Some Major Relief For Rape Victims

Government has taken a major step to set right the procedures causing agony and trauma to a woman who has already undergone a lot of pain and ordeal because of the brutal act of a man's insensitivities towards her. This is aimed to dispose a quick justice for the victim and to save her from all sorts of harassment and shame.

The Code of Criminal Procedure (Amendment) Act 2008 has come in to force with effect from 31st December 2009. It provides major some relief to rape victims.

In section 26 of the principal Act, in clause (a), the following provision shall be inserted, namely:- Provided that any offence under section 376 and sections 376A to 376D of the Indian Penal Code shall be tried as far as practicable by a Court presided over by a woman. 'Thus trial of rape case will now be conducted, as for as practicable, by a woman judge.'

In section 24 of the principal Act, in sub-section (8), the following proviso shall be inserted, namely:- Provided that the Court may permit the victim to engage an advocate of his choice to assist the prosecution under this sub-section. 'Thus victim may engage an advocate of his /her choice.' This option is available to the victims of other offences also.

In section 157 of the principal Act, in sub-section (1), after the proviso, the following proviso shall be inserted, namely:- Provided further that in relation to an offence of rape, the recording of statement of the victim shall be conducted at the residence of the victim or in the place of her choice and as far as practicable by a woman police officer in the presence of her parents or guardian or near relatives or social worker of the locality. 'Thus statement of rape victim shall be recorded at her residence or at a place of her choice.’

After sub-section (1), the following sub-section shall be inserted, namely:- "(1A) The investigation in relation to rape of a child may be completed within three months from the date on which the information was recorded by the officer in charge of the police station." ‘Thus the investigation procedure is made time bound.’

Whether the report of medical examination of the woman has been attached where investigation relates to an offence under section 376, 376A, 376B, 376C or 376D of the Indian Penal Code. 'Thus it is binding to attach medical report along with police report in all rape cases.'

Provided that when the inquiry or trial relates to an offence under sections 376 to 376D of the Indian Penal Code, the inquiry or trial shall, as far as possible, be completed within a period of two months from the date of commencement of the examination of witnesses. 'Thus trial is also made time bound.’

If amendment so made is implemented in its letter and spirit, the plight of rape victims can be reduced to some extent. With this write-up we intend to make people aware of the same and that they should not hesitate in exercising their rights as per the provisions of law, if need be.

RIGHTS OF PERSON ARRESTED

This incident happened with one of my close friend few years back. He was driving from Lucknow to Kanpur in his car. After 40 Kms. or so a boy of around 10 years of age suddenly ran from one side of road and came in front of car. My friend applied brake but car hit the boy and he died on the. My friend was in state of shock, police came and he was arrested for charges under section 304A of Indian Penal Code. With in no time he was behind the bars without any fault of his own. Rest is a nightmare for him. This thing can happen to anyone at any time.

Criminal Law guarantees some rights to persons arrested .Apex Court has already issued comprehensive guidelines regarding how the arrest is made in D.K. Basu case. These guidelines are reproduced here.

• The police personnel carrying out the arrest and handling the interrogation of the arrestee should wear accurate, visible and clear identification and name tags with their designations. The particulars of all such police personnel who handle interrogation of the arrestee must be recorded in a register.
• That the police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest and such memo shall be attested by at least one witness, who may either be a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be countersigned by the arrestee and shall contain the time and date of arrest.
• A person who has been arrested or detained and is being held in custody in a police station or interrogation centre or other lock-up, shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place, unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee.
• The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside the district or town through the Legal Aid Organization in the District and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest.
• The person arrested must be made aware of this right to have some one informed of his arrest or detention as soon as he is put under arrest or is detention.
• An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of the next friend of the person who has been informed of the arrest and the names and particulars of the police officials in whose custody the arrestee is
• The arrestee should, where he so requests, be also examined at the time of his arrest and major and minor injuries, if any present on his/her body, must be recorded at that time.
• The “Inspection Memo” must be singed both by the arrestee and the police officer effecting the arrest and its copy provided to the arrestee
• The arrestee should be subjected to medical examination by a trained doctor every 48 hours during his detention in custody by a doctor on the panel of approved doctors appointed by Director, Health Services of the State or Union Territory concerned. Director, Health Services should prepare such a panel for all tehsils and districts as well
• Copies of all the documents including the memo of arrest, referred to above, should be sent to Illaqa Magistrate for his record
• The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation
• A police control room should be provided at all district and State headquarters, where information regarding the arrest and the place of custody of the arrestee shall be communicated by the officer causing the arrest, within 12 hours of effecting the arrest and at the police control room it should be displayed on a conspicuous notice board.

