cognizable, non-bailable and triable by court of sessions by amending Schedule I;

 

D. PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT, 2012-

This act stands amended by adding the newly inserted sections in section 42 of this Act.

 

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Bill: Criminal Law (Amendment) Bill 2018