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Crimes against women and statutes to safeguard.
Constitutional provisions
Preamble
We, the people of India, having solemnly resolved to constitute India into a SOVEREIGN, SOCIALIST, SECULAR, DEMOCRATIC, REPUBLIC, and to secure to all its citizens:
Justice, Social, Economic, and Political; Liberty of thought, expression, belief, faith and worship; Equality of status and of opportunity; And to promote among them all Fraternity assuring the dignity of the individual and the unity and integrity of the nation;
In our constituent assembly, this twenty sixth day of November,1949 do hereby adopt, enact and give to ourselves this constitution.
Article 14
-The state shall not deny to any person equality before the law or equal protection of the laws within the territory of India.
-Reasonable classification
Article15
-Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.
-Discrimination on the grounds of caste, race, religion, sex or place of birth,
-Public places
-Special provisions in favour of women and children
-Special provisions in favour of backward classes
Article 16
-Equality of opportunity in matters of public employment.
-Equality of opportunity
-Exceptions
Article 21A
-Free and compulsory Education for children
Article 23
-Right against exploitation
Article 24
-Prohibition of employment of children in factories etc.
-Directive Principles of state policy: regarding women and children
Article 42
-Provisions for just and humane conditions of work and maternity relief.
Article 44
-Uniform civil code for citizens
Article 45
-Provisions for free and compulsory education for children
Article 51(e)
-Fundamental duty to respect women
Crime against women
(disclosure of Sex of the Child)
2) Section 314 of IPC death caused by act done with intent to cause miscarriage
3) Section 315 of IPC Any act done with the intent to prevent the child being born alive or to cause it to die after birth
4) Section 316 of IPC causing death of quick unborn child by act amounting to culpable homicide
2) Section 366 A of IPC – Procuring of minor girl
3) Section 366 B of IPC Importation of girl from foreign country
2) Section 354 B of IPC Assault or use of criminal force with intent to disrobe
2) 3 to 7 years + Fine
2) Section 354 C of IPC Voyeurism
3) Section 354 D of IPC Stalking
4) Section 509 of IPC Intending to insult modesty of women
2) 1 to 3 years + Fine
3) Upto 3 years + Fine
4) Simple imprisonment for 3 years + fine
2) Section 360 of IPC Kidnapping from India
3) Section 361 of IPC Kidnapping from lawful guardianship
4) Section 363 of IPC Punishment for kidnapping
2) Section 365 of IPC Kidnapping or abducting with the intent secretly and wrongfully to confine the person
3) Section 368 of IPC Wrongfully concealing or keeping in confinement, kidnapped or abducted person
4) Section 369 of IPC Kidnapping or abducting child under 10 years with intent to steal from its person
2) Section 367 of IPC Kidnapping or abducting in order to subject person to grievous hurt slavery etc.
2) Section 370 A of IPC Exploitation of a trafficked person
3) Section 372 of IPC Selling minor for purposes of prostitution etc.
4) Section 373 of IPC – Selling minor for purposes of prostitution etc.
2) 3 years to 7 years + Fine
3) 10 years + Fine
4) 10 years + Fine
Section 376 of IPC Punishment for Rape
2) Section 376 C of IPC Sexual intercourse by person in authority
3) Section 376 D of IPC Gang Rape
4) Section 376 AB of IPC Punishment for rape on women under 12 years of age
5) Section 376 DA of IPC Punishment for gang rape on women under 16 years of age
6) Section 376 DB of IPC Punishment for gang rape on women under 12 years of age
2) Rigorous imprisonment for 5 to 10 years + fine
3) Rigorous imprisonment for 20 years to Natural Life + fine
4) Rigorous imprisonment for 20 years to Natural Life or death + fine
5) Imprisonment for Natural Life + fine
6) Imprisonment for Natural Life + fine
2) Section 326 B of IPC Voluntarily throwing or attempting to throw Acid, etc.
2) 5 to 7 years + fine
2) Section 304B Dowry death
2) 7 years to life imprisonment
24) Section 113A in The Indian Evidence Act, 1872
Sec-113A. Presumption as to abetment of suicide by a married woman.When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the Court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband.1[113A. Presumption as to abetment of suicide by a married woman.When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the Court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband.” Explanation.For the purposes of this section, cruelty shall have the same meaning as in section 498A of the Indian Penal Code (45 of 1860).]
