Criminal Law Update: January- June 2016
1. Crime Against Foreigner and Domestic Tourist: The Ministry of Tourism does not compile the data regarding crime against foreign or domestic tourists. However, the National Crime Records Bureau (NCRB), Ministry of Home Affairs has started collecting data on crime against foreign tourists since 2014. The total numbers of cases registered under crime against foreign tourists were 384 during 2014. The steps taken by Ministry of Tourism to ensure the safety and security of tourists including foreign tourists are as below:
(i) Toll Free Helpline: The Ministry of Tourism has launched the 24×7 Toll Free Multi-Lingual Tourist Helpline in 12 International Languages including Hindi & English on 8.2.2016.
TOURIST HELPLINE FOR DOMESTIC & INTERNATIONAL TOURIST
(ii) Adoption of code of conduct for Safe Tourism: which should contains a set of guidelines to encourage tourism activities to be undertaken with respect to basic rights like dignity, safety and freedom from exploitation of both tourists and local residents, in particular women and children.
(iii) Advertise the steps being taken: All the Chief Ministers of the State Governments and Administrators of Union Territory Administrations have been asked to take immediate effective steps for ensuring a conducive and friendly environment for all tourists and also request them to publicize the steps being taken/proposed to be taken to increase the sense of security amongst the present/prospective visitors and also to counter the negative publicity, if any.
(iv) TFSO: Grant of Central Financial Assistance to the State Governments of Rajasthan, Uttar Pradesh and Andhra Pradesh for setting up of Tourist Facilitation and Security Organization (TFSO) on a pilot basis.
(v) Travel Advisory on Incredible India website: Ministry of Tourism posts an advisory on its website www.incredibleindia.org.
2.Juvenile Justice Act: Juvenile Justice (Care and Protection of Children) Act 2015 has become enforceable from January 15, 2016. The Juvenile Justice Act, which allows children, aged 16 to 18 years and in conflict with law to be tried as adults in cases of heinous offences. The term “heinous crime” as defined under the Act as includes offences for which the minimum punishment under IPC or any other law for time being in force is imprisonment for 7 years or more.
3. Writ Petition against Juvenile Justice Act: A writ Petition filed in the Supreme Court challenging the Juvenile Justice (Care and Protection of Children) Act, 2015 was filed before the Chief Justice’s Bench. The PIL filed by Congress leader and Activist Tahseen Poonawalla in public interest submitted that the new Act seeks to repeal and replace the existing Juvenile Justice (Care and Protection of Children) Act, 2002 on the ground it is unreasonable, arbitrary and in violation of article 14 of the Constitution of India. The petition seeks to challenge the fictional classification of 16-18 years on the basis of alleged degree of crime committed by them.
4. Mercedes Hit and Run Case: A Delhi court in famous Sidharth Sharma’s case (“Deceased Victim”) sought response of Delhi police on a plea of a teenager, who allegedly ran over a 32-year-old marketing executive while driving his father’s Mercedes. Challenging the Juvenile Justice Board’s (“JJB”) order saying the accused pleaded against the order to try him as an adult. The JJB had passed the order on the police’s plea seeking transfer of the case to trial court to try the accused as an adult.
The Law Says: It is the first of its kind case since the amendment in the Juvenile Justice (Care and Protection of Children) Act 2015 (“Amended Act”), which allowed the Board to transfer cases of heinous offences by children to the session’s court. As per the section 2(33) of the Act, “heinous offences” include offences for which minimum punishment under Indian Penal Code or any other law for the time being in force is imprisonment for seven years or more. The police had on May 26 charge sheeted the juvenile in JJB for culpable homicide not amounting to murder which entails a maximum of 10 years jail. Initially, a case under IPC section 304 A was lodged against him but later he was booked for the alleged offence of culpable homicide not amounting to murder and sent to the reform home. Special Public Prosecutor Atul Shrivastava said as per the amended provisions of the Amended Act, the session’s court cannot send back the case to the JJB and if it thinks that the boy should not be tried as an adult, it has to try the case itself by acting as the board’s presiding officer.
Police had said in its charge sheet that the boy had fatally run over victim Deceased Victim with his father’s Mercedes when deceased victim while he was trying to cross a road near the accident site. The final report was filed for alleged offences under IPC sections 304 (culpable homicide not amounting to murder), 279 (driving on a public way so rashly or negligently as to endanger human life) and 337 (causing hurt by an act which endangers human life) against him. The Board had on April 26 granted bail to the youth who sought the relief to appear in entrance examinations. The driver and the boy’s father, who was also arrested earlier, were granted bail by the court. The youth had appeared before a Delhi court to surrender and had moved a bail plea, which was rejected, on the ground that it was a matter of JJB. He was then produced before the board.
The Law Says: Section 6 of the JJB says about the Powers of Juvenile Justice Board- Where a Board has been constituted for any district , such Board shall, notwithstanding anything contained in any other law for the time being in force but save as otherwise expressly provided in this Act, have power to deal exclusively with all proceedings under this Act relating to juvenile in conflict with law.
