Introduction

Criminal procedural law, in general, kick starts with the registration of a First Information Report (FIR) by the complainant, with the police having jurisdiction over the place of the offence. As opposed to the civil procedure wherein there is no involvement of this institution of police, in criminal law jurisprudence, they do not just have one of the roles in this criminal procedure but also, therefore, form the starting point in the entire criminal procedure with the registration of FIR, extending further to the most vital aspect in this procedure, viz., the Investigation stage. Therefore, registration of FIR and conducting the wholesome process of investigation, which includes inter-alia, and the adducing of evidence to support the prosecution case, are the twin purposes of police in the entire criminal law domain.

The Code of Criminal Procedure 1973 deals in great detail with the entire procedural law, wrt criminal cases, in which Chapter XII is dedicated to the stage of investigation and the rules governing it, including the registration of FIR. To again reiterate, registration of a complaint or any other information regarding the commission of an offence, given to the police officer in charge of the police station, forms the basis for initiation of the other procedural requirements under CrPC. In cases of cognizable offences, in which police have the power to carry on an investigation without any order from the Magistrate, the complaint must be reduced to writing into a formal document known as the First Information Report (FIR). Even in non-cognizable offences cases, information must be entered in a station diary or any other written format. Sections 154 and 155 of CrPC, respectively, deal with both these cases. Coupled with these statutory provisions, the honourable Supreme Court, in the landmark case of Lalita Kumari v. Government of UP, reiterated that police officers must and should register FIR upon receiving information regarding the commission of a cognizable offence¹. At the same time, CrPC does not leave the informant of the complaint remediless where police refuse to register the FIR to take the complaint. Section 154(3) authorizes the aggrieved informant to directly send the information to the Superintendent of Police concerned, who may then direct his subordinates to investigate or carry the same himself. In a more extreme circumstance wherein the complaint is still not acknowledged by either the SHO or the SP, a final remedy is conferred u/s 156(3) CrPC to directly approach the Judicial Magistrate empowered to take cognizance of the offence stated, u/s 190 CrPC, pleading for ordering an investigation.

Guidelines for exercising power to order u/s 156(3)

The investigation is that stage of the criminal procedure that exclusively involves how police officers must adduce the evidence and build up the prosecution case. This investigation function is therefore considered the most crucial duty of the police, apart from the general duties of maintaining law and order. This is why the honourable courts have reiterated over and again that investigation, especially in cognizable offences, is exclusively reserved for the investigating agency (viz., generally the police), whose powers are unfettered so long as the investigating officer exercises his investigating powers within the provisions of the law and the legal bounds². And also, the Judiciary should not interfere with the police in matters which are within their province and into which the law imposes upon them the duty of enquiry³, observing further that the field of investigation is exclusively reserved for the executive through the police dept⁴. With this set of guidelines running opposite to 156(3) on the face of it, since the Magistrate here is ordering police to investigate, courts have evolved further guidelines to maintain a balanced approach, conferring additional duties upon the courts.

Duties of the Magistrate before ordering u/s 156(3)

To primarily begin on the aspect in which circumstances and facts that the Magistrate can exercise powers under this section, the courts have dealt in great detail, on a circumstantial level, so that the courts do not use this power in an unfettered manner. In the landmark case of Priyanka Srivastava v. State of UP, the honourable Supreme Court has emphasized the need for exercising due diligence and vigilance while passing an order directing investigation u/s 156(3). The apex court held that no direction should be issued by the magistrate u/s 156(3) without the application of judicial mind, as opposed to a routine passage of directions⁵. The Magistrate needs to be vigilant with respect to the nature of allegations to identify whether the petition was motivated and had been maliciously instituted with an ulterior motive⁶. In the absence of such due diligence, the order is liable to be quashed u/s 482 CrPC⁷. A further duty is conferred on the Magistrate to seek an affidavit from the complainant, on oath compulsorily, to verify the truth and also verify the veracity of the allegations to avoid the harassment faced by the opposite party⁸ and to ensure fair investigation⁹.

When can the power u/s 156(3) be exercised?

As discussed in the introduction to this article, it is primarily the officer in charge of the police station (SHO) who registers the FIR u/s 154(1). Upon SHO denying to take the complaint is when the second remedy to approach the Superintendent of Police (SP) chips in, u/s 154(3). It is the final remedy under this pertinent section 156(3) that the complainant can approach the Magistrate. This reading of the sections clearly, but not explicitly, shows a hierarchy of the complainant’s rights. To remove this tussle, the honourable Supreme Court in Sakiri Vasu vs. State of UP clearly lays down this implied hierarchy within CrPC, in which a complainant can exercise his power to register an FIR. The apex court further explains that even after seeking remedy u/s 156(3), one cannot directly approach the High Court u/s 482 but has another hierarchical remedy to file a criminal complaint u/s 200 CrPC¹⁰. Therefore, in a couple of recent cases before the high courts, observations were made stating that if magistrates start accepting petitions u/s 156(3) directly, without following the hierarchy mentioned implicitly under CrPC, High courts would be flooded and will not be able to do other work¹¹.

Restrictions on Magistrate’s power

With the increasing misuse of the powers conferred u/s 156(3) by complaints, the courts have placed well-structured restrictions on the magistrates, over and above the already-mentioned guidelines, above. On the most fundamental level, the territorial jurisdiction limitation on the Magistrate continues, as is the case with other general provisions under CrPC. Furthermore, this magisterial power cannot be stretched beyond directing an SHO to conduct the investigation, including ordering any superior officer¹², or any other investigative agency such as the CBI/CID¹³. Apart from this, more straightforwardly, the Gujarat High, in order to curtail the growing trend of directly approaching magistrates u/s 156(3), opined that magistrates should focus on one fundamental aspect, i.e., allowing the application only in cases where the assistance of the police is essential that the complainant on his own may not be in a position to collect and produce the evidence in support of the accusations¹⁴.

Tussle between taking cognizance u/s 200, and order passed u/s 156(3)

Section 190(1) of CrPC deals with the fundamental yet crucial concept of taking cognizance of an offence by a Magistrate, which forms the first step in initiating criminal proceedings before the supervision of the court of law. The Magistrate must apply his judicial mind and decide whether there is a prima facie case that can be made out with the complaint, either when a police officer submits a preliminary report u/s 157 CrPC to take cognizance or when an aggrieved party directly files a private complaint before the Magistrate, or when the court itself takes the cognizance Suo-moto. The second category of taking cognizance is essential at this moment, i.e., through a private complaint made with the Magistrate by the victim. Even upon taking cognizance u/s 190(1), a magistrate can order police to investigate further through the concept of postponement of issuance of process u/s 202(1) CrPC. Such an investigation, however, is of a limited nature, aiming only to help the Magistrate decide whether there is sufficient ground for him to proceed further. This concept of private complaint and petition filed u/s 156(3) CrPC, therefore, resembles and tends to overlap. This is especially so because, as per the judicial precedents discussed above, wherein the courts have obliged magistrates to apply their judicial minds and to take affidavits from the complaint before passing an order u/s 156(3), all of which is statutorily made mandatory for taking cognizance u/s 190. To settle this difference between the two provisions, the honourable Supreme Court in Srinivas Gundluri v. Sepco Electric Power Construction Corporation clarified that u/s 156(3), Magistrate applies his judicial mind to deciding whether or not there is sufficient ground for proceeding, which is actually required u/s 202, but whether or not to direct the police for investigation. Only upon investigation and submission of the final report does the Magistrate decides to cognizance or not¹⁵.

Is a revision to order u/s 156(3) maintainable

Every conclusion arrived at by a magistrate during the hearing of a matter is called general as a court order which becomes legally binding on the parties against whom it was issued or decided. This order follows so much rigour that any non-compliance with the said order attracts the contempt of court provision, punishable u/s 12 of the Contempt of Court Act, 1971 and u/s 166A of IPC (public servant disobeying direction under law). With this in place, the only remedy for the party against whom an order has been passed is to file a revision petition before a higher court u/s 397 CrPC. While Sessions and Additional Sessions Judges exercise revision powers u/s 399 and 400, High Court exercises this power u/s 401 CrPC. With the inclusion of these sections, it might sound to a reader that it is pretty straightforward to deal with the revision of an order u/s 156(3), like any other order passed by a criminal court in general. However, an order under 156(3) is largely different from other orders due to the stage at which it is issued and based on the nature of the order in the criminal procedural law. An order directing the police to investigate u/s 156(3), as mentioned in the preceding section of this article, is only issued at the pre-cognizance stage¹⁶, thereby not examining the case on the merits of the claim. Therefore, the machinery provided under Chapter XV of CrPC, which includes the issuance or postponement of the issuance of process, is not set into motion by the Magistrate. In such a circumstance, no order of the Magistrate can be revised u/s 397 r/w Section 401 CrPC. What is therefore revisable is only the correctness and legality of any finding, sentence, or order, recorded or passed¹⁷. On similar lines, the Allahabad High Court held that in this pre-cognizance stage, neither the complainant nor the accused are brought on record to the court, thereby rendering them devoid of any locus standi to challenge that order. Usually, an accused is conferred with the right to raise his defence when the Magistrate proceeds to take cognizance and cannot intervene or raise his defence unless a summons is issued. This, therefore, renders an order u/s 156(3) to be interlocutory, thus not subject to revision as per section 397(2) CrPC¹⁸.

In contrast, the Bombay High Court has held that after ordering u/s 156(3), nothing is pending before the Magistrate after such order is made, thus rendering it a final order and not interlocutory¹⁹. Therefore, such an order is revisable under the revisional powers of Sessions and the High Court. This view was also reiterated by the Delhi High Court in Nishu Wadhwa v. Siddharth Wadhwa case, conferring order u/s 156(3) a final order status²⁰.

Keeping both these points of view aside, another approach can also be witnessed from the analysis made by the Chhattisgarh High Court, wherein a common question of procedural law arose as to whether a Sessions court can exercise a revision power against an order made by the Magistrate ordering the registration of FIR and further investigation. The court, in this case, held that if the sessions court is allowed to exercise its revisional powers u/s 399, it will result in the nature of quashing the FIR, which only the High Court has, u/s 482 CrPC²¹. Therefore, the high court set aside the revision order made by the sessions court, also holding that order u/s 156(3) is an interlocutory order, rendering it alien to the remedy of a criminal revision.

Conclusion

The above discussion on this one sub-section viz., also a simple, one-lined phrase, shows how nuanced and technical the criminal procedural law is. Even to the present day, there still exists a need for landmark precedent to be delivered in this issue of revision of 156(3) order, taking into note all the contrasting points of view mentioned above. Recent times have also witnessed the growing trend of police-ruling party nexus, rendering opponents of the ruling party in a vindictive state. The very fact of approaching Magistrate u/s 156(3) is because of the reason of getting aggrieved by the non-compliant behaviour of the police department. This implies that there is a collusion between the accused and the concerned police officials, rendering the complainant in a helpless state. So, when the aggrieved complaint moves before the Magistrate to order an investigation, this might not give an unbiased, fair, transparent, and legal outcome, which therefore requires a separate pleading by the complaint’s counsel for investigation by another independent investigative agency such as CID, CBI or by any other Special Investigation Team (SIT). Such pleadings have become rampant in recent times, raising further questions on the independence of police departments and the increasing powers conferred on the Judiciary in regulating the executive affair of investigation. Therefore, the author wishes to conclude that the discussion around this concept is not just restricted to CrPC but largely involves the other pressing concerns in criminal law jurisprudence.