25) Section 113B in The Indian Evidence Act, 1872
Sec-113B. Presumption as to dowry death.When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman has been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death. Explanation.for the purposes of this section, dowry death shall have the same meaning as in section 304B, of the Indian Penal Code, (45 of 1860).]
Bailable and Non – Bailable offences [Section. 2(a)] as per CrPC
A bailable offence is an offence which is shown as bailable in the First schedule of the code, or which is made bailable by any other law for the time being in force.
A non bailable offence means any other offence.
The word bail means release of a person from legal custody. Thus, when a person is granted bail, he is released from restraint. It may be noted that in the case of a bailable offence, bail can be claimed as a matter of right [S. 436(1)]
Anticipatory Bail [Section. 438] as per CrPC
S 438 A lays down that if any person has reason to believe he may be arrested on an accusation of having committed a non-bailable offence, he may apply to High court or to Sessions court for a direction that, in the event of such arrest, he is to be released on bail. The court may, after considering the factors, either reject the application forthwith or issue an interim order for grant of anticipatory bail.
Cognizable and Non – Cognizable offence [Section. 2(c) & 2(1)] as per CrPC
S.2(c) Cognizable offence” means an offence for which, and” cognizable case” means a case in which, a police officer may, inaccordance with the First Schedule or under any other law for the time being in force, arrest without warrant.
Cognizable offence means an offence for which a Police Officer may (in accordance with schedule I of the code or under any law for the time being in force) arrest without a warrant.
S.2(1) Non- cognizable offence” means an offence for which, and” non- cognizable case” means a case in which, a police officer has no authority to arrest without warrant
A Non-Cognizable offence is one where a police officer has no such authority to arrest without a warrant.
Non-cognizable offences are thus more trivial and less serious than cognizable ones.
In the former, the police will not interfere or arrest the offender without a warrant; in thr latter, the police is authorised to arrest without a warrant, as the offender might escape by the time Police obtained a warrant.
First Information Report (F.I.R.) [Section. 154] as per CrPC
The condition that such information must be signed by the person giving it, is merely a procedural matter, and the failure to this does not make the information inadmissible.
If the officer in charge refuses to record such information, the aggrieved person may send the same by post to the Superintendent of Police.
Even a telephonic message can be treated as an FIR.
It will be seen that S. 154 enables a station house officer to receive and record the information of the commission of a cognizable offence even outside his station limit, although he may have no power to investigate under s. 157 to conduct an investigation in respect of that offence.
The 2013 amendment now provides that if information is given by the women against whom certain specified offences under the IPC are alleged to have been committed or attempted, thrn the information is to be recorded by a woman police officer or nay woman officer.
The term FIR is thus a technical description of the report made out under S. 154 giving first information of a cognizable crime to the police. This report is usually made by the complainant or some other persons on his behalf.
The following four points may be noted about a first information report:
Punishment for giving false information to the police is dealt with by sections 182, 203, and 211 of the IPC. Even is such information is not reduced to writing under S.154, the person giving the false information may nevertheless be punished for preferring a false charge under S.211 of the IPC.
A police officer refusing to enter in the Dairy a report made to him about the commission of an offence, and instead making an entry which is totally different from the information given, would be guilty under S.177 of IPC.
How to Register an FIR?
Non-Cognizable (N.C.) offences [Section. 2(1)] as per CrPC
NC means a non-cognizable crime. Like, Abuse, simple threats, slapping, causing petty damage to property, etc. are called NC Complaint. Legally speaking, the Police have no powers to investigate such NC complaints. Such complaints are recorded in the Register called NC Registers at the Police Station. The Complainant is given copy of the NC complaint in a printed format. The Complainant is advised, if he so desires, to approach a court of law for action on his complaint. Even if the Complainant does not approach a Court, his complaint on Police record will be useful as a piece of evidence depending upon the nature of the complaint.
Compounding of offences [Section. 320] as per CrPC
Compoundable offences are those offences where, the complainant (one who has filed the case, i.e. the victim), enter into a compromise, and agrees to have the charges dropped against the accused.However, such a compromise should be a “Bonafide,” and not for any consideration to which the complainant is not entitled to. The offences specified in Table A can be compounded by the person mentioned in the 3rd column thereof without the permission of the court. However, the offences mentioned in Table B can be compounded only with the permission of the court before which such any prosecution for such offence is pending. It follows that the all other offences cannot be compounded.
