This article is written by AASHIKA AGGARWAL pursuing BBA-LLB (H) from AMITY UNIVERSITY, GURGAON.

INTRODUCTION

Environmental law is the law of environmental problems. Environmental law is the collection of laws, regulations, agreements and common law that governs how humans interact with their environment. The purpose of environmental law is to protect the environment and create rules for how people can use natural resources. Environmental laws not only aim to protect the environment from harm, but they also determine who can use natural resources and on what terms. Laws may regulate pollution, the use of natural resources, forest protection, mineral harvesting and animal and fish populations. Environmental law is a term used to explain regulations, statues, local, national and international legislation and treaties designed to protect the environment from the damage and to explain the legal consequences of such damage towards government or private entities or individuals.

A great deal of environmental law enforcement takes place through administrative law. The EPA might investigate a violation and bring administrative action to their own officials. Those who are found responsible for violating the rules may appeal the decision to the courts. Most violations are a civil offence, but they are also criminal penalties for serious offenders.

Environment and life are inter-related. Human depends on earth natural resources, such as air, water and land because if any of the natural resources is not there on the earth then life would not be possible on earth to survive. The world environment day is celebrated on 5^thJune every year.

Some of the provisions of environmental law in the Indian Constitution are as follows under:-

ARTICLE 21 OF INDIAN CONSTITUION says that right to life includes right to pollution free environment. This is a fundamental right which says about the right to live with human dignity. For living with human dignity, it includes right to pollution free environment.

PART IV: ARTICLE 48(A) OF INDIAN CONSTITUTION says that protection for improvement of environment and safeguarding of forest and wildlife. For protecting the improvement of environment and safeguarding the forest and wildlife so that it maintains the good balance of nature, environment and human. This article was added in the Indian Constitution in the 42^ndamendment. This article is a directive principle.

PART IV A: ARTICLE 51(A) CLAUSE(g) OF INDIAN CONSTITUTION says

that it imposes a fundamental duty on every citizen to protect and improve the natural environment. This article was added in the Indian Constitution in the 42^ndamendment. This article is a fundamental duty.

ARTICLE 253 OF INDIAN CONSTITUTION says that the parliament has the power to make laws for the country. By using the power of parliament, the parliament has enacted the environment protection act in 1986 under article 253 of the Indian Constitution.

International Terms under Environment Law

CONFERENCE: a formal gathering to discuss a broad theme.
CONVENTION: a meeting where a framework or basic guideline is prepared.

PROTOCOL: the final convention is the protocol and it is the agreement where the parties sign and accept the legal obligation. Whoever is the diplomatic country they follow the conventions in agreement type and then they sign and then they accept all the legal provisions.

Some of the conventions and protocols are as follows under:-

VIENNA CONVENTION, 1985- this convention was adopted for protection of ozone layer.
MONTREAL PROTOCOL, 1989- this convention was adopted for reduce ozone depletion.
BASEL CONVENTION, 1992- this was for trans- boundary movement of hazardous waste.
KYOTO PROTOCOL, 1997- this convention was basically for climate change.
CONVENTION ON BIOLOGICAL DIVERSITY, 1992- this convention was for sustainable use of biological resources.
NAGOYA PROTOCOL, 2014- this protocol was for fair and equitable sharing of benefits from convention on biological diversity.

The United Nations is an organisation which works on an international level and to protect the human environment, the United Nations organised a conference at Stockholm in 1972. The program was set up in GENEVA in June, 1971. This was the first conference on international protection of environment.

DAMODAR RAO V. MUNICIPAL CORPORATION, 1987

In this case, the Apex Court held that polluting the environment mounts to violation to the right to life under article 21 of the Indian Constitution. The article 21 of Constitution talks about the right to life and right to life includes right to get the pollution-free environment, so in this case, the Supreme Court said that polluting the environment is a violation to the right to life under article 21 of the Indian Constitution. This statement was med in Damodar Rao case.

SUBHASH KUMAR V. STATE OF BIHAR

In this case, the Supreme Court said that it is the right to get pollution free water and pollution-free air is a fundamental right guaranteed under article 21 of the Indian Constitution. This is a fundamental right as per the Constitution of India.

M.C. MEHTA V. KAMALNATH AND OTHERS, 2000

There is also another case of M.C MEHTA in the year 1997 and there that case talks about sustainable development but this is the case which relates to a fundamental right. In this case, the Supreme Court awarded damages not only for the restoration of ecological balance but also for the victim who has suffered for disturbance for violation of article 21 under the Indian Constitution.