References

1. Lalita Kumari v. Govt. of UP, AIR 2012 SC 1515.
2. P. Chidambaram v. Directorate of Enforcement, 2019(9) SCC 24.
3. King Emperor v. Khwaja Nazir Ahmad AIR 1944 PC 18;
4. Abhinandan Jha and others v. Dinesh Mishra AIR 1968 SC 117; State of Bihar and another v. JAC Saldanha and others (1980) 1 SCC 554.
5. Priyanka Srivastava & Anr v. State Of UP & Ors, (2015) 6 SCC 287.
6. KL Prabakar v. The State and another, 2022 LiveLaw (Mad) 336.
7. M. Shyama Sundar Naidu v. State of Andhra Pradesh, 2022 LiveLaw (AP) 78
8. Babu Venkatesh vs. State of Karnataka, 2022 SCC OnLine SC 200.
9. Madhav Singh v. State of UP and Another, 2022 LiveLaw (AB) 94.
10. Sakiri Vasu Vs. State of UP and others (2008) 2 SCC 409.
11. Saurabh Tiwari v. State Of UP, 2022 LiveLaw (AB) 216; Kameshbhai Niranjanbhai Sopariwala v. State of Gujarat, R/SCR.A/12607/2021.
12. State of Maharashtra v. Ibrahim A. Patel, 2008 CriLJ 1496.
13. Central Bureau of Investigation v. State of Rajasthan and Anr., (2001) 3 SCC 333.
14. Arvindbhai Ravjibhai Patel Vs. Dhirubhai Sambhubhai, 1998 (1) Crimes 351.
15. Srinivas Gundluri v. Sepco Electric Power Construction Corporation (2010) 3 SCC (Cri) 652).
16. Tula Ram & Ors v. Kishore Singh, 1977 AIR 2401.
17. Devarapalli Lakshminarayana Reddy v. V. Narayana Reddy, (1976) 3 SCC 252.
18. Father Thomas v. State of UP and another, 2011(1) ADJ 333.
19. Avinash Trimbakrao Dhondage v. State of Maharashtra 2016-ALL MR. (Cri)-985.
20. Nishu Wadhwa vs. Sidharth Wadhwa: 2017 SCC Online Del 6444.
21. Amarnath Agrawal v. Jai Singh Agrawal, 2015 SCC OnLine Chh 14.

This article is written by Mokshith Venkata Shiva Bhyri, a 2nd-Year Law Student (BA., LLB [Hons) student from the National Academy of Legal Studies and Applied Research (NALSAR), Hyderabad.

INTRODUCTION

Consent is a nuanced concept, especially when viewed in the context of adolescents, and when the question arises: at what age can one be entirely in the hold of their faculties to be capable of consenting to sexual relations? According to Explanation 2 of Section 375, Indian Penal Code, consent regarding sexual relations has been defined as “an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates a willingness to participate in the specific sexual act.” While the Penal Code only talks about consent in the context of women, the Protection of Children from Sexual Offences Act, 2012 (POCSO) defines a child as any person who is under the age of 18, whether female, male, transgender, or non-binary. Every country has a prescribed age of consent, under which a person cannot be legally said to be capable of giving their consent, even if they engage in sexual relations through their own choice.

The age of consent in India is currently set at 18. While the IPC earlier prescribed it to be 16, POCSO set the age at 18, creating a discrepancy. However, the Criminal Law (Amendment) Act of 2013 increased the age under Section 375 from 16 to 18. Therefore, any person under the age of 18 is legally incapable of giving their consent, and any sexual relations they enter into shall be unlawful. Two adolescents under the age of 18 can both be held liable for statutory rape if they engage in sexual intercourse, and if an older person engages in sexual activity with an underage person, it shall be considered statutory rape, even if the two are in a mutual, consenting relationship. Such provisions, while intended to protect children from being exploited, are often misused to prosecute young adolescents who are in consenting relationships.

Therefore, many countries all over the world have introduced certain exceptions to the age of consent, one of them being the close-in-age exemption, or the Romeo and Juliet laws. The exemption derives its name from the infamous tale of Romeo and Juliet, teenagers in love, aged 17 and 14 respectively, an occurrence which in today’s day and time would be a crime in several countries. The close-in-age exemption allows for the legal sustenance of a consenting relationship between two people, where either both of them might be underage, or where one might be underage and the other above it, to an extent of a prescribed number of years, and protects adolescents from the grave consequences of being labelled as a sex offender. For example, in Sweden, the age of consent is 15, or 18 if there exists a fiduciary relationship between the potential offender and the underage person. However, they allow for a close-in-age exemption, where a person who makes sexual contact with an underage person is exempted from being prosecuted if they are no more than 3 years older than the underage person.

THE ROMEO-JULIET CLAUSE AND INDIA

India does not currently have a close-in-age exemption, which means any sexual relationship between two underage people, or that between an older partner and an underage person shall be considered to be statutory rape. This means that effectively all adolescent relationships are criminalized, whether consensual or not. Normal developmental processes such as exploring romantic relationships or one’s sexuality are deemed unlawful, not to mention the misuse of laws designed to prevent sexual violence by disgruntled parents who disapprove of their child’s relationship. In India, relationships are governed largely by systems of caste, religion, and one’s social standing. Families play a significant role even in adult relationships, let alone those of adolescents, which are largely considered taboo and dishonour.

Therefore, laws such as POCSO are extensively used by families to exercise increased control over who their children end up with. It is not uncommon for parents to file rape charges against boys from a different caste or religion that their daughters elope with consensually. Without a close-in-age exemption, these boys are prosecuted under POCSO despite the girls refusing to testify against them. Families that have no qualms about marrying their underage daughters to older men readily seek to use the absence of a close-in-age exemption to their advantage only when the relationship does not suit their image. A staggering amount of cases filed under POCSO and other acts are cases of romantic relationships reported by families. A study conducted by the National Law School of India University’s (NLSIU) Centre for Child and the Law showed that cases revolving around romantic relationships accounted for around 21.58% in Delhi, 21.21% in Andhra Pradesh, 20.52% in Maharashtra, 15.69% in Assam, and 5.45% in Karnataka.

Certain studies were conducted, whereby the district court cases filed under POCSO in three different cities were examined: Delhi, Mumbai and Lucknow. About 18-54% of all such rape cases accounted for cases of consenting sexual relationships reported by parents of adolescent girls. Another study conducted by The Hindu stated that approximately 30% of all sexual assault cases in Delhi, and 23% of cases in Mumbai, were just consensual relations reported as rape. NLSIU’s Centre for Child and the Law conducted another study from 2013-15, diving into trial court cases filed under POCSO in Delhi. It showed that around 28% of all cases concerned adolescents, and out of those, 90% resulted in acquittal because the girl refused to testify against her partner. In 19% of the total cases, the adolescents were already married after effecting a compromise, and 10% of the girls stated that they were in a consensual relationship with their boyfriend and were not raped at all.

If these studies are to be believed, then this is a gross violation of the institution of justice. Such arbitrary reporting of consensual relationships between two adolescents as rape takes away resources from people who are true victims of sexual violence and require urgent help. It further casts skepticism on valid claims of survivors. The Madras High Court, in 2019, stated that the majority of the cases registered under POCSO were elopement cases because of which actual cases of minor rape victims were often ignored. Further, in most cases, only the boys were prosecuted, nullifying the gender-neutral character of POCSO. In this case, the trial court sentenced the boy to 10 years of rigorous imprisonment and a Rs. 3000 fine, even though the girl refused to testify against him. The High Court, however, recognized that there was insufficient evidence and acquitted the boy.

The Madras High Court, in the abovementioned case, also suggested that the definition of a “child” as given in POCSO must be changed to someone who is under the age of 16 instead of 18 and that close-in-age exemption must be introduced in India to prevent the misuse of protective legislation. The close-in-age exemption was also supported by the National Commission for the Protection of Child Rights (NCPCR) which suggested that it must include (a) a consensual non-penetrative sexual act between two children above the age of 12 years sharing the same age or two years of age gap difference and (b) consensual penetrative sexual acts between children above 14 years who are of the same age or sharing three years of an age gap. These suggestions have not been taken into account as of yet. However, the lack of a close-in-age exemption does not necessarily prevent what it seeks. Adolescents still pursue relationships with each other, except they now face the danger of being prosecuted. The National Family Health Survey – 4 (2015-16) showcased that 11% of girls had had their first sexual encounter before turning 15, and 39% before they turned 18.

Further, the criminalization of adolescent sexual relations, on top of the societal stigma, only contributes to the lack of sexual health awareness and the inaccessibility of reproductive health resources to young women, thereby perpetuating outdated systems like patriarchy and misogyny. According to POCSO, any private citizen, including a doctor, teachers or parents, are mandated to report any sexual activity among teenagers. Teenagers who are sexually active and require emergency medical resources, such as contraceptives, safe abortion, or treatment of sexually transmitted diseases, cannot seek help without risking prosecution. Young adolescents are forced to choose between going to prison, refusing to exercise their reproductive rights or seeking help from unhygienic, unsafe and unreliable sources.

CONCLUSION

Laws such as POCSO are crucial to fight sexual violence against children. However, in the absence of a close-in-age exemption, one can’t help but feel it greatly diminishes any autonomy that adolescents exercise over their sexuality. The Act blankets all adolescent sexual activity, whether consensual or not, under the ominous banner of statutory rape. While it does not stop adolescents from engaging in sexual activity, it does impose a massive risk on them, which they might sometimes have to pay with prison time. Most importantly, it comes at the cost of compromising one’s sexual and reproductive health, as seeking professional help is not an option. Further, the arbitrary filing of cases under POCSO, which are in reality just instances of two consenting adolescents, takes away resources from those who are endangered.

If a close-in-age exemption were to be introduced, it would enable adolescents to access timely and safe healthcare, and the legal resources would be able to prioritize those in need. The institution, which is comfortably perpetuating ancient systemic problems such as patriarchy, caste and gender discrimination in the name of law, needs to be reviewed and revised. The stigma around adolescent sexuality must be removed and seen for what it is: just another step towards the development of a well-adjusted human being. Innocent adolescents must be allowed to enforce their rights and permitted a degree of control over their bodies and what they choose to do with them. The question must be asked whether the ultimate goal behind these legislations is truly being realized. If the answer casts even a shadow of a doubt, the legislation must be adapted to serve the interests of those who seek its aid.

ENDNOTES

1. Indian Penal Code, No. 45, Acts of Parliament, 1860
2. Protection of Children from Sexual Offences Act, No. 32, Acts of Parliament, 2012 (India)
3. The Criminal Law (Amendment) Act, No. 13, Acts of Parliament, 2013 (India)
4. Veenashree Anchan et al., POCSO Act, 2012: Consensual Sex as a Matter of Tug of War Between Developmental Need and Legal Obligation for the Adolescents in India, Volume 43(2), Indian J Psychol Med, 158, 160 (2021)
5. Amitra Pitre & Laksmi Lingam, Age of Consent: Challenges and Contradictions of Sexual Violence Laws in India, Volume 29(2), SRHM, 1, 7 (2021)

This article is written by Aanya Sharma, currently pursuing law at Campus Law Centre, Faculty of Law, University of Delhi.

“Time is what you lack in any study. Evidence disappears one hour at a time. People and the environment can damage crime scenes. Things are shuffled, relocated, changed, and smeared. Organisms decay. Contaminants and dust are blown by the wind. Memories deteriorate with time. You go further from the problem as you get away from the problem.” (Maureen Johnson)

The aforementioned passage, which is taken from Maureen Johnson’s book “really devious,” may help explain why technological development in the area of criminal investigation is essential. It can assist in situations where a case cannot be resolved for a long time due to a lack of evidence, as well as in accurately and quickly resolving criminal cases. All you need is a promising lead. In this article, we’ll discuss how criminology and the criminal justice system might benefit from scientific development to better answer investigative inquiries. This field is referred to as “forensic criminology.”

INTRODUCTION 

Consider a scene of a crime. Blood on the floor, stuff scattering, and a dead body lying there. A person has been charged with the offense. He also disputes that. Now, several inquiries come up at this point. What might have caused the accused to kill the victim? How did he kill him? Is there any proof that the accused committed the crime? What was his mental state and what happened? At this point, criminology begins to play a role in determining the specifics and causes of the crime. On the other hand, science assists in drawing a connection between the facts and the evidence, delivering accurate, trustworthy, and objective information. Consequently, forensics and criminology are integral to criminal justice.

It is undeniable that society is undergoing significant technological change, and along with these developments, criminals have improved their methods of concealment. Additionally, since everyone has access to smartphones and the internet nowadays, the typical person has a greater understanding of science and technology. Researching many ways to commit a crime without being discovered is simple with the internet. The use of the dark web for illicit activity is even more worrisome because no information is left behind.

The development of technology has lowered the barrier to crime. However, the same hands might also aid in the crime investigation. A tool for better criminal investigation and justice administration, forensic science is made up of a variety of ideas, including biology, sociology, criminal psychology, DNA profiling, physics, chemistry, fluid analysis, handwriting analysis, and computer science.

HOW CRIMINAL INVESTIGATION USES FORENSIC SCIENCE?

The three fundamental principles of individuality, exchange, and progressive change form the foundation of forensic sciences. The principle of individuality states that every object, whether natural or manufactured, has a unique identity that sets it apart from other things and prevents duplication. DNA and fingerprint are two crucial examples of this concept. In a variety of criminal proceedings, fingerprints have served as evidence. 

