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Following
is the text of Criminal Law
(Amendment) Ordinance, 2013 promulgated
by the President on February 3, 2013.
THE
CRIMINAL LAW (AMENDMENT) ORDINANCE, 2013
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Promulgated
by the President in the Sixty-fourth Year of the Republic of India.
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An
Ordinance further to amend the Indian Penal Code, the Code of Criminal
Procedure, 1973 and the Indian Evidence Act, 1872.
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WHEREAS a
Bill further to amend the Indian Penal Code, the Code of Criminal Procedure,
1973 and the Indian Evidence Act, 1872 was introduced in the House of the
People and referred to the Department related Parliamentary Standing
Committee on Home Affairs for examination and report which is pending;
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AND
WHEREAS Parliament is not in session and the President is satisfied that
circumstances exist which render it necessary for him to take immediate
action to give effect to the provisions of the said Bill with certain
modifications;
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NOW,
THEREFORE, in exercise of the powers conferred by clause (1) of article 123
of the Constitution, the President is pleased to promulgate the following
Ordinance:––
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CHAPTER I
PRELIMINARY
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1. (1)
This Ordinance may be called the Criminal Law (Amendment) Ordinance, 2013.
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Short
title and commencement.
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(2)
It shall come into force at once.
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CHAPTER
II
AMENDMENTS
TO THE INDIAN PENAL CODE
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Amendment
of section 100.
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2. In the
Indian Penal Code (hereafter in this Chapter referred to as the Penal
Code), in section 100, in the clause Secondly, after the words
“grievous hurt”, the words “including the offence of grievous hurt
punishable under section 326A” shall be inserted.
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45 of 1860.
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Insertion
of new section 166A.
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3. After section 166 of the Penal Code, the
following section shall be inserted, namely:––
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Public
servant disobeying direction under law.
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“166A.
Whoever, being a public servant,––
(a)
knowingly disobeys any direction of the law which prohibits him from requiring the attendance at any
place of any person for the purpose
of investigation into an offence or
any other matter, or
(b)
knowingly disobeys, to the prejudice of any person, any other direction of
the law regulating the manner in which he shall conduct such investigation,
or
(c)
fails to record any information given to him under sub-section (1)
of section 154 of the Code of Criminal Procedure, 1973 and in particular in
relation to cognizable offence punishable under section 354, section 354A,
section 354B, section 354C, sub-section (2) of section 354D, section 376, section 376A, section 376B, section 376C, section 376D or section 376E,
shall be
punished with imprisonment for a
term which may extend to one year or with fine or with both.”.
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2 of
1974.
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Insertion
of new sections 326A and 326B.
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4. After
section 326 of the Penal Code, the following sections shall be inserted,
namely:––
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Voluntarily
causing grievous hurt by use of
acid, etc.
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‘326A.
Whoever causes permanent or partial damage or deformity to, or burns or
maims or disfigures or disables, any
part or parts of the body of a person or causes grievous hurt by throwing
acid on or by administering acid to that person, or by using any other
means with the intention of causing or with the knowledge that he is likely
to cause such injury or hurt, shall be punished with imprisonment of either
description for a term which shall not be less than ten years but which may
extend to imprisonment for life and with fine which may extend to ten lakh
rupees:
Provided that any fine imposed under this
section shall be given to the person on whom acid was thrown or to whom
acid was administered.
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326B. Whoever throws
or attempts to throw acid on any person or attempts to administer acid to
any person, or attempts to use any other means, with the intention of
causing permanent or partial damage or deformity or burns or maiming or
disfigurement or disability or grievous hurt to that person, shall be
punished with imprisonment of either description for a term which shall not
be less than five years but which may extend to seven years, and shall also
be liable to fine.
Explanation
1.–– For the purposes of
section 326A and this section, “acid” includes
any substance which has acidic or corrosive character or burning
nature, that is capable of causing
bodily injury leading to
scars or disfigurement or
temporary or permanent disability.
Explanation
2.–– “Permanent or partial damage” includes deformity, or maiming, or
burning, or disfiguring, or disabling any part or parts of the body of a
person.
Explanation 3.––
For the purposes
of section 326A and this section,
permanent or partial
damage or deformity shall not be required to be irreversible.’.
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Voluntarily
throwing or attempting to throw acid.
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5. In section 354 of the Penal Code, for the words
“shall be punished with imprisonment of either description for a term which
may extend to two years, or with fine, or with both”, the words “shall be
punished with imprisonment of either description for a term of one year
which may extend to five years and shall also be
liable to fine”
shall be substituted.
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Amendment
of section 354.
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6. After
section 354 of the Penal Code, the following sections shall be inserted,
namely:––
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Insertion
of new sections 354A, 354B, 354C and 354D.