The compounding of an offence signifies that the person against whom the offence has been committed has received some gratification, though not necessarily of a pecuniary nature, to act as an inducement to his abstaining from prosecuting the wrong doer.
It may be noted that a case can be compounded at any time before the sentence is pronounced.
In Non-compoundable offense, no compromise is allowed. Even the court does not have the authority and power to compound such offense. Full trail is held which ends with the acquittal or conviction of the offender, based on the evidence given.
TABLE A
Offences which can be Compounded without the permission of the court.
TABLE B
Offences which can be Compounded only with the permission of the court.
Trial before a Court of Session
In every trail before a court of sessions, the prosecution shall be conducted by a public prosecutor.
In all cases when the accused appears or is brought before the court in pursuance of the commitment of the case under S. 209, the prosecutor must open his case by describing the charge brought against the accused, and stating by what evidence he proposes to prove gilt of the accused.
After considering the record of the case and the document submitted therewith, and after hearing the submissions of the accused as well as of the prosecution, if the Judge considers that there is no sufficient ground for proceeding against the accused, he must discharge the accused and record his reasons for doing so.
If, on the other hand after considering the record and documents and after hearing the submissions, as stated above, the Judge is of the opinion that there is ground for presuming that the accused has committed an offence
If the accused refuses to plead guilty or does not plead guilty, or claims to be tried, or is not convicted despite of pleading guilty, the Judge must fix a date for examination of witness. On an application of the prosecution, the Judge may also issue any process for compelling the attendance of any witness or the production of document or other thing.
On the date so fixed, the Judge must proceed to take all such evidence as may be produced in support of the prosecution. In his discretion, the Judge may also permit the cross examination of any witnesses to be postponed until any other witness or witnesses have been examined. After taking such evidence, examining the accused and hearing the prosecution and the defence on the point, if the Judge considers that there is no evidence that the accused committed the offence, the judge must record an order of acquittal.
If however, the accused is not acquitted as above, he is to be called upon to enter his defence and adduce any evidence which he may have in support thereof. If the accused submits any written statement, the Judge must file it with the record. Similarly, if the accused applies for the issue of any process for compelling the attendance of any witness, or the production of any process for compelling the attendance of any witness, or the production of any document or other thing, the Judge must issue such process, unless considers that such an application should be refused on the ground that it is made for the purpose of vexation or for delaying or defeating the ends of justice. In case of such refusal, the Judge must record his reasons for doing so.
When the examination of the defence witness is complete, the prosecutor sums up his case, and the accused or his pleader is entitled to give a reply thereto, if any point of law is raised by the accused or his pleader in such reply with the permission of the Judge, the prosecution can make his submissions with regard to such point of law.
S.235 then provides that, after hearing the arguments and points of law, the Judge must give a judgment in the case. The present code provides thatif the accused is convicted, the Judge must then hear the accused on the question of the sentence to be passed against him, and only thereafter can he pass a sentence against him according to the law.
Trial of Warrant Cases by Magistrate
S.244 provides that if in any warrant-case instituted otherwise than on a Police report, the accused appears or is brought before the Magistrate, the Magistrate must immediately proceed to hear the prosecution, and take all such evidence as may be produced in support of the prosecution, and take all such evidence as may be produced in support of the prosecution. On the application of the prosecution, the Magistrate may also issue a summons to any witness, directing him to attend, or to produce any document or other thing.
If after taking all such evidences, the Magistrate considers, for reasons to be recorded by him, that no case against the accused has been made out which, if unrebutted, would warrant his conviction, the Magistrate must discharge him. Moreover, the Magistrate can also discharge the accused at any previous stage of the case, if he considers the charge to be groundless, for reasons to be recorded by him.
If, on the other hand, the Magistrate is of theopinion that there is some ground for presuming that t5he accused has committed an offence which is triable, and which the Magistrate is competent to try, and which, in his opinion, can be adequately punished by him, he must frame a charge in writing against the accused. The charge is then to be read out and explained to the accused and he is to be asked whether he pleads guilty or whether he has any defence to make.
If the accused pleads guilty, the Magistrate must record the plea and may in his discretion convict him on such plea.