In State v. Karugope (A.I.R. 1954 Pat. 131), the Patna High Court ruled that the fingerprint expert’s assessment was adequate proof of guilt.

Exchange principle: Edmond Locard established this principle by noting that “contact exchanges traces. It simply suggests that the offender either leaves his traces after a crime has been committed or picks them up. In situations where a weapon is used, it leaves its mark on the victim’s body. If the two parties get into a physical altercation, the perpetrator may leave DNA traces on the victim’s fingernail or hair strands. The relationship between the victim, offender, and evidence is established by forensic science.

Ballistic fingerprinting connects the bullet casings to the weapon used to fire them. Used condom sperm aids in the capture of the rapist. It is possible to match the suspect’s teeth to bite marks on the body. In situations where a weapon wasn’t available, the type of wound can reveal the type of weapon that was used. Blood, footprints, narcotics, and just much any other material found at a crime scene can be used to infer information. Most likely, everything in criminal inquiry talks, not just the deceased.

Principle of progressive change: As implied by its name, this theory holds that everything undergoes progressive change over time. Time affects everyone and everything, including the offender and the evidence. Handle everything that might be proof extremely carefully. Blood samples, semen, hair strands, and fingerprints, for instance, must all be carefully obtained and inspected as quickly as possible to preserve their integrity and produce an accurate report. The sample’s quality must be preserved.

Other general principles of forensic sciences exist in addition to these three, such as the laws of analysis, comparison, and probability. According to these laws, a proper sample must be taken and examined, a sample should be compared to other similar samples, and all occurrences, whether they be certain or uncertain, are probable in nature.

THE FUTURE OF CRIMINAL INVESTIGATION AND FORENSIC SCIENCE

Future developments in forensic methodology have the potential to be extremely beneficial. Even though today’s forensic analysis is not perfect, future years may bring about more advanced methods. The criminal court system will see some significant advancements thanks to DNA analysis. Let’s look at some of the forensic technologies that will be quite useful in the future.

• DNA phenotyping will bring about significant change in the field of forensics. This method enables the creation of a person’s portrait just from a DNA sample. Physical characteristics including skin color, hair color, height, eye color, face shape, and occasionally even weight are determined by genes. Numerous characteristics of a person are stored in their DNA, which experts claim might even reveal a person’s geographic ancestry. However, DNA does not carry certain characteristics of the human body. DNA phenotyping is still being studied, and if its validity is shown, it will represent a significant advancement in criminal investigation.
• Sperm degradation in a used condom: A man’s sperm contains DNA. Therefore, it is possible to determine the time the rape occurred using the DNA contained in a used condom.
• Bacterial signatures: Studies are being done on the bacterial traces that individuals leave behind on many surfaces, including the air we breathe. According to scientific investigations, everyone-specific bacteria live in large numbers in human bodies. These bacterial samples can be extracted from the suspect’s faces and compared to traces discovered at the murder scene.
• Fingerprints: Since a very long time ago, people have been recognized by their fingerprints. However, there have been instances where they have resulted in erroneous convictions, suggesting that they are not perfect. Recent research, however, has revealed that several chemicals, including proteins and fats that are consumed as part of a person’s diet, are secreted by the fingertips. In the future, these objects might also be able to reveal the nutrition of the person whose prints are being studied. However, investigators aren’t currently employing such cutting-edge techniques.

Conclusion 

Based on the discussion above, it can be concluded that DNA will play a significant role in forensic sciences in the future. In many parts of the body, DNA is present. It can be extracted from samples of blood, skin tissue, saliva, semen, nails, hair, and more.

Additionally, DNA evidence is helpful in situations where there are several suspects. In the future, computers and artificial intelligence might be able to determine everything about a suspicious area or person without the need for an eye witness based on location and other personal information, in addition to DNA. Future developments in forensics and artificial intelligence might be able to precisely determine who should be suspected and who shouldn’t.

There will still be many difficulties even though these developments will provide a roadmap for criminal investigations. Only professionals can determine if a technique has been followed correctly or incorrectly since judges lack the necessary depth of scientific understanding. These problems influence the court’s decision to take a conservative stance. Forensic science is a valuable instrument for criminal investigations, but it can only be used to its full potential if both the investigating police and the judges understand and value it as such.

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References:

1. Jus Corpus [Online][Cited: 9 September 2022] https://www.juscorpus.com/the-criminology-of-the-future-how-science-helps-us-to-examine-crimes/．
2. Legal 60 [Online][Cited: 9 September 2022] https://legal60.com/the-criminology-of-the-future-how-science-helps-us-to-investigate-crimes/
3. Legalbites [Online][Cited: 9 September 2022] https://www.legalbites.in/criminology-of-the-future/．

This article is written by Kanika Arora from Delhi Metropolitan Education (Affiliated to GGSIPU).

Theory of Broken Windows 

Article 38 of the Constitution of India makes provisions for making India a welfare state. The social and economic development of the country is the basic function of the welfare state. The social structure and economy will collapse if the crime rate is not checked. Hence, the welfare state becomes a dream far from reality. For this reason, state officials must significantly reduce, if not eradicate, crime. The theory of broken windows first gained popularity in a 1982 article by James Q. Wilson and Geoge L. Kelling that was published in the Atlantic Monthly. It implies that having visible signs of criminal activity, antisocial behavior, and general disorder makes cities more likely to have serious crimes and other types of criminal activity.

In some areas, the police started conducting foot patrols, and it was examined five years later. The analysis showed that this program did not lower crime rates, but the population living in the areas that are patrolled on foot compared to places where there was no such foot patrol, felt safer. This effect occurred owing to the preservation of public order in these specific locations. Most social psychologists and law enforcement officials agreed that if one window in a building is broken and not fixed, the rest will soon follow. This can happen in both wealthy and underdeveloped areas. While some neighbourhoods are home to committed window breakers. While there are window lovers in other neighbourhoods, it is not necessarily common for window breaking to occur on a large scale. Instead, one broken window that is not fixed sends the message that no one is concerned, making it easy to break more windows.

Preventive detention 

This measure is used by the police throughout the whole world to curb crime. The major function of the police is to decrease crime. When the police have a suspicion about any person who can become a threat to public order or maintenance or is working against the law of the land, then police use this measure to prevent him from disrupting the law and order and hence the window which might have been broken if the power of preventive detention may have not used is still in its place. 

This power of arrest for preventive detention is often misused by a police officer and is a major concern concerning corruption in the police. One of the main causes of police corruption, according to the National Police Commission’s Third Report on the quality of arrests made by the Indian Police, is the ability to make arrests.  According to the report, 43.2% of the money spent on maintaining jails was attributable to unjustified police action, and generally speaking, close to 60% of arrests were either unnecessary or unjustified. The following was noted by the said Commission on page 31 of its Third Report-

“From the perspective of crime prevention, it is obvious that a significant portion of the arrests were related to very minor prosecutions, and as a result, they cannot be viewed as being particularly necessary. Unnecessary expenses for the upkeep of the detained individuals and are still in custody have been incurred. It was estimated that during the aforementioned period, only those prisoners whose arrest ultimately wasn’t necessary accounted for 43.2% of the costs in the associated jails.” 

The prosecution has the utmost duty, along with the defence counsel and Judge or Magistrate that no crime shall go unpunished and, at the same time, no innocent shall be punished.  

In both measures, if anything goes against the law, then crime rate is to be increased. 

For illustration– 

1. If A has committed an offence and is tried for that offence, but the prosecution did not prove the guilt of the accused beyond reasonable doubt, then the accused has found a loophole to commit a crime that goes unpunished, and hence a general view occurs in his mind to commit further crime. 

This illustration has the support of a Supreme Court Judgment in Dhananjoy Chatterjee alias Dhana vs. State of West Bengal, in which it was noted that- Some criminals are sentenced harshly, while others are sentenced differently for virtually the same crime, and a disturbingly substantial number of criminals go unpunished, encouraging the criminal and, in the end, undermining justice by undermining the system’s legitimacy.  

Madhya Pradesh High Court in Miss x (victim) vs. Santosh Sharma and others noted the effect of the environment on the crime rate. The High court described in paragraph 33 of this judgment that in a society where trappings of ignorance, feud pattern of society, and poor sex ratio make the life of female worse when she experiences such street harassment as it is a threat of real sexual violation that women experience while going to school, college or job.  

In para 34 of the said judgment, the High Court emphasized that crime and order are strongly interrelated and the investigation, prosecution, and adjudication shall be aware of the theory of broken windows, which influences police, law enforcement, and courts to target minor disorders to reduce the occurrence of more serious crimes.  

In para 44 of the mentioned judgment, M.P. High court makes it clear that Investigation, prosecution, and adjudication shall re-synchronize and connect the theory of broken windows with the prevalent theory of Marginal Deterrence to address the growing threat of crimes against women and, if possible consider strict enforcement of law and order over minor offences, particularly those that may lead to major and heinous crimes. 

Support of the theory 

Crime prevails more in areas where the police seldom visit, while an area regularly patrolled by the police becomes a center of administration with almost no crime committed by any person. When it is analyzed that there are certain areas where the crime rate is significantly higher, frequent patrols by the police will help to curb the offence. Education also plays an important role in decreasing crime rate in such areas as the theory suggests, that where the environment of a particular area affects crime rate, developing that area in terms of socially habitable fabric will decrease crime rate. 

The fundamental right to practice a profession is not an exception to this theory. The courts rightly observed the effect of the environment on the crime rate. The below-mentioned cases in this segment will make this point clear. 

The State of Bombay vs. R.M.D. Chamarbaugwala  – This Court stated in this case that gambling could not be promoted to the nature of trade, commerce, or intercourse and be made the subject of a fundamental right guaranteed by Article 19(1)(g). Likewise, in this scenario, dance bars have a detrimental effect on families, women, and adolescents, and have increased crime rates in addition to the trafficking and exploitation of women. 

Khoday Distilleries Ltd. and Others vs. State of Karnataka and Others –   The Court stated that trafficking in women, slaves, or counterfeit currency, as well as showing or publishing sexually explicit or obscene books and films are not fundamental rights since such practices are nasty and destructive.  The following observations were relied on:

“The reasonable interpretation of the phrase “the right to practice any profession or carry on any occupation, trade, or business” is “the right to practice any line of work or carry on any profession, trade, or business that can be legitimately practiced in a progressive society and is not repugnant to the generally accepted moral standards of that society.”   

Children, where there is lawlessness, grow up contrary to law. If education is provided along with community policing and economic and social aid by the state will inculcate law-abiding citizens in the area. The important fact on which the theory of broken windows is based is that if a window is broken and it is not repaired, then soon all the neighboring windows to that window will get broken, and slowly all the windows of the building will get broken and that building will collapse. Similarly, the theory is applicable in society. If a crime goes unpunished or an area is concerned with minor offences & no cognizance is made of that offence, then the minor crimes will take the form of a major and serious crime within a limited time. Lawlessness will prevail and the rule of law will lose its roots. 

The members of the society have to report the offence that happened in their presence or that they know has happened along with any evidence and testimony as required by the court as this will help to repair that window that was broken by the criminal. The motive behind the theory of broken windows is to recognize the effect of the environment on crime rate. Certainly, it affects crime rate. The provisions for habitual offenders come into this category along with history sheeters. 

Criticism of the theory 

The theory is criticized on the ground that it did not reduce crime rate but only fools society that crime is curbed on the false ground of community policing. The original article and proposer of such theory also accounted explanation for such analysis that areas, where community policing was done, were less prone to the offences. 

The second criticism is that if an offender is punished for minor crimes and convicted and sent to jail, he will be released as a criminal to commit major crimes, since now he has a connection in jails with criminals having serious crimes on their names. This statement is practical and is not an assumption. This theory also lose its effect on the example that if a child is punished for minor faults, he becomes either-  

1. Frightened to confess what he had committed, or 
2. used to such punishment and has no effect of it on his mind. 

In both the cases, the child has become ready to commit serious mistakes. This is also one of the reasons why it is necessary to hear the prosecution and defense on the sentence to the accused after trial and conviction is done by taking into account the contention of the defense and prosecution. There are a plethora of articles in which poverty is called a reason for the increasing crime rate. This may be true to an extent but one should know that poverty does not make serious criminals like dacoity, murder, rapes, waging war, sedition etc; but only theft of certain articles of food and clothing when required. This statement is not to be taken as supporting minor crimes. But when poverty is coupled with no education or education against the morals of society, the chances of major crimes become immense. So what is required is the right type of education in the poverty-ridden areas. 