SHER SINGH V. STATE OF HARYANA AND PUNJAB, 2014

In this case, the Supreme Court held that the state is under constitutional obligation to protect and improve the environment as per article 48(A) and article 51(A)(g) of Indian Constitution.

STATE OF WEST BENGAL V. SUJIT KUMAR RANA, 2004

In this case, the Supreme Court is saying that all provisions of articles 48 (A) and 51 (A)(g) should be kept in mind while interpreting any statutory provision.

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This article is written by Anushka Singh, a second-year student, pursuing BBA-LLB at Unitedworld School of Law, Karnavati University. This article aims to explain International Criminal Court and laws on global terrorism with the help of a flashback to the Rome Conference 1998.

INTRODUCTION

The International Criminal Court is head quartered at The Hague in the Netherlands. ICC stems from a treaty of Rome Statute, a United Nations treaty. This statute officially came in force on 1^st July 2002, after it was ratified by more than 60 countries. At present over 120 countries have ratified this statute. This statute has laid down the basic aspects of ICC, like its jurisdiction, roles, functioning, laws to be followed, etc.

Unlike the International Court of Justice that deals with matters between states, ICC deals with matters persecuting individuals. The jurisdiction of ICC includes crimes committed after 1^st July 2002 in the states where the Rome statute has been ratified or by people belonging to that state.

What is Terrorism and Impact of Global Terrorism?

Terrorism basically means violent and intimidating acts committed to scare the general public and make the government submit, to achieve a political agenda. They’re acts committed out of hate and spite. Terrorism can be broadly divided into-

Bio Terrorism
Cyber terrorism
Eco- terrorism
Nuclear terrorism
Political Terrorism
State Terrorism

In the world the deaths caused due to acts of terrorism are comparatively very less to other crimes. However, it is still an issue globally that provokes deep thought and concern from every individual. Let us understand in the following points why this term only brings fear and anxiety to people’s mind-

The terrorist often goes by the way of harming the public or using the general population as the means to get their demands fulfilled or to protest against the authority. This method of capturing random civilians and using them in their ploy is a set pattern noticed by all, which now makes the topic of terrorism to be surrounded by fear and insecurity.

The most crucial weapon used by terrorists is intimidation, to influence the minds of general public to gain the upper hand on the government or authority. As these acts of hate are always used to propagate a religious agenda or express dissent violently and protest, it is mostly against the government ruling the state.

These acts leave the public shaken, fearful and questioning their security. A lot of money is also spent by the government to combat terrorism and repair the damages done by these acts. Given below are the broad categories of consequences suffered by a State and its people due to terrorism-

Psychological Consequences

These consequences affect the mental health of an individual which in turn affects his entire life style and behaviour towards others.

Social Consequences

Social consequences impact the people of that state directly. These consequences impact the opinions, beliefs and attitudes.

Economic Consequences

Terrorism impacts the economy of a state in direct as well as indirect manner. The direct impact includes the damage done to property, lives lost, funds required to fight back such attacks. Whereas in-direct impact includes the decline in GDP of that state, market becoming fragile, lower FDIs, etc. all due to security issues that are birthed by these terrorist acts.

Political Consequences

The agenda or decision by the government are mostly the cause such attacks. Which is why the aftermath of such incidents may leave people divided and conflicted regarding their political stance. It may also lead to animosity between religious communities or different political party supporters.

Therefore, terrorism is nothing but a way to impose ideology or get the authority to heed to a condition by violently disrupting the peace of the country.

ICC and International Terrorism

ICC has no direct jurisdiction on acts of terrorism under the Rome Statute. This is because of the majority intention to exclude terrorism, decided by the states present in the Rome Conference 1998.

A provision on terrorism was introduced in the conference, which would have included terrorism under the major three categories of crimes the ICC deals with i.e. war crimes, genocides and crimes against humanity. The provision defined the crimes which would constitute to terrorism in 3 categories –

This category had the basic and standalone definition of terrorism
This category defined the acts under the six already existing crimes that would amount to terrorism.
This category specified that violence on persons or populations by the means of firearms, explosive, weapons and other dangerous substances will amount to terrorism.