Knowledge of these guidelines will be very useful in the time of need. You may insist upon contacting your lawyer before giving any statement to police. Production before Magistrate within 24 hours is mandatory. So try for the best but be ready for the WORST.

Right of Private Defense: Scope Widened

If someone tries to snatch my briefcase or bag, what can I do to protect my Property? If someone intrudes in to my house and tries to molest some female member or tries to abduct me or my family member, can I shoot him or inflict upon him some fatal injury to protect us? These are some common questions that often sweep through our mind and always create great amount of confusion within us. Honourable Supreme Court has cleared the confusion on this issue of right of private defense. Now we can be braver and answer the crooks in their own language. Honourable Supreme Court ,in its latest judgment dated 15.01.2010 ,has widened the scope of right to private defense. Court after discussing various judgments crystallize 10 points to clear doubts regarding right to private defense.

1. Self-preservation is the basic human instinct and is duly recognized by the criminal jurisprudence of all civilized countries. All free, democratic and civilized countries recognize the right of private defense within certain reasonable limits.
2. The right of private defense is available only to one who is suddenly confronted with the necessity of averting an impending danger and not of self-creation.
3. A mere reasonable apprehension is enough to put the right of self defense into operation. In other words, it is not necessary that there should be an actual commission of the offence in order to give rise to the right of private defense. It is enough if the accused apprehended that such an offence is contemplated and it is likely to be committed if the right of private defense is not exercised.
4. The right of private defense commences as soon as a reasonable apprehension arises and it is co terminus with the duration of such apprehension.
5. It is unrealistic to expect a person under assault to modulate his defense step by step with any arithmetical exactitude.
6. In private defense the force used by the accused ought not to be wholly disproportionate or much greater than necessary for protection of the person or property.
7. It is well settled that even if the accused does not plead self-defense, it is open to consider such a plea if the same arises from the material on record.
8. The accused need not prove the existence of the right of private defense beyond reasonable doubt.
9. The Indian Penal Code confers the right of private defense only when that unlawful or wrongful act is an offence.
10. A person who is in imminent and reasonable danger of losing his life or limb may in exercise of self defense inflict any harm even extending to death.

As these guidelines are issued by Apex Court no further clarification or comment is required. These guidelines are very important for general public and legal fraternity as well. So, be brave and face criminals and answer them in their own language.

Get Set Go : Indian Criminal Law

Every time we park our car in a no parking zone or we let a cheque bounce that has been issued by us, we fall under the ambit of criminal law. Criminal law touches our life every now and then. We face criminal law in various capacities. Sometimes seeking justice as a victim, sometimes submitting before law as an accused, sometimes helping law as a witness and sometimes facing punishment as a convict. As we all know, first and most important law in India is Constitution of India which is source of all laws. Constitution Of India guarantees some rights and protection to all it’s subjects.

As a victim, accused, witness or even as a convict, we have got some rights and protection as guaranteed by Constitution. All the laws have provisions as provided in Constitution. During my work as prosecutor my first hand experience is that there is very low level of awareness regarding criminal law in general, and right & protection available under various laws. The awareness level is pretty low even among the so called upper class and upper middle class strata of the society, what to say about masses?

Upper class society can afford best of the legal advice but worst victim are weaker section of the Society who cannot afford costly legal advice. Basic idea behind this forum is to spread knowledge and awareness about criminal justice system among the people. Law is a very wide field there are Acts, (more than 4000 central and local Acts) then Rules, then procedural laws, substantive laws, amendments and judicial pronouncements on various issues. Mind boggling !! Isn't it ?

Here is one Golden Rule. It is not important to know what the law is but it is important to know where the law is. No one can master all laws and procedures etc. and every topic cannot be posted on the forum by me alone. Thus I request you to be interactive and post your question and I also request law students and legal experts to join the Court Room and spread the awareness regarding criminal justice system among the masses.