Way ahead 

This is true that environment and crime rate are directly proportional with some exceptions. So when the environment of the society is progressive with economic and social justice, definitely major crimes be reduced, if not minor crimes. There is no straight jacket formula to reduce crime rate but improving the environment of the society will definitely help the citizens to move ahead in their life without doing any crime. 

The Article on the theory of Broken Windows also gave an example in which a man buy two cars and kept one of them in a grey area of society while the other in a progressive area of society. After a week, the car in the grey area was totally aimed at ruins while the car in the other area was untouched. The man then hammered the car in the progressive society and soon the habitants and the passerby came to attack that car which was hammered. 

This shows that the environment as well as policing affect the crime rate. For the car in the grey area was ruined for no reason. Secondly, the car in the other area waited for the first attack and when it found the first attack, it was then turned into ruins. If in the second area, patrolling by the police may have been done, then the fate of that car may have been changed and it might be protected. For the grey area, only policing will do nothing, firstly the state has to change the environment of that area. Make the citizens educated, provide them economic and social security, and then we can assume that policing will curb crime rate in the particular region. 

Conclusion 

Community policing is required to end the lawlessness in a developed society so that minor crimes do not turn into major crimes. But where the society itself is the source of crime, what would we expect coming out of it? Once the environment is changed from negative to positive, crimes are reduced. No person wants to be called a criminal. No criminal wants his child to become a criminal. Unless a positive environment is developed in such areas, the crime rate is hard to be checked. For reducing white-collar crimes, moral education is required to be given and this means whatever people earn should be through legal ways. 

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References

1. https://www.theatlantic.com/magazine/archive/1982/03/broken-windows/304465/
2. https://police.py.gov.in/Police%20Commission%20reports/3rd%20Police%20Commission%20report.pdf paragraph 22.23 
3. Dhananjoy Chatterjee alias Dhana vs. State of West Bengal, (1994) 1 Crimes 319
4. Criminal Appeal No. 6326 of 2019
5. The State of Bombay vs. R.M.D. Chamarbaugwala, (1957) AIR(SC) 699
6. Khoday Distilleries Ltd. and Others vs. State of Karnataka and Others, (1995) 1 SCC 574  

This article is written by Somnath Sharma, a law graduate.

INTRODUCTION

According to the IPC, man’s relics are an integral part of the crime. However, these offenses fall under the general exceptions set out in Articles 76 to 106 of the Indian Penal Code, where there is no personal reason and the act is committed under clearly persuasive circumstances. As a result, perpetrators must be held accountable for their actions in court. Waivers are granted if the defense is successfully defended in court.  The insanity defense in a criminal case helps prove that the perpetrator was suffering from a serious mental disorder at the time of the examination. Because of this, the person may not be paying attention to their actions. Non-psychotics may, in certain circumstances¹, attempt to invoke the insanity defense to avoid paying a fine, but this is rare. Although the insanity defense was intended to improve justice, most people use it to avoid fines and other punishments. Such situations have no deterrent and are serious as people become more and more involved in such activities causing problems. 

MEANING OF INSANITY

Insanity is the inability of a person to understand the meaning of his actions or to realize that he is wrong or illegal. This alludes to mental illness, in which a person’s mental faculties are severely impaired and he is unable to comprehend the consequences of his actions. Insanity is difficult to define in a way that meets legal standards. For ordinary people, insanity is usually associated with mental illness or some kind of mental illness. 

According to Black’s Law Dictionary², any mental illness serious enough to deprive a person of legal capacity and exempt them from criminal or civil liability is considered insanity. “Mental illness,” “mental condition,” and “mental disorder” refer to illnesses that require psychiatric or psychological help, while insanity is a legal term. As a result, one can have a mental illness, illness, or disability without being legally considered insane. However, the reverse is also true.

INSANITY AS DEFENCE AND ITS TYPE

The defendant, who is defending himself on the charge of insanity, admits to having committed the crime but claims that his insanity absolves him of responsibility. It’s more of an explanation for what the person did than an apology. A defendant may raise this defense during a criminal trial in court. It has become necessary to determine the psychology of criminals. While criminal law focuses on the suspect’s “state of mind,” it also deals with “men’s rea.” Men’s rea is a legal term that focuses on a person’s mental health. It is necessary to consider not only the physical behavior of the offender but also the emotional state. The mental state of the mentally ill person prevents him from having criminal intentions, 

In the Indian criminal justice system, the ‘insanity defense is a strategy used to acquit criminal suspects. It is based on the idea that the person was suffering from a mental illness and could not understand his actions.

There are two kinds of reasons for him: 

Permanent Insanity: The condition in which a person is permanently insane. Past actions and experiences can indicate that a person is permanently insane and obscure the seriousness of the situation. 

Temporary Insanity: Occasional or temporary loss of consciousness. Examples of temporary insanity include depression, anxiety disorders, schizophrenia, and other temporary mental illnesses. There are two possible consequences of this transient madness: he is “insane and therefore innocent” and “guilty but insane and therefore not a crime”.³

To qualify for an exception under Section 84 of the Indian Penal Code, the suspect must have engaged in an illegal or unlawful act at the time the offense was suspected or he had a mentally ill comprehension and must indicate that when there is suspicion of a crime. No one is allowed to cite mental illness as a valid reason for committing a crime. The suspect’s mental state is so bad that he cannot fully comprehend the nature of the crime.⁴

REPERCUSSIONS OF SANITY DEFENCE

Insanity Defense has been misused time and time again, releasing guilty people under various scenarios of insanity and undermining the effectiveness of the rule of law. Due to the prevalence of misuse, many countries have eliminated this defense including Germany, Argentina, Thailand, and much of the United Kingdom. It is difficult to prove insanity legally and requires concrete evidence, but it is easy to prove insanity medically. It is difficult to meet all the requirements of Section 84 to avoid criminal liability. Therefore, most insanity defense cases end with the defendant being criminally detained and punished. Mental illness defenses are commonly misused because it is difficult to determine whether a person was “healthy or unhealthy” at the time the crime was committed.

CRITICISM

Although rarely used in criminal cases, the defense of insanity remains controversial. The question of whether the defense of insanity is necessary often comes to our minds. Due to evidence of insanity, defendants charged with more gruesome and serious crimes cannot be found guilty of committing such crimes. If the defense alleges insanity, the suspect pleads guilty and demands a plea of ​​not guilty based on his mental state. Criminals sometimes pretend to be insane to avoid punishment. In reality, claiming an insanity defense is a dangerous defense at best. A basic rule of criminal law seems to be at stake. The insanity defense is based on the idea that punitive action is acceptable only if the accused deserves it. As a prerequisite for punishment, the perpetrator of the crime must bear the moral responsibility of being a moral agent. When a person’s mental illness is so severe that he can no longer control his irrational or compulsive behavior, he can no longer act as a moral agent would be unfair. 

Section 84 considers mental illness a cognitive impairment. Other types of mental illness are not admissible in court. Various mental illnesses can affect your ability to work to the point where you lose control of your activities. Many crimes are committed out of anger and emotion. A person can understand what he has done only after he has performed the act. However, his actions were governed by the emotions of the time. His cognitive abilities can be fairly normal.⁵

Although Section 84 seeks to provide appropriate treatment for mentally ill offenders, there are circumstances in which false acquittals or convictions are made. Therefore, broader ideas such as emotions, pre-action states, etc. should be included. The definition of legal insanity has been expanded to include other features of medical insanity. Instead of focusing on criminals, we need to focus on eliminating crime.  On the contrary, in the general interest of society, these criminals should not be released, given proper mental health evaluations to avoid false acquittals or convictions, and placed in psychiatric facilities. In all these situations, a psychiatrist should be consulted and an individual’s fate should not be left to the discretion of a single judge. Judges may be required by law to make certain decisions. He should get a medical opinion.

LANDMARK CASE LAWS

Ashirudeen Ahmed v. The King⁶ was intended to create a new test. It has been determined that to be eligible for protection under Section 84 of the IPC, 

1. a defendant must produce evidence of one of the following: 
2.  did not know that the act was illegal; 
3.  did not know that the act was illegal; 

Dayabhai ChhaganBhai Thakkar v State of Gujarat⁷ found that consideration of the defendant’s mental state depends on the period during which the crime was committed. If the suspect was in a  state of mind eligible for protection under Section 84 of the  IPC, only the events before, during, and after the crime can be used to make that determination.

The Supreme Court has indicated which diseases are covered by this defense and which are not included in her Bapu Gajraj Singh v State of Rajasthan⁸. By law, this defense does not apply to bizarre, selfish, or impatient behavior or illnesses that impair the intellect and affect emotions and willpower. Also, it is not enough for the defendant to experience occasional insanity or epileptic seizures but otherwise behave normally. 

In Hari Singh Gond v. State of Madhya Pradesh⁹ case, the Supreme Court ruled that Section 84 of the IPC is the legal standard of accountability in cases of suspected mental illness. Courts, on the other hand, have largely associated the phrase with insanity. But the definition of “madness” is vague. It is a term used to describe varying degrees of mental illness severity. Therefore, people with mental illness are not always exempt from criminal responsibility. A distinction must be made between medical insanity and legal insanity. Medical insanity is not a matter of court. It’s legal madness. 

In Surendra Mishra v. State of Jharkhand¹⁰, the Supreme Court held that “legal insanity,” not “medical insanity,” must be proven to acquit a suspect of criminal liability under section 84 of the IPC. 

CONCLUSION

The section on insanity deals with all forms of insanity, such as “temporary or permanent,” “natural or consequential,” and “caused by disease or birth,” and treats the suspect as the sole criterion for establishing criminal liability. completely dependent on the behavior of the person. As it is difficult to determine whether someone is mentally unstable at the time of a crime, it is also difficult to determine their mental health status. Also, defending oneself is quite a challenge for an insane person. In addition, rational individuals use this defense to avoid punishment. This state makes it difficult for the law to achieve its main purpose, turning it into a loophole. The fact that a court must determine a person’s truthfulness in itself a very difficult situation makes this rule an additional loophole.  Only legitimate entities should be allowed to use insanity defenses. Ultimately it is left to the discretion of the courts, but laws made in the public interest must be applied fairly. It is reasonable to assume that the laws on insanity no longer serve their original purpose and is being used by criminals as a defense against law enforcement. Indian courts have often sought a more progressive approach to enforcing the concept of “mental insanity” in criminal law in the light of advances in medicine, and psychiatry in particular.

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References:

1. Parthasarathy Ramamurthy & Vijay Chatoth, How does India decides Insanity Plies? A review of the High Court judgements in the past decades, https://journals.sagepub.com/doi/abs/10.4103/IJPSYM.IJPSYM_373_18 (Visited on May 29, 2021).
2. Black’s Law Dictionary, 8th Ed., p.810.
3. Russell Covey, “Temporary Insanity: The Strange Life and Times of the perfect defense”, Available at: https://www.bu.edu/law/journals-archive/bulr/documents/covey.pdf (Visited on May 28, 2021).
4. Manas Shrivastava & Adatsa Hota, “Privacy and Legal Rights of People with Mental Illness”, available at: https://www.ijlmh.com/wp-content/uploads/Privacy-and-Legal-Rights-of-People-with-Mental-Illness.pdf (Visited on May 30, 2021).
5. Ashiruddin Ahmed v The King, 1949 CriLJ 255.
6. Dayabhai Chhaganbhai Thakkar v. State of Gujarat AIR 1964 SC 1563.
7. Bapu Gajraj Singh v. State of Rajasthan (2007) 3 SCC Cri.509.
8. Hari Singh Gond v. State of Madhya Pradesh, (2008) 16 SCC 109
9. Surendra Mishra v State of Jharkhand, AIR 2011 SC 627

This article is written by Jay Kumar Gupta, a second-year BBA LL.B.(Hons.) student at the School of Law, Narsee Monjee Institute of Management Studies, Bangalore.

INTRODUCTION

DNA (deoxyribonucleic corrosive) is the most essential hereditary material tracked down in the body cells of every single person. It decides the way of behaving, human and body character of a person. It is fundamentally a heredity material in people that no two individuals (other than indistinguishable twins) share.