However, this entire provision was rejected by the state parties and any mention of this provision was left to the Resolution E of the Annex to the final Act. The reason behind rejecting the terrorism provision can be explained by the points given below-

The first and the biggest obstacle was the absence of a direct, specific and universally accepted definition of what is terrorism. This was also supported by the dissatisfaction in regards to the definition proposed in the draft of the provision.
The second reason for the reluctance was that the three core crimes- war crimes, crimes against humanity, and genocide included all the crimes of great concern at that time and terrorism was not considered to be a topic of international concern at that time.
The third reason behind rejecting the inclusion was to avoid burdening the court the need for a gravity threshold.
The fourth point against the provision of terrorism was that it would put a strain in the acceptance of the entire Rome Statute globally.
The fifth argument against this provision of terrorism was that it already existed as a treaty crime under UN and there was already a system set to deal with it.
The final objection argued that as terrorism is a very sensitive term politically, and if the ICC would deal with matters of terrorism it would be put in the centre of inter-state politics. Which in turn could damage its credibility and position to act as an impartial institution.

CONCLUSION

Most of the points given above have become irrelevant with time but terrorism has still not been added as a core crime under the Rome Statute. However, an amendment on crime of aggression has been added under Article 8 of the Rome Statute on 11 June 2010. This amendment defines the crime of aggression as an act of another state, blockading ports or coastlines, bombing another state, attacking the land, sea or air forces, violating a status of forces agreement by the use of armed contrabands such as weapons, explosives etc. Other than this amendment, the Netherlands has also proposed for terrorism to be added as a prosecuted crime under the Rome Statute.

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This article is written by Bunmi Adaramola, a current LPC MSc student at the University of Law. This article presents a detailed overview of the crime and violence and the nature of the relationship which exists between them.

Introduction

Crime and Violence, as asserted by a UN joint report, are development issues which have ‘direct effects on human welfare in the short-run, and long-run effects on economic growth and social development’. Crime, as defined simply by B Felson, is ‘a violation of law, an act of deviance and rule-breaking’. He also defines violence as intentional-harm doing using physical means. From his analysis of both concepts, the article suggests that there is an occasional overlap between crime and violence, as ‘some acts of violence are not criminal or deviant, whilst some crimes do not involve violence’. This point will be unpacked more throughout the course of this article.

1. Violence and Aggression

Statistics show that violence is among the leading causes of death worldwide, and even more prevalent among people aged between 15-44 years. The World Health Organization (WHO) defines violence as ‘the use of physical force or power, threatened or actual, against oneself, another person, or against a group or community, that either result in or has a high likelihood of resulting in injury, death, psychological harm, mal-development or deprivation’. Clearly, this definition encompasses discussions on the types, nature and complete scope of what violence entails. Firstly, this definition classifies violence into three different categories: (i) self-directed violence (‘threatened…against oneself’), (ii)interpersonal violence (‘threatened…against another person’), which involves family or intimate partner violence, such as domestic abuse and (iii)collective violence (‘threatened…against a group or community’), which involves community violence such as destruction, rape, sexual assault. Secondly, this definition also puts into perspective how crime and violence interplay with each other. In dissecting this definition, it is worth putting at the back of the mind, the elements needed to constitute a crime. This definition addresses the mens rea aspect of the commission of a crime, that is the intention, where it describes violence as an act which ‘threatens’. The threat of committing violence itself may play an important role in forming the mens rea as it can be found in crimes such as assault. Similarly, the actus reus element of crime is satisfied by the definition, where it outlines the commission of violence as ‘the use of physical force or power…against’. Essentially, it can be argued from this analysis, that there is a serious and clear relationship between crime and violence, which is derived from the definition of violence provided by the WHO.

It is also important to appreciate the fact that violence can be invisible as much as it can be visible, and this invisibility of violence is equally as important as all other types. The invisible types are usually masked and less obvious when addressed from the surface, as they are ‘out of sight in homes, workplaces and even in the medical and social institutions.’ In such cases, the victims are either too young, weak or even ill to consider protecting themselves and are ‘forced by social conventions and pressures to keep silent about their experiences’. Furthermore, the nature of both visible and invisible violence may also range from physical, sexual, psychological or neglectful violence.

2. Crime, Violence& Violent Crimes

As stated previously, an overlap exists between crime and violence, which manifests itself in the concept of ‘violent crimes’. In understanding the scope of violent crimes, it is worth understanding the classification of crimes as a whole. In assessing the crime, it is important to ask whether harm was intended and is relevant to the motivation of the crime. Where harm is not intended, then the crime is a negligent and victimless one. In a case such as this, there is no overlap between violence and crime as there is no use of force, or threat to cause harm. At the other end of the spectrum, if harm was intended, it is worth asking whether the harm is an incidental consequence or is deliberately sought by the perpetrator. This essentially asks whether the perpetrator is indifferent to the harm caused. If the perpetrator is indifferent to whether the victim suffers or not, then in such case, there may be a clear overlap between violence and crime as such crimes are primarily predatory crimes, which may involve impulsiveness or thrill-seeking motivations for the harm done. In the case where the harm is valued and the harm is an incidental consequence of the crime, whether it is a violent crime will depend on the motivation and intention of the perpetrator in the commission of the crime. For instance, first-time offenders may engage in such crimes but may not be directly or intentionally engaged in aggression or violence, but the violence will only be as a result of negligence or recklessness in the commission of the crime. Felson further asserts that the major causes of violent crimes are ‘low self-control, thrill-seeking, as some people will only commit deviant acts that do not involve harm-doing’.