5. Online FIR: An e-FIR can be filed only for cognisable offences like murder, rape, dowry death, kidnap, etc. In these cases the police can make the arrest without the court order. In non-cognisable offences, like assault, cheating, stalking etc., only a complaint can be filed online. The police can later escalate it into an FIR after seeking permission from the Magistrate. Some states allow for online submission of FIR/complaint- Delhi, UP, Tamil Nadu.
When you approach the police station, you are required to file an First Information Report (FIR) or a complaint. This document record’s the complainant’s perspective on the crime committed. FIRs can be lodged by the person against whom the offence is committed, by the person who knows that the offence has been committed, or by the person who has seen the commissioning of an offence. A complaint is an allegation made orally or in writing that some person (whether known or unknown) has committed an offence. A complaint is addressed to a Magistrate. The procedure for filing an FIR is mentioned under Section 154 of Criminal Procedure Code, 1973. Usually one needs to visit the police station to file a complaint or an FIR.
FIR is the earliest and the first information of a cognizable offence recorded by an officer-in-charge of a police station. It sets the criminal law in motion and marks the commencement of the investigation, which ends up with the formation of opinion under section 169 or 170 Cr.PC, as the case may be, and forwarding of a police report under section 173 CrPC. It is quite possible and it happens not infrequently that more information than one are given to a police officer-in-charge of a police station in respect of the same incident involving one or more than one cognizable offences. In such a case he need not enter every one of them in the station house diary and this is implied in section 154 CrPC. All other information made orally or in writing after the commencement of the investigation into the cognizable offence disclosed from the facts mentioned in the first information report and entered in the station house diary by the police officer or such other cognizable offences as may come to his notice during the investigation, will be statements falling under section 162 Cr.PC.
What you will do when police officer refuse to register FIR
When a police officer-in-charge of a police station or any other police officer, acting under the directions of the officer-in-charge of police station refuses to register information, any person aggrieved by such refusal may send in writing and by post, the substance of such information disclosing a cognizable offence, to the Superintendent of Police under section 154(3) or to the Magistrate concerned under section 156(3) of the CrPC.
Punishment for giving false information.
Punishment for giving false information to the police is dealt with by sections 182, 203 & 211 of IPC. Even if such information is not reduced to writing under Section 154 (1) of CrPC, the person giving the false information may nevertheless be punished for preferring a false charge under section 211 of IPC. A police officer refusing to enter in the diary a report made to him about the commission of an offence, and instead making an entry totally different from the information given, would be guilty under Sections 166A and 177 of IPC.
6. Proposal to amend the Indian Penal Code to make definition of Rape Gender Neutral: A PIL has been filed in the High Court at Bombay seeking orders to put an end to harassment faced by eunuchs and ensuring that they are able to secure voter’s id cards and passports. The PIL filed by a Navi Mumbai-based organization ‘Salvation of Oppressed Eunuchs’ and three eunuchs from Virar. The petitioners said that eunuchs are the target of physical abuse. The PIL said a major problem faced by the community is lack of identity and residential proof. The PIL has urged the court to order the state to carry out a survey about the conditions of eunuchs. The demands in the PIL include changing the definition of “rape” in the IPC to include transgenders and transsexuals and extend the protection of the Atrocities Act to eunuchs. The PIL has asked for medical certificates to be issued to eunuchs so that qualified surgeons can carry out castrations.
As per the report of Justice J.S Verma Committee Report highlighted that all sexual identities including sexual minorities needs to be protected which includes transgender hence it is necessary to make the definition of rape ‘gender-neutral’ and the same was still under consideration by the Union Government. The PIL demands that eunuchs across the country, who number about 19 lakh, should get voter identity cards, should be treated as a minority community, and get benefits and legal protection as such. The atrocities and crimes committed against eunuchs should be taken seriously and the culprits should be punished. The PIL states, adding that even passing derogatory remarks against them should be made a punishable offence.
The petition had further sought amendment of sections 355 (Assault or criminal force with intent to dishonour person, otherwise than on grave provocation: Whoever assaults or uses criminal force to any person, intending thereby to dishonour that person, otherwise than on grave and sudden provocation given by that person, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both) and section 377 (Unnatural offences: Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. Explanation: Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section) of the Indian Penal Code to facilitate the inclusion of transsexuals and eunuchs in the definition of the term ‘rape’.
The state government had already informed the Bombay high court hearing the PIL that eunuchs could not be covered under the Scheduled Caste/Scheduled Tribe (SC/ST) Act.
In other developments on the issue Supreme Court had declined to entertain a petition seeking a direction to the Centre to provide reservation in Parliament and state assemblies for eunuchs. The apex court said the issues raised in the PIL filed by Sonam Singh, a eunuch from Rajasthan, can be taken up at the government level.