The Criminal Law

THE CRIMINAL LAW (AMENDMENT) ORDINANCE, 2018 – ANALYSIS OF THE COHERENCE OF THE STEP BY THE GOVERNMENT

The Criminal Law (Amendment) Ordinance, 2018 (“Ordinance”), as promulgated by the President on 21st April, 2018, provides for certain amendments in the Indian Penal Code, 1908 (“IPC”), Indian Evidence Act, Code of Criminal Procedure, 1973 (“CrPC”) and Protection of Children from Sexual Offences Act (“POCSO Act”). The Ordinance has brought in some positive changes to the aforementioned statutes as following:

  1. NEW OFFENCES UNDER THE IPC:
  2. Age Group: Below 12 years

Offence: Rape

Punishment: Rigorous imprisonment of at least 20 years extendable to life imprisonment, along with fine, or, death.

Provision: Section 376AB of IPC

 

  1. Age Group: Below 12 years

Offence: Gang Rape

Punishment: Life imprisonment, along with fine, or, death

Provision: Section 376DB of IPC

 

  1. Age Group: Below 16 years

Offence: Rape

Punishment: Minimum rigorous imprisonment of at least 20 years, extendable to life imprisonment, along with fine

Provision: Section 376(3) of IPC

 

  1. Age Group: Below 16 years

Offence: Gang Rape

Punishment: Life imprisonment, along with fine.

Provision: Section 376DA of IPC

 

  1. AMENDMENTS TO CrPC, :
  • Time-bound investigation: The Ordinance amends Section 173 of CrPC, thereby reducing the time for completion of investigation from the earlier prescribed period of three months to two months.
  • Appeal: The Ordinance amends Section 173 of CrPC, thereby providing that an appeal against a sentence related to rape cases must be disposed of within six months from the date of filing of such appeal.
  • Anticipatory Bail: The Ordinance amends Section 438 of CrPC, thereby restricting the grant of anticipatory bail in cases under Section 376AB, Section 376DB, Section 376(3) and Section 376DA of IPC.
  • Day-to-day trial: U/s 309 of CrPC, inquiry or trial in the proceedings shall be continued from day-to-day, until all the witnesses have been examined. The Ordinance extends this provision to cases under Section 376AB, Section 376DB, Section 376(3) and Section 376DA of IPC.
  • Compensation: Section 357B of CrPC provides that the compensation u/S 357A of CrPC payable by the State Government to the rape victim and the dependents shall be payable, in addition to the fine payable to the victim u/S 326A or section 376D of IPC. Apart from this, Section 357C of CrPC provides the victim shall be provided first-aid or medical treatment free of cost at all hospitals run by the Central Government, the State Government, local bodies or any other person These two provisions i.e. Sections 357B and 357C have now been extended to cases under Section 376AB, Section 376DB, Section 376(3) and Section 376DA of IPC.

 

  1. AMENDMENTS TO THE INDIAN EVIDENCE ACT, 1872 :

In Section 53A of the Indian Evidence Act, evidence of character or previous sexual experience of the victim is not relevant where the question of consent is in issue. Further Section 146 of the Act provides that when a witness is cross-examined, he may be asked any question which tends to test his veracity, to discover who he is and what is his position in life, or to shake his credit, by injuring his character. Both these provisions i.e. Sections 53A and 146 have now been extended to cases under Section 376AB, Section 376DB, Section 376(3) and Section 376DA of IPC.

 

COMMENT:

The amendment enhancing the punishment for offenders is a step forward. The Ordinance has introduced less ambiguous provisions which are more stringent which may act as a deterrent to curb the commission of the offence. It effectively addresses the heinous crimes against the girl child. However, there is also a need to provide for similar provisions which address similar offences against the male child under the age of 12 years. For this, the government has proposed to amend the POSCO Act to make it more gender neutral.