Overall, it is clear that in some cases, there is a distinct overlap in the relationship between crime and violence, whilst in orders, it would be difficult to prove, depending on the nature of the crime, such as in theft, fraud or drug use.

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Report by- Riddhima Bhadauria

The Supreme court, on Wednesday 30-07-2020 restored the sentence of cashiering from service imposed on an army officer for misbehaving with two women while examining them. The Bench comprising Justice L. Nageswara Rao, Justice Hemant Gupta, Justice S.Ravindra Bhat opined that LT. Col. SS Bedi had abused the fiduciary relationship between doctor and patient and this act of doctor is not condonable.

Appellant’s contention

The appellant contended that his application to file was rejected by the tribunal. He filed a criminal appeal aggrieved by the judgment of the Tribunal upholding the conviction ordered by the General Court Martial and imposition of a fine of Rs.50,000/-. The appellant was convicted for misbehaving with two women during a checkup for touching their private parts and hence he was charged under section 354 IPC 1860 for using criminal force on women with intent to outrage their modesty. Appellant was presented by learned counsel Sridhar potaraju contended that conviction of the appellant is unsustainable as the evidence on record is not proper and the He further stated that the testimony of Lt. Col. R. Sharma is also in favour of the Appellant. Also, the physical examination of both the complainants was necessary for the ailments that were being suffered by them. One was suffering from bronchial asthma and the other had a complaint of the duodenal ulcer which involves exposure of breast. He also said that forfeiting pensionary benefits is not right as contemplated in section 71(h) of army act, 1950. Therefore, the Appellant is entitled to payment of pension. Court also gave similar decisions in cases like Union of India v. Brig. P.K. Dutta (Retd.) and Union of India v. P.D. Yadav.

KEY HIGHLIGHTS

General court-martial converted the sentence from cashiering from service (section 71(d) of the army act, 1950) to a fine of Rs 50,000.
Union of India(respondent) filed criminal appeal no. 13 in 2013 aggrieved by the alteration of punishment.
The pension of the appellant cannot be forfeited as that in the absence of an order passed under section 71(h).
The pension of an army officer cashiered from service may be forfeited at the discretion of the president.
The Supreme court on 30-07-2020 restored the sentence of cashiering from service.

Respondent’s Contentions

Mr. Vikramjit Banerjee, learned Additional Solicitor General appearing for the Respondent contended that there is ample evidence on record pointing to the guilt of the appellant. He also contended that the conversion of sentence by the Tribunal was unwarranted. The Appellant had misbehaved with two patients and the expert evidence also shows that there was no necessity of the Appellant touching the private parts of the complainants. Both the complainants were suffering from a disease which involves exposure of breast but touching or squeezing it is totally unnecessary hence the appellant was rightly held guilty under section 354 of IPC, 1860.

SC Restores the Punishment of Cashiering of Service

The Supreme court was not convinced with the reasons given by tribunal for converting the sentence from cashiering to the imposition of a fine of Rs 50,000. So, it recently restored the punishment of cashiering of service by taking into account the “reprehensible conduct of the Appellant abusing a position of trust being a Doctor which is not condonable”. However the court directed the respondents to consider the entire record of service of the Appellant and his advanced age while taking a decision to initiate proceedings under the Army Pension Regulations. In case the Respondents decide not to initiate proceedings under Army Pension Regulations, the Appellant shall be entitled for all pensionary benefits.

What are the key provisions of the Army Act, 1950 discussed here?

Section 71(d) tells about the cashiering in the case of officers.
Section 71(h) tells about the forfeiture of service for the purpose of increased pay, pension or any other prescribed purpose.
Section 71(k )explains the forfeiture in the case of a person sentenced to cashiering or dismissal from the service of all arrears of pay and allowances and other public money due to him at the time of such cashiering or dismissal.

Download the Judgment hereDownload

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This article is authored by Kirti Bhushan, a student of Campus Law Centre, University of Delhi. The article’s major focus is to discuss Section 377 of the Indian Penal Code, 1860 in reference to its historical background which ultimately led to it being partially struck down in 2018.