CONCEPT OF DNA TEST

DNA profiling is not another term for Indian Criminal Investigation, however unquestionably of course less one. DNA tests are permissible in Indian courts and throughout the time it has been created to a decent degree of precision. DNA (Deoxyribonucleic corrosive), otherwise called the structure block or hereditary outline of life, was first depicted by the researchers Francis H. C. Kink and James D. Watson in 1953. The example of the mixtures that comprise the DNA of a singular living being decides the improvement of that person. DNA is similar in each cell throughout a singular body, whether it is a skin cell, sperm cell, or platelet.

Except for indistinguishable twins, no two people have a similar DNA outline. DNA examination, or DNA profiling, looks at DNA found in actual proof like blood, hair, and semen, and decides if it very well may be matched to DNA taken from explicit people. DNA examination has turned into a typical type of proof in criminal preliminaries. It is likewise utilized in common suits, especially in cases including the assurance of Paternity of Identity by the Supreme Court of the United States in Maryland v King. The approach of DNA innovation is one of the main logical headways of our time. The maximum capacity for utilization of hereditary markers in medication and science is as yet being investigated, yet the utility of DNA distinguishing proof in the law enforcement framework is as of now undisputed. Starting from the principal utilization of scientific DNA examination to get an attacker and killer, the courts have recognized that DNA testing has an unparalleled capacity to both, excuse the wrongly sentenced and to distinguish the blameworthy. It can essentially further develop both the law enforcement framework and police examination rehearses.

DNA TECHNOLOGY IN THE ADMINISTRATION OF JUSTICE

DNA innovation has been utilized in both Civil and Criminal matters. While validating proof and Disaster Victim Identification expected in Criminal cases, DNA innovation has been utilized. DNA can likewise be utilized to recognize hoodlums with staggering precision where natural proof is required. In Civil issues, DNA innovation is utilized to decide the hereditary, blood connection, support of a kid, and family relationship. DNA for the most part works or is utilized in two ways to tackle violations. At the point when a suspect is distinguished and his example or DNA will be contrasted and the proof got from the crime scene, this correlation makes it simple to decide if the suspect had carried out the wrongdoing or not. Another case comes, where the suspect has not been distinguished and the organic proof got from the crime scene would be contrasted and the guilty parties’ profiles in DNA data sets which assist in recognizing the wrongdoer.

In criminal matters, DNA profiling has not just assisted in breaking cold cases and connecting violations with lawbreakers yet additionally supports the ID of casualties generally speaking. As a rule, the casualties are being killed with an overall viewpoint of concealing the personality of the lawbreaker and because of durable examination methods, it becomes hard to interface recuperated body stays with the person in question.

In such circumstances, DNA profiling ends up being a curse. It likewise aids in further demonstrating the culpability or blamelessness of the denounced yet treating the DNA proof might lead the case in a misguided course because of which courts are left with no other choice but to give the advantage of the uncertainty to the charged. An amazing occurrence for this was Santosh Kumar Singh v State through CBI, otherwise called the Priyadarshini Mattoo case.

The altering of proof alongside the terrible examination was the greatest obstacle looked at by the arraignment in the preliminary. The cherry on top was that the DNA test demonstrated assault however again that was being altered during the examination which makes an advantage of uncertain circumstances for the blamed person. Regardless of many confirmations inclining toward the prosecution, the trial court vindicated the charged individual expressing that CBI had bombed on a few counts specifically disguising from the court that the confirmations gathered by it, were manufactured for the denounced. Likewise, an appropriate system for leading the DNA test denies the court a valuable chance to judicially audit it.

DNA AND FAIR TRAIL

DNA is one of the most remarkable examination apparatuses with a special case of indistinguishable twins which implies that the DNA of every individual contrasts from one another and no two individuals exist having a similar DNA. DNA has excellent evidential worth. On the off chance that any DNA proof has been gathered from the crime location, it lays out an immediate connection with the guilty party and can wipe out the different suspects from doubt. For instance, during an assault, natural proof like semen, blood, skin cells, body hair, and so on, can be left at the crime location or the victim’s body. The organic proof got from the crime location would be contrasted with the wrongdoers’ profiles in DNA data sets which assist in distinguishing the guilty party. This is the way DNA innovation help in a fair preliminary in rape cases as well as in cases connected with hijacking, aggressive behavior at home, murder, and DNA innovation assist Civil courts with settling the question matters of common cases.

The compelling DNA as an evidential apparatus helps in looking at and dissecting the disposal of suspects having legitimate admittance to the crime scene at the hour of the wrongdoing. At the point when DNA has been received from the crime scene, it can begin taking out the suspects approaching the crime scene yet their DNA isn’t coordinated with the organic proof gathered from the place and that is the way this DNA innovation helps in a fair preliminary by segregating the blameless individuals who were available at the crime location however not having any connection with the wrongdoing.

TOLERABILITY OF DNA PROOF IN PATERNITY QUESTION CASES

In India, at first, judges took a moderate view concerning the evidential worth of DNA innovation in settling the maternity and paternity question cases. The Indian legal executive frequently deals with issues in responding to an inquiry for example while concluding fatherly obligations, the natural rate ought to be given need over the friendly rate. DNA rate testing can give proof that shows that an individual has a blood connection or natural association with a departed individual or can assist an individual with involvement in the suit.

Section 112 of the Indian Evidence Act, 1872 says that assuming a kid was brought into the world during the continuation of a substantial marriage between his mom and any man or on the other hand on the off chance that a youngster was brought into the world inside a time of 280 days after the disintegration of marriage and the mother stays unmarried during that period, it is the convincing verification that the kid is a genuine offspring of that man, until and except if the man shows that he had no admittance to the mother of a kid during the concerned period. Presently, DNA testing can be utilized to decide the paternity of the youngster and can without much of a stretch supplant this segment, as DNA testing can undoubtedly sort out the authenticity of that kid. Be that as it may, DNA testing decides the natural rate, as opposed to the social rate.

HINDRANCES TO THE EXECUTION OF DNA TECHNOLOGY

Assuming one examines the plenty of cases over utilization of DNA proof one can be guaranteed that there are a few misgivings about the manners by which such touchy information can be utilized in the Indian situation. This carries us to examine the central issues which have hindered the execution of the utilization of the innovation as well as the impending DNA Bill. A portion of the hindrances in execution have been expressed underneath.

First is the autonomy of the scientific organizations, which, most importantly, is depicted under the policing and the particular Home Department. Without having sufficient autonomy, there are higher possibilities of proof altering and misusing. Furthermore, the measuring labs don’t have the labor required or in any event, working infrastructure. Many specialists are expected for legitimate examination, individuals for conveying the advancement between the specialists, and in particular, between the criminological wing and the police. Thirdly, the police and the research officials must be completely prepared for taking care of the crime scene and gathering the proof. Right now inferable from an ill-advised or even absence of essential preparation required, individuals sent at the crime location obliterate the crucial confirmations which might have demonstrated so assuming it had been gathered by an authority prepared, as the person in question would have applied the fundamental information with ability and diligence. Lastly, and above all, India needs a devoted regulation that can legitimize the utilization of DNA proof for examinations, and the equivalent will not be exclusively left for the court to decide. Detailed regulation is probably going to cure all the previously mentioned limitations.

Notwithstanding the previously mentioned viewpoints, there lie more prominent difficulties because of which the courts also are reluctant to involve scientific proof in a criminal examination. Some of them, as indicated by the courts are amateurish direct of actual proof, including ill-advised assortment, or not gathering the proof, protecting the proof, no upkeep of chain of authority, as well as careless and postponed dispatch of actual proof for logical investigation. Different reasons incorporate not sending a charged person for medico-lawful assessment, non-lifting of fingerprints by the researching official (IO), or when the bloodstained human item had been sent for synthetic assessment without covering a similar following the capture of something similar. The courts are normally constrained to dismiss the report. There are additionally specialized lacunas that lead to altering of the proof like the postponed review of shows, non-notice of blood bunch in serologist’s report, ill-advised tests, and so forth.

LIMITATIONS OF DNA PROFILING

The presentation of DNA profiling has represented a few serious difficulties to the legitimate privileges of an individual, for example, the Right to Privacy and Right against self-implication which is the reason its been declined as proof by the Courts in some cases. Additionally, the acceptability of the DNA proof under the watchful eye of the court generally relies upon its exact and legitimate assortment, safeguarding, and documentation which can fulfill the court that the proof which has been placed in front of it is solid.

There is no particular regulation present in India that can give specific rules to the examining organizations and the court, and the method to be embraced in the cases including DNA as its proof. Nonetheless, a few arrangements permit the assessment of an individual blamed for assault by a clinical expert and the clinical assessment of the assault casualty separately yet the tolerability of these confirmations has stayed far-fetched as the assessment of the Supreme Court and different High Courts in different choices stayed clashing.

Judges don’t prevent the logical exactness and decisiveness from getting DNA testing, yet at times they don’t concede these confirmations on the ground of legitimate or established restriction and now and again the public strategy. The Patna high court, in Rajiv Singh v. The State of Bihar alluded to OJ Simpson case and noticed the potential mistakes at different stages engaged with DNA technique and noticed:

One of the enduring impacts of the OJ Simpson case will probably be a more noteworthy examination by safeguard attorneys of the arraignment’s scientific DNA proof introduced in criminal cases. In the Simpson case, the protection, put the wrongdoing research facility being investigated.

There is no significant question about the basic logical standards in DNA profiling, be that as it may, the ampleness of research facility systems and the skill of the specialists who affirm ought to stay open to request. Although there is a typical agreement among established researchers that DNA profiling can yield results with an extremely high likelihood, the complicated technique of DNA profiling isn’t without issues. At each period of the seven-step methodology recently portrayed, botches and an ill-advised treatment of the DNA test can deliver misleading outcomes which at times can prompt lifelong incarceration or even capital punishment judgment.

Subsequently, the ampleness of lab methods and the capability of the specialists who affirm ought to stay open to request. The assortment of organic proof remains part of the most extreme significance in the scientific examination. The controls or pollution of tests whether volunteer or carelessly may vitiate the master report.

CONCLUSION

It may very well be securely presumed that the Supreme Court is yet to think with point-by-point knowledge about the sacred legitimacy of different measurable devices for uncovering reality during examination even though there have been many cases whose conviction and guiltlessness depended on the DNA proof. To make the innovation of DNA profiling more dependable, the authorities and court need to concoct specific rules or regulations so there will be lesser messed-up examinations as are the possibilities of the unnatural birth cycle of equity.

This article is written by Arpita Kaushal of UILS, PUSSGRC , HOSHIARPUR.

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CITATIONS

1. Khyati Jain, ‘Challenges and concerns in Admission of DNA evidence in India: With special reference to DNA Technology (Use and Application) Regulation Bill, 2019’ (SCC Online Blog, 6 April 2022), https://www.scconline.com/blog/post/2022/04/06/challenges-and-concerns-in-admission-of-dna-evidence-in-india/ ( last accessed on 27 June, 2022 ).
2. Maryland v King 133 S.Ct. 1958 (2013).
3. Santosh Kumar Singh v State, (2010) 9 SCC 747.
4. V.R. Dinkar,  Forensic Scientific Evidence: Problems and Pitfalls in India, 3 International Journal of Forensic Science & Pathology, 79, 80 (2015).
5. Rajiv Singh v. The State of Bihar,( 2010) 9 SCC 747.
6. People of the State of California v. Orenthal James Simpson, 28 Loy. U. Chi. L. J. 461 (1997).

This article is written by Arpita Kaushal, a student of UILS, PUSSGRC , HOSHIARPUR.

Introduction

A country’s law should develop with the progression of time and the progression of time. In troublesome times, as in any respectful society, society requires more thorough and brutal guidelines, however the topic of how much stricter and more rigid a law should remain with regards to making a specific regulation. In India, a far-reaching and comprehensive way to deal with the laws is expected to oversee sexual offenses. A decent code ought to have three attributes, as per Macaulay, the planner of the Indian Penal Code: accuracy (liberated from vagueness), conceivability (simple clear by normal individuals), and it ought to be a product of legislature law-making (least judicial intervention).¹

The world is dynamic; changes happen in light of cultural prerequisites, as well as the overall individuals who have been involved in a situation in that society. For instance, there was basically no law to manage cyber-wrongdoings in the eighteenth century, yet because of innovative enhancements and dynamic perspectives, the Cyber Law grew simply. Because of the startling flood in the number of cyber dangers, ransomware, and other cyber offenses, we understood that law to address these advanced wrongdoings was required. Essentially, the Criminal Law Amendment Bill 2018 proposes to change key bits of the Indian Penal Code, the Criminal Procedure Code, and the Public Order and Security Act, as well as increment the base discipline for assault, including the age part.