If however the accused refuses to plead or does not plead, or claims to be tried, or if he is not convict despite pleading guilty, the accused must be required to state whether he wishes to cross-examine any witness for the prosecution whose evidence had already been taken. If he wishes to do so, the witness named by him must be recalled, and after cross examination and re-examination (if any), such a witness is to be discharged. After this the accused is to be called upon to enter upon his defence and produce his evidence.
If after considering the Police Report and other documents, and after examining the accused, and after giving the prosecution and the accused an opportunity of being heard in the matter, the Magistrate considers that the charge preferred against the accused is groundless, he must discharge him and record his reasons for doing so.
If on the other hand, the Magistrate is of the opinion that there is ground for presuming that the accused has committed an offence which can be tried, and which the Magistrate is competent to try, and which in his opinion, can be adequately punished by him, he must frame a charge in writing against the accused. This charge is be then read and explained to the accused, and he must be asked whether he pleads guilty of the offence which he is charged with, or whether he claims to be tried.
If the accused pleads guilty, the Magistrate must record such a plea, and in his discretion, the Magistrate may convict him on such plea.
If the accused refuses to plead guilty or does not plead guilty, or claims to be tried, or is not convicted despite of pleading guilty, the Magistrate must fix a date for examination of witness. The Magistrate must also supply in advance to the accused, the statement of witnesses recorded by the police during investigation. On the application of the prosecution, the Magistrate may issue summons to any of the prosecution witnesses, directing such persons to attend, or to produce any document or other thing on the date so fixed. The Magistrate must then proceed to take all such evidence as may be produced in support of the prosecution. The Magistrate may also permit the cross examination of any witness to be postponed until other witness or witnesses have been examined.
The next step is that the accused must be called upon to enter his defence and produce his evidence. If the accused submits any written statement, the Magistrate must file it with the record. If after entering his defence, the accused applies to the magistrate to issue the process for compelling the attendance of any witnesses for the purpose of examination or cross examination, or for the production of any document or other thing, the Magistrate must issue such process, unless he feels that such an application should be refused on the ground that it is made for the purpose if vexation, or for delaying or defeating the ends of justice. Before summoning any witnesses as aforesaid, the Magistrate may also require that the reasonable expenses incurred by the witness for attending the trial should be deposited in the court.
Trial of Summons Cases by Magistrate [Section. 251 Section. 255]
If the accused pleads guilty, the Magistrate must record his plea as nearly as possible in the words used by the accused himself, and may, in his discretion, convict him on such a plea. Thus, even is an accused pleads guilty, the Magistrate is not bound to convict him, if he thinks it necessary to have evidence of his guilt.
Is summons has been issued under S. 206(petty offences) and the accused desires to plead guilty to the charge without appearing before Magistrate, he must transmit to the Magistrate, by post or messenger, a letter containing his plea and also the amount of fine specified in the summons.
On receiving a plea of guilty from the accused, the Magistrate may, in his discretion, convict the accused is his absence, and sentence him to pay the fine specified in the summons. Where a pleader authorised by the accused pleads guilty on behalf of the accused, the Magistrate must record the plea as early as possible in the words of the pleader, and may, in his discretion, convict the accused on such a plea, and sentence him as stated above.
If, however, the Magistrate does not convict the accused as above, he must proceed to hear the prosecution, and take all such evidence as may be produced in support of the prosecution and also hear the accused and take all such evidence as may be produced by him in his defence.
On an application by the prosecution or the accused, the Magistrate may, is he thinks fit, issue summons to any witness, directing him to attend or to produce any document or other thing. Before summoning any such witness, the Magistrate may require that the reasonable expenses of such witness in attending the trial; be deposited in the court.
After taking all the evidence, if the Magistrate finds that accused is not guilty, he must record an order of acquittal.
Is on the other hand he finds the accused guilty, he must pass a sentence on him according to the law, unless Magistrate submits entire proceedings to the CJM on the ground that he cannot pass a sentence which is sufficiently severe in the circumstances, or if after conviction, the Magistrate orders the accused to be released on probation after admonition.
It is also specifically provided that a Magistrate may convict the accused of any offence which can be tried , which from the factsadmitted or proved, he appears to have committed, whatever may be the nature of the complaint or summons, if he is satisfied that the accused would not be prejudiced thereby. (S.255).
By Dhruvi Johari