INTRODUCTION

Section 377 of the IPC, 1860 states: “Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

Explanation: Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.”

By a simple reading of this section, one can see that this colonial law which was incorporated in chapter XVI of IPC, 1860 has certainly criminalised homosexuality as they failed to realise that the sexual orientation is natural and people do not have any control over the same. The same law was in force till 2018 when it was partially struck down by the Supreme Court of India in its historic judgment Navtej Singh Johar v. Union of India.

Journey from Prejudice to Pride: Celebrating Pride

The journey from prejudice to pride has been a lengthy one from year 1860 to 6^th September 2018 when the Supreme Court decriminalised the same sex relationships. The movement for scrapping down section 377 began nearly three decades ago i.e. during the 1990s and then subsequently the LGBTQ community made their demand vigorously for giving them the same rights as any other citizen of India as no one can regulate their sexual orientation.

It all started on August 11, 1992 when the AIDS Bhedbhav Virodhi Andolan (‘ABVA’) documented a report in which it was explained how the gays were being discriminated against and the ill-treatment they received at the hands of police authorities. It demanded the legislature to repeal the discriminatory section 377 of the IPC, 1860.

Subsequently, the ABVA gained momentum when the then Inspector-General Kiran Bedi of Tihar Jail refused to provide condoms to the prisoners as, in her opinion, it would have led to increase in homosexuality amongst prisoners. Then the ABVA filed a petition in Delhi High Court in the year 1994 to challenge the constitutionality of Section 377 which was subsequently dismissed in 2001 due to lack of support to the petition.

Then in December 2001, the NAZ foundation which was a sexual health NGO filed a public interest litigation (‘PIL’) in the Delhi High Court to challenge the constitutionality of section 377 and decriminalising homosexuality. It was dismissed as it was considered by the Court to have no cause of action and the review petition filed by the NGO later on was also dismissed. Then in February, 2006 a Special Leave Petition (‘SLP’) was filed in the Supreme Court by the Naz Foundation and the Apex Court returned it to the Delhi High Court by holding that it has an issue of public interest.

Then the Delhi High Court in July, 2009 gave a landmark decision when it gave the judgment to strike down Section 377 as it violates the fundamental rights to life, liberty and equality of the people concerned. This judgment was challenged by Suresh Kumar Koushal, a famous astrologer, in the Supreme Court.

The Supreme Court, in December 2013, overturned the Delhi High Court’s judgment stating that section 377 “does not suffer from the vice of unconstitutionality and the declaration made by the division bench of the high court is legally unsustainable.” This came as a significant blow to the hopes of the LGBTQ community.

In June 2016, Navtej Singh Johar who is an award-winning Bharatanatyam dancer, filed a writ petition in the Supreme Court challenging section 377, along with four other petitioners. In August 2017, a nine-judge bench of the Supreme Court gave the judgment where it upheld that the right to privacy is a fundamental right and further explained: “Sexual orientation is an essential attribute of privacy. Discrimination against an individual on the basis of sexual orientation is deeply offensive to the dignity and self-worth of the individual.” Thus, it strengthened the hopes of the people and the various NGOs who were protesting to decriminalise homosexuality.

The decades-long struggle culminated on 6^th September 2018 when the Supreme Court unanimously held that section 377 of the IPC, 1860 was unconstitutional and the then Chief Justice Deepak Misra described it as “irrational, indefensible and manifestly arbitrary.”

This has been a welcome step in Indian law as the time has arrived to abolish repressive colonial laws. This judgment has served to be a first step in normalizing the LGBTQ movement in India. The struggle of this community has been tiresome as they have always been discriminated against as well as faced judgments in the eyes of the society. It was indeed necessary to decriminalise homosexuality as the same has now led to the LGBTQ community to live a dignified life since the right to live with dignity is a fundamental right and all the citizens of India can exercise the same.

CONCLUSION

The section 377 of IPC, 1860 has been partially struck down i.e. to say that the consensual sexual acts (oral or anal) of heterosexual couples are still treated as unnatural and are punishable under section 377. Moreover, the personal and secular laws still provide for the marriages between heterosexual couples and not the homosexual couples. The right to adoption is also not available to homosexual couples. Thus, the judgment has led to provide some relief from criminal prosecution to the LGBTQ community yet the Civil Law needs to be amended by the Parliament to help the LGBTQ community to truly help them exercise their right to live a dignified life.

Merely a judgment will not succeed in changing the mentality of people and there is need to instil the concepts of inclusion and acceptance of diversity in people as well as to teach them not to be discriminatory because the nation is already polarized on various cultural, social or religious grounds.