Before the 2018 Amendment Act, the Criminal laws has been revised in the year 2013, concerning the previously mentioned issues as they were. The amendment in the criminal laws was required after the Nirbhaya case. Nirbhaya, a 23-year-old paramedical understudy, was violently gang-raped, assaulted, and tortured in a moving transport on the evening of December 16, 2012. She passed on from her wounds on December 28, 2012, in the wake of battling for her life. This deplorable demonstration ignited an impressive shock in the nation over. The public demanded that the charged be hanged, yet in addition that the nation’s assault laws be changed. Following the Nirbhaya episode on December 23, 2012, a three-part council was framed, drove by Late Justice J.S. Verma, previous Chief Justice of the Supreme Court of India, with Justice Leila Seth, previous Judge of the High Court, and Gopal Subramanium, previous Solicitor General of India, to prescribe changes to the Criminal Law to the Legislature to make assault laws and different violations against ladies more contentious. Accordingly, the Criminal Law Amendment of 2013 was sanctioned.²

Indeed, even after the draconian measures authorized by The Criminal Law (Amendment) Act, 2013 in the fallout of the Nirbhaya case, the general public was again stunned by a rate in Kathua, Jammu, and Kashmir. An 8-year-old young lady capitulated to a gang’s desire and was sexually assaulted and killed, therefore. This sickening episode fills in as a suggestion to society that the assault culture has continued as well as weavers in our general public, where such violations are finished without risk of punishment. Because of the far-reaching announcing and public objection encompassing the matter, parliament had to take on “restorative measures.” The Criminal Law (Amendment) Ordinance, 2018, was accordingly supported by the bureau and endorsed by the President on April 21, 2018. The announcement hardened the punishments for people blamed for assaulting youths, including capital punishment.

The Criminal Law (Amendment) Act, 2013

The Criminal Law (Amendment) Act, 2013, was approved by the Lok Sabha on March 19, 2013, and the Rajya Sabha on March 21, 2013. The Bill was signed by the President on April 2, 2013, and it was deemed to take effect on February 3, 2013. On 3 February 2013, India’s President, Pranab Mukherjee, issued an Ordinance to that effect.

The Criminal Law (Amendment) Act of 2013 updated and added new sections to the Indian Penal Code (IPC) relating to numerous sexual offenses. Certain acts were expressly recognized as offenses under the Act, which were dealt with under relevant laws. The Indian Penal Code has been amended to include new offenses such as acid attacks, sexual harassment, voyeurism, and stalking.³ The amendments made by the Act are mentioned as follows:

1. Section 354A
   Previously, a man who makes unwanted sexual advances, forcefully shows pornography, or demands/requests sexual favors from a woman committed the offense of sexual harassment simpliciter under section 354A, which is punishable by up to three years in jail. Sexual harassment, which is punishable by up to a year in prison, also includes making sexually tinged remarks.
2. Section 354B
   If a male assaults or uses unlawful force against a woman, or aids or abets such an act with the goal of disrobing or compelling her to remain naked in a public place, he commits an offense under section 354B, which carries a sentence of three to seven years in prison. This section deals with a fairly specific offense, and it complements and adds to the clause dealing with outraging a woman’s modesty. This is a good provision, given the numerous examples of women being stripped in public as a kind of punishment, mostly in impoverished communities, as reported in the news.
3. Section 354C
   Any man who views or takes the image of a woman engaged in a private act in circumstances where she would normally expect not to be viewed either by the perpetrator or by any other person at the perpetrator’s command, and then disseminates such image is guilty. Such a person is liable under Section 354C. A first conviction carries a sentence of imprisonment of not less than one year, but not more than three years, and a fine, while a second or subsequent conviction carries a sentence of imprisonment of either description for a term of not less than three years, but not more than seven years, and a fine.
4. Section 354D
   Under this new section, stalking has been designated as a specific offense. If a male stalks a woman, he could face a sentence of up to three years in jail for the first offense and up to five years for consecutive offenses. However, there are some exceptions, such as if a person can establish that the actions were taken in accordance with the law, were reasonable, or were necessary to avoid a crime. According to Section 354D, the crime of stalking was a gender-neutral offense, meaning that it may be committed by either a man or a woman.
5. Section 375
   Under the new section, a man is considered to have committed rape if:
   (a) Penetration of penis into vagina, urethra, mouth, or anus of any person, or making any other person do so with him or any other person;
   (b) Insertion of any object or any body part, not being a penis, into the vagina, urethra, mouth, or anus of any person, or making any other person do so with him or any other person;
   (c) Possession of any bodily part with the intent of inducing penetration of the vagina, urethra, mouth, anus, or any other body part of the individual, or compelling the subject to do so with him or another individual.
   (d) Applying the mouth to a woman’s penis, vagina, anus, or urethra, or causing another person to do so with him or another person.;
   (e) Ultimately, contact the vagina, penis, anus, or bosom of the individual or makes the individual touch the vagina, penis, anus, or bosom of that individual or some other individual.

The 2013 Act expands the meaning of rape to incorporate oral sex and the inclusion of a thing or other real part into a lady’s vagina, urethra, or anus. Rape carries a minimum sentence of seven years in jail and a maximum sentence of life in prison. If a police officer, medical officer, army member, jail officer, public officer, or public servant commits rape, he faces a minimum sentence of ten years in prison. If the victim dies or goes into a vegetative state as a result of the rape, the victim is sentenced to life in prison, with the possibility of death. Under the newly revised provisions, gang rape now carries a minimum sentence of 20 years in prison.

The new amendment clarifies that “consent” is an unequivocal agreement to engage in a specific sexual act; it also clarifies that “consent” does not entail “no resistance.” Non-consent is a crucial component in the commission of rape. As a result, the notion of consent is crucial to the outcome of a rape trial, and it has been used to humiliate and discredit rape victims.⁴

Need for Criminal Amendment Act

According to research by the “Thomson Reuters Foundation,” sexual violence, human trafficking, child labor, underage marriage, and female foeticide make India the most dangerous country for women. In 2012, the National Record Crime Bureau (NRCB) documented 24,923 rape crimes across India, according to its annual report for the year 2013. The culprit was discovered to be a relative of the victim in 98 percent of the cases. Assault has a very low per capita rate and, as a rule, it goes unreported. However, rape instances such as the Kathua rape case and the Unnao rape case sparked considerable public resentment. And a sense of censure leads to media attention and public protests in the name of justice. As a result of the increased willingness to disclose rape incidents, the Indian government has made revisions to the current penal legislation. As a result, the Criminal Amendment Act was absolutely necessary.⁵

Criminal Law (Amendment) Act, 2018

On July 23, 2018, the Ministry of Law and Justice introduced the Criminal Law Amendment Bill 2018, which was passed by the Lok Sabha and Rajya Sabha on July 30 and August 6, respectively. This law attempts to address the problems of sexual assault victims and to enforce the death sentence for anyone convicted of raping a girl under the age of 16 or 12.⁶ It repealed the President of India’s April ordinance and made changes to the following laws:

• IPC 1860
• CrPC 1973
• Evidence Act 1872
• Protection of Child from Sexual Offences (POCSO) 2012

Salient Feature of the Act

This Act makes significant reforms to our penal laws to protect girls from the horrible crime of rape. The following are the details⁷:

• Rape offenders must serve at least ten years in prison; formerly, the minimum sentence was seven years.
• Anyone who rapes a girl under the age of 16 will be sentenced to a minimum of 20 years in prison.
• If a person rapes a girl under the age of 12, he or she will be sentenced to a minimum of 20 years in jail, a maximum of life in prison, or the death penalty.
• If the rape crime is committed against a girl under the age of 16, the accused will not be given anticipatory bail.
• Convicted persons are required to pay the victim, with the funds going toward the victim’s medical expenses and rehabilitation. And the remuneration will be fair and equitable.
• If a police officer commits rape, he or she will be sentenced to a minimum of 10 years in jail, regardless of where the crime takes place.
• In the case of rape, the police are required to conclude the investigation within two months of the FIR being filed.
• After 6 months, the deadline to dispose of the rape appeal begins.
• The law stipulates that anyone guilty of gang rape of a woman under the age of 16 will be sentenced to life in prison and fined.
• Anyone convicted of gang rape of women under the age of 12 faces a sentence of life in prison, a fine, or the death penalty if they are under the age of 12.

Amendments made in IPC

Inserted Sections

I. Section 376AB

• This section was inserted just after Section 376A and states that anyone who commits rape with a woman under the age of 12 years shall be punished with rigorous imprisonment for a term of not less than 20 years, and it may extend to life imprisonment, implying that what he has done is thoroughly illegal and off-base, or in a legal sense, a reminder for that person’s natural life, as well as a fine or death penalty.
• Also obligated to pay compensation, which must be reasonable and just in order to cover medical costs and victim rehabilitation.
• Furthermore, any payment made by the person who has been condemned under this clause must be made to the individual in issue (victim).

II. Section 376DA

• After Section 370D, the 376DA section was added, which states that if a woman under the age of sixteen is raped by one or more people in a group or does something for a common purpose, each of those people is deemed to have committed the crime of rape and shall be punished with life imprisonment, which implies that what he has done is completely illegal and off-base, or in a legal sense, a reminder for that person’s natural life. A
• Also obligated to pay compensation, which must be reasonable and just in order to cover medical costs and victim rehabilitation.
• Furthermore, any payment made by the person who has been condemned under this clause must be made to the individual in issue (victim).

III. Section 376DB

• This section states that if a woman under the age of 12 years is raped by one or more people acting in concert for a common purpose, each person is deemed to have committed the crime of rape and is punished with life imprisonment, which implies that what he has done is thoroughly illegal and off-base, or in a legal sense, a reminder for that person’s natural life, as well as a fine or death penalty.
• Also obligated to pay compensation, which must be reasonable and just in order to cover medical costs and victim rehabilitation.
• Furthermore, any payment made by the person who has been condemned under this clause must be made to the individual in issue (victim).

Amended Sections

I. Section 166A
This provision comprises three clauses that deal with public servants violating lawful orders. Sections 376AB, 376B, 376C, 376D, 376DA, and 376DB are substituted for clause (c).

II. Section 228A
Subsection (1) of this section was replaced with Sections 376AB, 376B, 376C, 376D, 376DA, and 376DB, which deal with the disclosure of the identity of the victim of certain crimes.

III. Section 376
This section deals with the rape penalty and sub-section 1 was replaced with “anyone commits an offence of rape shall be punished for a term not less than ten years or which may extend to life imprisonment and with fine.”
Subsection 2 clause (a) sub-section 1 has been repealed as a result of this alteration to section 376. After sub-section 2 of section 376, a new sub-section “3” was added, which states that anyone who commits rape with a woman under the age of sixteen years shall be punished with rigorous imprisonment for a term not less than 20 years, and may extend to life imprisonment, implying that what he has done is thoroughly illegal and off-base, or in a legal sense, a reminder for that person’s natural life, as well as a fine or detention.

Also obligated to pay compensation, which must be reasonable and just in order to cover medical costs and victim rehabilitation. After sub-section 2 of section 376, a new sub-section “3” was added, which states that anyone who commits rape with a woman under the age of sixteen years shall be punished with rigorous imprisonment for a term not less than 20 years, and may extend to life imprisonment, implying that what he has done is thoroughly illegal and off-base, or in a legal sense, a reminder for that person’s natural life, as well as a fine or detention.

Also obligated to pay compensation, which must be reasonable and just in order to cover medical costs and victim rehabilitation. Furthermore, any payment made by the person who has been condemned under this clause must be made to the individual in issue (victim).

Amendments made in the Indian Evidence Act, 1872

Two sections of the Indian Evidence Act of 1872 are amended by the Criminal Amendment Act of 2018. The following are some of them:

A. Section 53A

• This section substitutes Sections 376AB, 376B, 376C, 376D, 376DA, and 376DB, which deal with proof of character or previous sexual experience that isn’t applicable in some circumstances.

B. 146th section

• When a witness is cross-examined, he may be asked any question that tends to answer the question hereinbefore referred to, in addition to the question hereinbefore referred to-
  a) Attempt to verify the validity.
  b) To figure out who he is and where he stands in life.
  c) To protect his reputation, harming his character, even if the answer does not directly or indirectly implicate him, could result in a penalty or forfeiture.
• 376AB, 376B, 376C, 376D, 376DA, and 376DB were substituted by section 376AB, 376B, 376C, 376D, 376DA, and 376DB.