As the Supreme court has rightly commented its verdict as: “This is the beginning of the end of Prejudice” and therefore, the concept of people being in same-sex relationships should be normalized and the LGBTQ community should be treated at par with other people and we have to normalize same-sex couples and marriages to truly “celebrate the pride.”

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This article is authored by Kirti Bhushan, a student of Campus Law Centre, University of Delhi. The article explains the phase of a criminal trial in India. There are various types of trials carried on under the Criminal Procedure Code, 1973 and the article focuses to explain all those briefly.

INTRODUCTION

The trial stage commences when the pre-trial procedure i.e. First Information Report and investigation has been completed. The Criminal Procedure Code, 1973 (hereinafter referred to as “CrPC, 1973”), Indian Penal Code, 1860 and the Indian Evidence Act, 1872 govern the procedure, punishment as well as the facts or evidence of a particular case respectively. The procedure regarding a criminal trial and the various forms of trial are prescribed in the CrPC, 1973. According to CrPC, 1973, there are three kinds of trial:

Trial in Warrant cases.
Trial in Summons cases.
Summary trials.

A brief account regarding the procedure of all these trials is explained below.

Warrant Cases

According to section 2 (x) of CrPC, 1973, “warrant-case” means a case relating to an offence punishable with death, imprisonment for life or imprisonment for a term exceeding two years.” Thus, any offence whose punishment exceeds more than two years up to death sentence are called warrant cases and their procedural formalities are explained in sections 238-250 of chapter IX under the CrPC, 1973.

Generally, a warrant case is initiated either on a First Information Report i.e. F.I.R. filed in the police station or a complaint made before a Magistrate. If the Magistrate is of the opinion that he has the jurisdiction to try the case then he can proceed with the same under sections 238-250 else he can commit the case to the Sessions Court if he does not have the jurisdiction to try the same. Then the procedure is as follows:

The Magistrate has to satisfy himself that the provisions of fair trial mentioned under section 207 of the CrPC, 1973 are complied with and the object of this section 238 of the CrPC, 1973 is to apprise the accused regarding the charges framed against him so that he can prepare to cross-examine the witnesses against him as well as a case to defend himself.
Then the Magistrate under section 239 of the CrPC, 1973 may either discharge the accused if, after considering all the material on record as well as giving an opportunity of being heard to prosecution and the accused, he is of the opinion that the case is groundless and he has to record his reasons for the same or he can frame a charge against the accused if he considers that the material available on record prima facie discloses a case against the accused.
If the accused pleads guilty under section 241 of the CrPC, 1973 then he can be convicted by the Magistrate if he has the jurisdiction to do so or else by the Sessions Court under their discretion. If the accused does not plead guilty then the Magistrate can fix a date for examination of witnesses under section 242 of CrPC, 1973.
Then the Magistrate will fix a date for cross-examination under section 242 (1) of CrPC, 1973 but by virtue of the Criminal Procedure Code Amendment Act, 2009 there is a proviso added specifying Magistrate’s duty to supply a copy of statements of witnesses recorded during the police investigation as the objective of such amendment was clearly laid down in the Supreme Court judgment viz. Superintendent v. Satyen Bhowmick And Ors:

“an accused was undoubtedly entitled to have copies of the statements of witnesses recorded by the police. This is a very valuable right because without having the statements recorded by the police in his possession, it would be difficult, if not impossible, for an accused to defend himself effectively. It is well settled that fouler the crime the higher should be the proof. If an accused is not supplied either the statements recorded by the police or the statement of witnesses recorded at the inquiry or the trial, how can he possibly defend himself and instruct his lawyer to cross-examine the witnesses successfully and effectively so as to disprove the prosecution case.”

The Magistrate may summon any of the witnesses or direct them to produce any documents etc. to be produced on the fixed date and the same shall be attested as prosecution evidence under section 242 (3) of CrPC, 1973. Once the prosecution evidence has been recorded then the oral arguments of the prosecution and examination of witnesses under section 313 (1) (b) of CrPC, 1973 follow. The prosecution in a criminal trial presents its case first and adduces all the evidence on record to prove that the accused is guilty beyond reasonable doubt.
Then under section 313 of the CrPC, 1973 the accused gets an opportunity to be heard and to explain the facts and circumstances of the case. And then comes the stage where the defense gives evidence whereby the defense cross-examines the prosecution witnesses and the defense can also give both oral and documentary evidence.
The parties before closing their evidence have to submit their arguments. Thereafter, the trial ends in either the acquittal or conviction of the accused after the Magistrate records his reason for the same and the judgment is given.

Summons Cases

According to section 2 (w) of the CrPC, 1973: “‘summons- case’ means a case relating to an offence, and not being a warrant- case.” Thus, any case in which the term of imprisonment is less than two years then its trial will be as per the summons trial procedure. These are less serious in nature and thus, their trial differs from that of the warrant cases. Their procedure is laid down under sections 251- 259 under Chapter XX of the CrPC, 1973. A summons case can be transformed into a warrant case if the Magistrate deems it fit to do so. The accused does not have to be present in the Court during such trial and no formal i.e. written charges are required to proceed with the trial. Oral charges are sufficient.

The case can be tried once it is initiated through a F.I.R. Then the procedure is as follows:

The Magistrate gives the accused the substance of the accusations made along with the other particulars of the offence and he will ask the accused if he pleads guilty or not.
In case the accused pleads guilty, he will be convicted after recording his plea under section 252 of the CrPC, 1973. In case the accused pleads guilty but is absent in a petty case, then he has to send Rs. 1000 along with a letter pleading guilty to the Magistrate’s Court and the amount will be adjusted towards the fine charged to him, if any, by the Magistrate.
In case the accused does not plead guilty, then the Magistrate shall hear the complainant and his witnesses and only then give a decision. The accused can also examine the witnesses and the Magistrate has no discretion regarding refusal to the accused’s application to examine witnesses and he is duty bound to summon such witnesses and give decision only after such examination of witnesses is done by both complainant and accused.
Then the Magistrate may pronounce his judgment regarding all such evidence and witnesses on record. The parties can then appeal against such a decision.

SUMMARY TRIALS:

Sections 261-265 under chapter XXI of the CrPC, 1973 provides the procedure of summary trials. The objective of summary trials is the same as that of Summons trial procedure i.e. to save the time of the Court as well as parties in less serious matters. Such matters which are generally settled under one or two hearings come under the purview of Summary Trials. The accused can be sentenced to imprisonment for up to three months only. Section 260 lists the various offences which can be tried summarily. The Magistrate should use his discretion cautiously while deciding to try any case summarily and he should avoid doing it when the facts of the circumstances are complex. In section 262(1) of the CrPC, 1973 the procedure of summons case is to be followed except when a longer sentence than three months is considered fit by the Magistrate to meet the ends of the justice. Then the Magistrate shall make a record of the proceedings as specified under section 263 of the CrPC, 1973. Section 264 of the CrPC, 1973 provides that “In every case tried summarily in which the accused does not plead guilty, the Magistrate shall record the substance of the evidence and a judgment containing a brief statement of the reasons for the finding.” and section 265 of the CrPC, 1973 specifies the language of record and judgment to be followed.

CONCLUSION

The purpose of division between warrant, summons and summary trials is to distinguish more serious crimes from lesser serious ones. The trial procedure in India is a lengthy one so this division of trial procedures is appropriate to follow. The division is mostly on the basis of punishments prescribed for each type and thus it speeds up the procedure for crimes which are less heinous in nature and thus, it saves the valuable time of the Courts, as well as the parties grievances, are addressed in a timely manner. Sometimes, when any party does not comply with any procedure then it can have lethal effects on that party’s case and sometimes if it is a mere irregularity, then it can be regulated by the permission of the Court.

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This article is written by Shambhavi Shree, a student of KIIT School of Law, Bhubaneswar (4th year).

INTRODUCTION

Molestation includes involving a woman or child in any sexual activity without their proper consent which violates our Indian law system. It includes sexual assault, child sexual abuse, sexual harassment, sexual abuse, stalking, elder abuse. Molestation may lead to depression, phobias, fear, nightmares, anger, pain, anxiety, injury, stress, personality disorder, lack of sleep, suicide. India has the world’s second-largest child population, therefore it is found mostly to the younger generation when a child is inappropriately touched, forced to perform any kind of sex including, oral, vaginal, or anal sexual activity, pornography, or any sexual conduct which is harmful to the emotional and mental health of the child. According to the recent amendment, anyone having consensual sex with a below eighteen years of age child can be punished with a rape charge. It is often termed as child sexual abuse when the force is of a shorter period it is called sexual assault. Types of child sexual abuse include:

1. Sexual assault: In this case, an adult uses a minor child without the consent for their sexual interest.
2. Sexual exploitation: Exploitation of a minor child for some personal benefit, sexual gratification, financial gain, or advantage. It includes recording and viewing another person’s video, audio, or images of sexual activity and distributing them among others.
3. Sexual grooming: It involves grooming up of a child for sexual abuse by convincing and building a trust relationship.