Amendments made in CrPC

1. Section 173
   Subsection (1A) of this section was amended to read: “An offense under section 376AB, 376B, 376C, 376D, 376DA, and 376DB or section 376E of the Indian penal code shall be completed within two months.”
2. Section 374
   When an appeal is filed against a sentence given under Section 376, 376A, 376AB, 376B, 376C, 376D, 376DA, and 376DB, or Section 376E of the Indian penal code, the appeal shall be disposed of within six months of the date of filing.
3. Section 377
   When an appeal is filed against a sentence given under sections 376, 376A, 376AB, 376B, 376C, 376D, 376DA, and 376DB, or section 376E of the Indian penal code, the appeal shall be disposed of within six months of the date of filing.
4. Section 438
   After sub-section (3), a new sub-section (4) was added to Section 438 of the Code of Criminal Procedure, which states that nothing in this section applies to any case involving the arrest of a person on suspicion of having committed an offense under subsection (3) of Section 376, 376AB, 376DA, or 376DB of the Indian penal code.
5. Section 439
   After sub-section (a) (1), another provision was added to Section 439 of the CrPC, which states that “the high court and the session court shall, before granting bail to a person accused of an offense triable under sub-section (3) of Sections 376, 376AB, 376DA, 376DB, give notice of the applicant for bail to the public prosecutor within a period of 15 days from the date of receipt of such notice to the public prosecutor.” The presence of the informant or any person authorized by him is necessary during the hearing of the application for bail to the person under sub-section (3) of sections 376, 376A, 376DA, and 376DB, which was inserted after sub-section (1) of the CrPC.

Amendments made in POSCO Act

Section 42 of the POCSO Act, 2012 has been amended by the Criminal Amendment Act of 2018. Sections 376A, 376C, and 376D of the Indian penal code have been replaced with 376A, 376AB, 376B, 376C, 376D, 376DA, and 376DB of the Indian penal code.

Conclusion

In the wake of checking on various adjustments and recently remembered Sections for the IPC, CrPC, Indian Evidence Act, and POCSO Act, as may be obvious, the criminal amendment demonstration of 2018 is simply planned to safeguard women from offensive wrongdoing: sexual attack. As the unjust pace of sexual attacks has expanded, so has the number of people who are truly cruel. Most of the assault cases go unreported, and the absence of legitimate legitimacy, as well as cultural elements, make boundaries to the casualty’s admittance to justice. Nonetheless, subsequent to rolling out important improvements to these reformatory laws, the Government of India tries to give government assistance and a feeling of safety for all women, as it is essential considering ongoing cases, for example, the Kathua assault and Unnao assault cases, which have caused a lamentable circumstance for women in which women accept they are undependable even in their own homes, as the blamed is quite often a family member or a known individual of the person in question, so there is an outright need.

References:

1. https://www.legalserviceindia.com/legal/article-1527–an-analysis-of-criminal-law-amendment-act-2018.html
2. https://blog.ipleaders.in/comparison-rape-laws-criminal-amendment-act-2013/
3. https://www.lawctopus.com/academike/criminal-law-amendment/
4. https://prsindia.org/billtrack/the-criminal-law-amendment-bill-2013
5. https://blog.ipleaders.in/criminal-law-amendment-act-2018-2/
6. https://prsindia.org/billtrack/the-criminal-law-amendment-bill-2018#:~:text=In%20March%202013%2C%20Parliament%20passed,in%20cases%20of%20repeat%20offenders
7. https://mha.gov.in/sites/default/files/CSdivTheCriminalLawAct_14082018_0.pdf

This article is written by Arryan Mohanty, a 2nd Year Student student of Symbiosis Law School.

INTRODUCTION

India is one of the largest democracies in the world and in this country we follow the concept of the universal adult franchise which means a person above 18 years of age has a right to vote irrespective of their caste, colour, creed, religion, or gender. We elect our representative by giving a vote but what if we have to choose our representative among the persons with severe criminal records. In India, nowadays criminalization of politics becomes very common which means a person participating in an election is having a criminal record. This is the biggest irony out here where the ‘lawbreakers become the lawmakers’. This disrupts the roots of democracy where it is difficult to become even a peon with criminal records. On the other hand, people become ministers and represent the country with criminal records.

The number of politicians with criminal records is increasing day by day, which is a serious concern for the public. The data was provided by the Association of Democratic reform [ADR] reports in which it was stated that the elected Lok Sabha candidates in the year 2019 out of the 43% had criminal charges against them which is a nearly 26% increase concerning the elections of 2014.

The report by the ADR in collaboration with the national eye watch in which it was published that in the year 2009, 543 members were elected for Lok Sabha elections out of which 162 (30%) of them had criminal charges and 76 i.e 14% had severe criminal charges against them like murder, rape, kidnapping, etc. Also, in the 2014 Lok Sabha elections, 539 candidates were elected out of which 233 (43%) had criminal charges against them and 159 i.e 29% had serious criminal charges against them.

LAWS IN INDIA AGAINST THE CRIMINALISATION OF POLITICS

Some articles in our Indian constitution are against the criminalization of politics and those articles are

• ARTICLE 327
  Article 327 of the Indian constitution gives the right to the parliament to make provisions on the subject matter related to elections for either house of the parliament or for the legislature of a state._¹
• ARTICLE 102
  Article 102 of the Indian constitution deals with the disqualification of members from the elections of either house of the parliament on certain grounds which are mentioned under this article.²
• ARTICLE 191
  Article 191 of the Indian constitution also deals with the disqualification of members from the election but from the legislative assembly or legislative council of the state if they fall under the category mentioned under the article.³

EFFECTS OF CRIMINALISATION OF POLITICS

• AGAINST THE FREE AND FAIR ELECTIONS PRINCIPLE
  The candidates often use their muscle and money power which means they have the ability to finance their own elections and largely due to public image they try to gain votes. This demeans the principle of free and fair election as it limits the choice of electing a deserving candidate.
• AFFECTING GOOD GOVERNANCE
  The main issue is that lawbreakers become lawmakers, which undermines the democratic process’ ability to offer decent government. The structure of India’s state institutions and the quality of its elected representatives are reflected in these undesirable democratic tendencies.
• AFFECTING UPRIGHTNESS AMONG PUBLIC SERVANTS
  Corruption caused during elections due to the circulation of money during and after elections causes disruption in the working of public servants and thus, results in increasing corruption.
• CAUSES SOCIAL DISHARMONY
  Electing representatives who have a criminal record creates a bad precedent for the youth and also causes social disharmony and violence in society. This demeans the meaning of democracy in the eyes of the general public.

REASONS FOR CRIMINALISATION OF POLITICS

• LACK OF POLITICAL WILL
  Political parties don’t show any will or interest in curbing the criminalization of politics. Until now, efforts made towards this issue were made by the supreme court and the election commission of India. However, parliament must revise the Representation of the People (RPA) Act 1951⁴, which governs the disqualification of candidates who have been charged with serious crimes and have been found guilty in court.
• LACK OF ENFORCEMENT
  Making strict laws and regulations or passing judgment will not affect much until and unless implemented properly.
• NARROW SELF INTEREST
  Sometimes general public may focus on caste or religion criteria for casting vote and they may not be interested in checking the history or criminal record of the candidate. So, publishing criminal reports of the candidates is not enough to curb the criminalization of politics.
• USE OF MUSCLE AND MONEY POWER
  Candidates gain votes due to their muscle power and money power, despite having serious criminal records they use their identity and finance their election to gain votes. Furthermore, when all contesting candidates have criminal backgrounds, voters are sometimes left with no options.

CASE LAWS

UNION OF INDIA VS ASSOCIATION FOR DEMOCRATIC REFORMS AND ANR.
The association for democratic reforms filed a petition in the Delhi high court for the recommendations on how to make elections fairer, and transparent. The law commission produced some recommendations which are that the candidates should disclose their criminal history, educational qualifications, financial details, and other personal information on their websites. After this, the union of India challenged the petition in the supreme court of India that the high court voters did not have a right to such information. The court held that the right to know is a derived right from the right to freedom of expression and speech. Because such rights include the right to have opinions and collect information in order to be appropriately educated in formulating and distributing those opinions throughout the election process, the public has a right to know about candidates running for election. The Court elaborated on this argument by stating that a good democracy strives for an “aware citizenry,” and that any kind of misinformation or lack of information will result in a “uniformed citizenry,” rendering democracy a charade.⁵

PEOPLE’S UNION OF CIVIL LIBERTIES [PUCL] V. UNION OF INDIA
The people’s union of civil liberties [PUCL] challenged the validity of section 338 of the representation of people’s act, 1951 which says that a candidate is not allowed to disclose any personal information. The PUCL contended that it was a violation of Article 19(1)(a). the apex court held that the candidates should provide information about themselves to the voters. The basic information provided by the candidates can affect the decision of the voters. Furthermore, freedom of expression encompasses not just verbal and written communication but also voting. The expression of opinion through the final act of casting a ballot is part of the fundamental right of freedom of speech and expression under Article 19(1), even though the right to vote is not a fundamental right in and of itself. The apex court concluded that section 33B of the representation of people act, 1951 was unconstitutional.⁶

LILY THOMAS VS UNION OF INDIA
In this case, a writ petition was filed by the Lily Thomas and an advocate Satya Narain Shukla before the apex court for the purpose of challenging section 8(4) of the Representation of the people’s act which safeguards the convicted politicians from any kind of election disqualification based on pending appeals against their conviction in the appellate court. This petition was not allowed for 9 years and later, in July 2013 the supreme court finally passed a verdict in which it was held that the MP and MLA whether they are elected or not elected would be disqualified if they have criminal allegations against them by the trial court and the saving clause under section 8(4) will not be applicable.⁷

PUBLIC INTEREST FOUNDATION V. UNION OF INDIA
In this case, in the year 2011, the petition was filed by the BJP leader Ashwini Upadhyay and the NGO public interest foundation before the apex court to seek directions regarding the criminalization of politics and debarring them to contesting elections. The issue was whether the court can put any restriction on membership of parliament beyond article 102(a) to (d) and parliament’s legislation under Article 102(e). the court held that the debarring candidate to contest the election solely on the basis that they have a criminal record is wrong. The court directed them to fill out the form circulated by the election commission and the form must contain all the information. The candidate has to notify the party regarding criminal proceedings if he or she has against them while buying a ticket of a specific party. The political party has to update their website and to put regarding any criminal proceedings are pending against them and also make them publish in the newspapers and also to make huge publicity on electronic media.⁸

RECENT DECISION

The supreme court of India passed a judgment related to the criminalization of politics recently in February 2020 in which it was held that the political party has to update their websites regarding criminal history against the candidates and such information has to be published in even local and national newspaper. In October 2020, Bihar was the first election that followed the supreme court guidelines. This was done to preserve the purity of elections in the country and to provide voters with a fair choice to choose.

CONCLUSION

Till today what has been done regarding curbing the criminalization of politics has been done by the supreme court and the election commission. The parliament has to show some interest to make changes in the representation of people’s acts. The alone judiciary will not be enough effective in dealing with this issue.

In conclusion, the information regarding criminal history, financial authority, and educational qualifications of the candidates should be made available to the voters. So, that they can make the right choice and the elections conducted could be fair and transparent and the voters were given fair choice to choose candidates from them. Though information should be provided to the voters and it is important also but there should be a thin line between information provided to the voters and the rights of the candidates.

References:

1. The Indian constitution, 1950, art.327
2. The Indian constitution, 1950, art. 102
3. The Indian constitution, 1950, art. 191
4. The Representation of people act, 1951.
5. Union of India v. Association for democratic reforms and anr, (2002) 5 SCC 294.
6. People’s union of civil liberties V. Union of India, [WP (C) NO. 196/2001]
7. Lily Thomas v. Union of India, [WP (C) NO. 231/2005]
8. Public interest foundation V. Union of India, [WP (C) NO. 536 OF 2011]

This article is written by Prerna Pahwa, a student of Vivekananda Institute of Professional Studies, New Delhi.

ABSTRACT

The article seeks to discuss and elaborate on the crimes committed against women through the lens of the Indian Penal Code.