Indian Laws for Molestation

1. The Protection of Children from Sexual Offences (POCSO) Act, 2012
2. Section 294, 350, 351, 354, 375, 376, 377, 509 of Indian Penal Code, 1860
3. Juvenile Justice (Care and Protection of Children) Act, 2015
4. Protection of Child Rights Act, 2005
5. Section 357C of Criminal Procedural Code, 1973
6. Convention on the Rights of the Child, 1992

Protection of Children from Sexual Offences (POCSO) Act, 2012

According to this Act, child marriage is prohibited and considered illegal. POCSO Act is gender-neutral and protects all children under the age of 18 years. The main objective of this act is to provide protection from sexual assault, sexual harassment, trafficking of children, and pornography. Compensation is given to the child victims for their medical treatment and rehabilitation. The medical treatment of the female victim is to be done by a female medical practitioner stated under section 27(2) of the POCSO Act, 2012. To provide speedy justice special courts and judges are appointed by this act, and a maximum of 1 year provided for the completion of the case.

Barriers

1. Delayed reporting of allegations
2. The untrained and unqualified medical practitioner
3. Cases take a long time in Indian courts
4. Lack of trust in the judicial system
5. Evidence collection and preservation

Case Analysis

• Bhojibhai Hirfibhai V. State of Gujarat 1983 A 1983 S.C. 753
Supreme Court ordered that not to act in a serious case of sexual assault leads to the insult of our Indian legal system. Whenever there is a case of rape or sexual molestation, there should be no doubt, disbelief, or suspicion.
• Kammanahalli molestation case, 2017
This incident was captured on a CCTV footage were six men in a motorbike was following women inside a dimly lit alley. One of the six started groping and robbing when the girl was returning home with her friend. Police arrested four of them and FIR was filed under section 341, 354A, 354B of the Indian Penal Code, 1860.
• The State of Maharashtra and Another V. Madhukar Narayan Mardikar (1991)
In this case, the Supreme Court held that a woman has equal right for the protection of the law, and it is not justifiable for her being thrown out without the trial.
• Rao Harnarain Singh Sheo Ji Singh V. The State AIR 1958 Punj 123
Rao Harnarain Singh called his tenant, Kalu Ram, and asked him to send his wife Mrs. Surti aged 19 years, for the sexual pleasure of himself and his guests. Due to the pressure by her husband she was forced to agree. The defense stated before the court that the girl consented by willingly agreeing to engage in sexual activity. The court stated that the submission of the body under the influence of fear is not consent. There is a difference between consent and submission, every consent involves a submission. A woman is said to consent only when she freely and voluntarily participates in the sexual act and is in an unconstrained possession of her mental, and physical power to act in a manner she wanted.

Punishment for Molestation

If a person knowing about the abuse fails to admit then he shall be liable for the imprisonment of 6 months or with fine or both. In the case of assault or rape, the treatment should be done free of cost, and if a medical practitioner or hospital staff is involved in rape, then he shall be liable for imprisonment of a minimum period of 7 years. The punishment for molestation ranges from one year to a maximum of 7 years or with fine or both. Aggravated penetrative sexual assault involves punishment up to 10 years to life and fine.

Conclusion

In India, many women and children are unaware of the laws, and regulations performed to protect them from illegal practices. If in case police denied registering the case of molestation than one can file a separate complaint against the magistrate under section 200 reading with Section 156(3) of the Criminal Procedural Code, 1973. Section 12(c) of the Legal Services Authorities Act, 1987, states that any child who has filed a case is entitled to get legal aid. The central, or state governments are requested to consider adopting suitable measures including legislation to ensure the well-being of the society at large. Currently, more than 150 organizations in India are working for the empowerment, justice, safety, gender equality, and welfare of women

REFERENCE

https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4557243/
http://wbsc.gov.in/ngo/table.htm
https://heinonline.org/HOL/Page?collection=journals&handle=hein.journals/solestu4&id=263&men_tab=srchresults
http://www.legalservicesindia.com/forum/topic91-maharashtra-v-madhukar-narayan-mardikar-merely-because-a-woman-is-of-easy-virtue-her-evidence-cannot-be-thrown-overboard.html
https://www.newindianexpress.com/states/karnataka/2017/jan/05/4-arrested-in-kammanahalli-case-all-are-neighborhood-boys-say-cops-1556454.html
https://www.rainn.org/types-sexual-violence
https://www.ohchr.org/en/professionalinterest/pages/crc.aspx

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