INTRODUCTION

Indian Penal Code is a comprehensive code that integrates and codifies the criminal law of India. The Code prescribes punishment for offenses committed within India. IPC was basically the brainchild of the English government. The first law commission of India¹, which was established by the Charter Act of 1833, steered the drafting of IPC, under the tutelage of Thomas Macaulay in 1834. The drafting of the code was completed in 1850 and was presented to the Imperial Legislative Council in 1856 which was ultimately enacted by the Imperial Council on 6th October 1860. The Criminal Code was initially enforced only upon selected Indian States. However, after the Independence of India, the ambit of the act was gradually widened and it covered the entire Indian territory except for the State of Jammu and Kashmir, wherein, after the Jammu and Kashmir Reorganization Act 2019, the IPC came into force. The IPC is divided into 23 chapters, spanning 511 exhaustive sections. Each Chapter of IPC deals with a separate category of offense in the most elaborative and fastidious fashion.

Women are the building blocks of any society. They are synonymous with empathy, motherhood, empowerment, and development. However, like the men and children and other sections of society, the women too need the constitutional and legislative safeguard to protect their interests. Women, as a quintessential section of Indian society, have been vulnerable to myriad crimes. The patriarchal mindset of Indian society coupled with inequity and physical fragility, have jeopardized the interests of women.

IPC serves as an effective tool to serve the interests of all the sections of the society, especially the women, and thereby in that furtherance, categorically lays down descriptive code to punish the people for their crimes. It addresses some of the most rudimentary and fundamental issues concerning the safety of women in everyday life in length and breadth.

PROVISIONS OF IPC THAT DEAL WITH CRIME AGAINST WOMEN²

In order to proceed further, it is to be noted that Section 10 of IPC describes ‘women’ as female human beings of any age group.

1. OFFENCES AFFECTING LIFE

• Section 304B of IPC: Dowry Death.
  It prescribes that if the death of a woman is caused within 7 years of marriage due to bodily injury or burns and it could be shown that soon before her death she was subjected to cruelty by her husband or his relative, then such death would be deemed as dowry death and the punishment for the same would be imprisonment for a minimum term of 7 years, which could be extended to imprisonment for life.

2. OFFENCES INVOLVING MISCARRIAGE AND INJURY TO THE UNBORN BABIES

• Section 313:
  Miscarriage without Consent: Causation of miscarriage of a woman without her consent and good faith is punishable with a term of up to 10 years or with a fine, or both
• Section 315:
  Any act done explicitly and not done in good faith, leading to the death of a child after birth or preventing it from being born alive is punishable with a term of up to 10 years and a fine.

3. OFFENCES CAUSING HURT

• 326A: Voluntary Causing Of Hurt With The Use Of Acid
  Voluntary causation of grievous hurt by throwing/administering acid, that leads to permanent or partial deformity/ damage to any body part of the victim is punishable with a minimum term of 10 years which could extend up to life imprisonment and with fine
• 326B: Attempting To Throw Acid
  Any attempt to throw or administer acid to any person leading to permanent or partial deformity of any body part is punishable with a term ranging from 5 to 7 years and with a fine.

4. OFFENCES INVOLVING USE OF CRIMINAL FORCE AND ASSAULT

• Section 354: Outraging Modesty Of Women
  Intentional use of criminal force (assault) to outrage or likely to outrage the modesty of women is punishable with a term not less than 1 year, which may extend up to 5 years, and a fine.
• Section 354A: Sexual Harassment Of Woman
  Sexual harassment of women by physically touching her, making sexually colorable remarks/ expressions, showing pornography against her will, demanding sexual favors is punishable with a term ranging from 1 year to 3 years or fine or both.
• Section 354B: Use Of Force To Disrobe Women
  Use of criminal force to disrobe a woman or compel her to be naked is punishable with a term ranging from years to 7 years or fine or both.
• Section 354C: Punishment For Voyeurism
  To capture an image or watch women engaging in the private act where women would reasonably expect privacy is a punishable offense wherein the offender is liable with a term of up to 3 years of fine or both.
• Section 354D: Punishment For Stalking A Woman
  Stalking a woman by contacting or following her, or attempting to develop personal interaction against the will of the woman, except in cases of discharging legal or public duty, is punishable with a term of up to 3 years and a fine, which may extend up to 5 years.

5. OFFENCES RELATED TO ABDUCTION/KIDNAPPING

• Section 366A and Section 366B
  Both these sections deal with the procuration of a minor girl under the age of 18 years from any part of India or abroad respectively for the purpose of forcing her into illicit intercourse with another person is punishable for a term of up to 10 years and with a fine.
• Section 370
  Trafficking of a person by means of force, fraud, abduction, inducement, threat, or force for the purpose of exploitation of the victim with or without its consent is punishable for a term ranging from 7 years up to life imprisonment along with a fine, depending upon the grievousness of the situation and crime.
• Section 372 and Section 373
  Selling and buying of minors respectively for the purposes of above Sections, under the age of 18 years for the purpose of prostitution is punishable with imprisonment for a term of up to 10 years and fine.

6. OFFENCES INVOLVING SEXUAL CRIMES

• Section 375: Definition Of Rape
  This section defines rape. Rape is committed if a man applies his mouth or penetrates his penis/ any object or into mouth, vagina, urethra, or anus; or manipulates any body part of a woman so as to facilitate penetration against the will of the woman or with her consent by coercing/ putting her under fear/ deceiving her to be her lawful husband or under intoxication or when she is under 18 years of age.
• Section 376: Punishment For Rape
  Rape is punishable with a minimum term of at least 10 years and with a fine that may extend up to life imprisonment. Rape by police officers, public servants, members of armed forces, jail staffs, hospital staff, staff of remand home, persons exercising fiduciary relationship, is punishable with rigorous imprisonment of five to ten years, extending to imprisonment for natural life along with fine.
• Section 376A: Punishment For Rape Resulting In Death
  This Section deals with punishment for causing death or persistently vegetative state of the victim due to rape. The offender will be liable with imprisonment of a minimum of 20 years which shall extend up to life imprisonment or even with death.
• Section 376AB
  Raping a woman under 12 years of age shall result in imprisonment of at least 20 years and with a fine, which may extend up to life imprisonment or with death.
• Section 376B
  Rape by husband upon his wife during the period of the decree of separation shall be punished with a term of at least 2 years, extendable up to 7 years, and with a fine.
• Section 376C
  Rape committed by people in authority, public servants, or by those in a fiduciary relationship, or by management of a hospital or by jail staff, shall be liable to be punished with imprisonment of a minimum of 5 years, which may extend up to 10 years, and with fine.
• Section 376D: Prescribes Punishment For Gangrape
  Rape committed by two or more men acting in furtherance of common intention shall be punishable with imprisonment of not less than 20 years which may extend up to life imprisonment.
• Section 376DA
  Rape of girls under sixteen years of age is punishable with imprisonment of a minimum of twenty years extending to imprisonment for natural life along with a fine.
• Section 376E: Prescribes Punishment For Repeat Offenders
  A person committing rape, who has been previously convicted of rape under Section 376, 376A-D, shall be punishable with imprisonment of life.

8. OFFENCES INVOLVING COMMITMENT OF CRUELTY BY HUSBAND UPON HIS WIFE

• Section 498A
  Cruelty includes the acts of harassment by the husband or his relative that is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb, or health; or any unlawful demand for any property or valuable security. The husband or his relative who subjects such women to cruelty shall be punished with imprisonment for a term which may extend to three years and with a fine.

CONCLUSION

Even in this 21st century, where the technological advancements and the cogent changes in the perception of the moral standards of Indian society have revolutionized our way of life, women continue to be subjected to multitudes of crimes every day. IPC as a criminal code provides the basic framework for legislative penal actions. It serves as a foundation and paves way for the introduction and enactment of specific women-centric legislative pieces to exhaustively address the issues of women and chalk out the way forward.

References:

1. Historical Introduction to IPC (PDF)
2. https://legislative.gov.in/sites/default/files/A1860-45.pdf

This article is written by Riya Ganguly, 2 nd year BBA LLB student at Bharati Vidyapeeth New Law College, Pune.

Abstract – The article will make the readers conscious of the heinous act, i.e., the domestic violence in India. The article talks about the rising cases of domestic violence during the lockdown in West Bengal and the role of the West Bengal Women’s Commission in curbing such menace.

INTRODUCTION

In India, domestic violence against women is dominantly prevalent, that is tried to conceal. We live in a patriarchal society where one in every three women is subject to domestic violence. According to a research, 45 percent of women in India are subjected to violence by their spouses. Domestic abuse is a largely unseen crime that occurs mostly behind closed doors.

During the lockdown, West Bengal saw an increase in domestic violence cases. Many women were subjected to domestic violence and physical abuse. Women had previously faced physical assaults, but the lockdown had exacerbated and worsened the situation.

Since the imposition of lockdown, more than seventy domestic violence cases have been reported to the commission. The number of complaints received during this period was higher than in the months preceding the lockdown.

Analysis

According to the state women’s commission, domestic violence cases in West Bengal have increased during the lockdown. Since the lockdown was imposed, the commission has witnessed a surge in reports of domestic violence. The complaints came from all over the state, in both rural and urban areas, including Kolkata.

National and International laws

Protection of Women against Domestic Violence Act 2005

 This Act was promulgated to protect women against physical, sexual, and emotional abuses, all of which are widely specified under the Act. The Act not only talks about the protection of married women, but also women who are in live-in relationships with men. It is a must that woman should be free from all forms of violence. 

Section 498 of IPC

“Whoever takes or entices away from any woman who is and whom he knows or has reason to believe is the wife of another man, from that man, or any person caring for her on behalf of that man, with the intent that she may have illicit intercourse with any person, or conceals or detains any such woman with that intent, shall be punished with imprisonment of either description for a period which may extend to two years, or with fine, or with both.”

Dowry prohibition Act, 1961

 Anyone who provides, accepts or even asks dowry can be imprisoned for a half-year (i.e., six months) or fined up to Five Thousand Rupees under this rule.

CEDAW

CEDAW adopts a three-dimensional and practical approach based on the concept of substantive equality or gender equality. This goes beyond equal opportunity and legal language to consider the current state of women’s lives as the actual litmus test for whether or not equality has been attained.

The media still does not play an influential role in minimizing domestic violence against women. They fail to cover the incidents and spread those to the mass, taking place every day in the marginalized communities. Because the media serves as society’s eyes, ears, and limbs, it has the potential to significantly reduce violence against women.

ROLE OF MEDIA IN COVERING THESE ISSUES

The role of media should be to expose the shades of malice and spread awareness about the rights of the women. The media needs to be aware of the violence directed against women. Indeed, many women have said that the media’s coverage of an assault or other form of brutality resembled a second attack due to the insensitivity with which they used images, published names, and other invasions of privacy.

The media’s involvement in the issues of violence against women is essential both in terms of how it covers the matter and in terms of how it may be utilized to assist activists and governments in raising awareness and implementing necessary programme.

In general, the media lacks in instilling an extensive awareness of domestic violence in the public. As a result, many scholars believe that media portrayals of domestic violence are part of a hegemonic patriarchal worldview that obscures both the issue of domestic violence and the underlying social processes that generate it.

Case Laws

S.R Batra and Anr v. Smt. Taruna Batra

 Referring to Sec17(1), 4Sec2(S) Of Domestic Violence Act, the Supreme Court held that:

Only the wife has the right to live in a joint household.

A house owned by a husband, a house rented by a husband, or a house that belongs to a husband’s joint family is considered a shared home.

The judgement further noted that, under section 19(1)(f) of the act, the claim for alternative accommodation may only be raised against the spouse and not against his in-laws or other relatives.

As a result of the facts of the case, it was determined that the wife could not claim a right of residency in the property belonging to her mother-in-law.

Dr Velusamy v.  Patchaiammal

The court noted that the Act’s definition of “domestic relationship” in section 5 sec 2(f) includes not just marriage but also a relation “like marriage” in this case.

Because the term “relationship like marriage” isn’t defined in the Act, the court clarified its meaning. According to the court, not all living relationships qualify as “relationships like marriage,” which must meet the following criteria. In addition, the parties must have lived together in a “shared household.”

The couple must exhibit themselves as husband and wife to the rest of society. To marry, they must be of legal age. To engage in lawful marriage, they must meet all other requirements, including being unmarried.

Conclusion

The government must develop a comprehensive strategy and allocate sufficient funds to provide support services to survivors, ensure the application of domestic violence laws, and conduct public awareness campaigns emphasizing that domestic violence is a crime and that the state will take strict action against it. The judicial system must become more active and effective in bringing justice to victims and sufferers.

This blog is written by Shruti Bose, studying at Christ (Deemed to be University), Lavasa

Edited by Deeksha Arora.

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