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‘354A. (1) The following acts or
behaviour shall constitute the offence of sexual harassment––
(i) physical contact and advances
involving unwelcome and explicit sexual overtures; or
(ii) a demand or request for sexual favours; or
(iii) making sexually coloured remarks; or
(iv) forcibly showing pornography; or
(v) any other unwelcome physical, verbal or non-verbal
conduct of sexual nature.
(2) Any person who commits the
offence specified in clause (i) or clause (ii) of sub-section
(1) shall be punished with rigorous imprisonment which may extend to
five years, or with fine, or with both.
(3)
Any person who commits the offence specified in clause (iii) or
clause (iv) or clause (v) of sub-section (1) shall be
punishable with imprisonment of either description that may extend to one
year, or with fine, or with both.
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Sexual
harassment and punishment for sexual harassment.
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Assault
or use of criminal force to woman with intent to disrobe.
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354B.
Whoever assaults or uses criminal force to any woman or abets such act with
the intention of disrobing or compelling her to be naked in any public
place, shall be punished with imprisonment of either description for a term
which shall not be less than three years but which may extend to seven
years and with fine.
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Voyeurism.
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354C.
Whoever watches, or captures the image of, a woman engaging in a private
act in circumstances where she would usually have the expectation of not
being observed either by the perpetrator or by any other person at the
behest of the perpetrator shall be punished
on first conviction with
imprisonment of either
description for a term which shall not be less than one
year, but which may extend to three years, and shall also be liable to
fine, and be punished on a second or subsequent conviction, with
imprisonment of either description for a term which shall not be less than
three years, but which may extend to seven years, and shall also be liable
to fine.
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Explanation
1.–– For the purposes of this
section, “private act” includes an act of watching carried out in a place
which, in the circumstances, would
reasonably be expected to
provide privacy, and where the victim`s genitals, buttocks
or breasts are exposed or covered only in underwear; or the victim is using
a lavatory; or the person is doing a sexual act that is not of a kind
ordinarily done in public.
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Explanation 2.–– Where the victim consents to the
capture of images or any act, but not to their dissemination to third
persons and where such image or act is disseminated, such dissemination
shall be considered an offence under this section.
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Stalking.
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354D. (1)
Whoever follows a person and contacts, or attempts to contact such person
to foster personal interaction repeatedly, despite a clear indication of
disinterest by such person, or whoever monitors the use by a person of the
internet, email or any other form of electronic communication, or watches or spies on a person in a
manner that results in a fear of violence or serious alarm or distress in
the mind of such person, or interferes with the mental peace of such
person, commits the offence of stalking:
Provided that the course of conduct will not
amount to stalking if the person who pursued it shows––
(i)
that it was pursued for the purpose of preventing or detecting crime
and the person accused of stalking had been entrusted with
the responsibility of prevention and detection of crime by the
state; or
(ii)
that it was pursued under any law or to comply with any condition or requirement imposed by
any person under any law; or
(iii)
that in the particular circumstances
the pursuit of the course of
conduct was reasonable.
(2)
Whoever commits the offence of stalking shall be punished with imprisonment
of either description for a term which shall not be less than one year but
which may extend to three years, and shall also be liable to fine.’.
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7. For
section 370 of the Penal Code, the following sections shall be substituted,
namely:––
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Substitution
of new sections 370 and 370A for section 370.
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‘370. (1) Whoever, for the purpose
of exploitation, (a) recruits, (b) transports, (c)
harbours, (d) transfers, or (e) receives, a person or
persons, by––
First.––
using threats, or
Secondly.––
using force, or any other form of coercion, or
Thirdly.––
by abduction, or
Fourthly.––
by practising fraud, or deception,
or
Fifthly.––
by abuse of power, or
Sixthly.–– by inducement, including
the giving or receiving of
payments or benefits, in order to
achieve the consent of any person having
control over the person recruited,
transported, harboured, transferred or received,
commits
the offence of trafficking.
Explanation
1.–– The expression “exploitation” shall include, prostitution or other
forms of sexual exploitation, forced labour or services, slavery or
practices similar to slavery, servitude, or the forced removal of organs.
Explanation
2.–– The consent of the victim is immaterial in a determination of the
offence of trafficking.
(2)
Whoever commits the offence of trafficking shall be punished with rigorous
imprisonment for a term which shall not be less than seven years, but which
may extend to ten years, and shall also be liable to fine.
(3)
Where the offence involves the trafficking of more than one person, it
shall be punishable with rigorous imprisonment for a term which shall not
be less than ten years but which may extend to imprisonment for life, and
shall also be liable to fine.
(4)
Where the offence involves the trafficking of a minor, it shall be
punishable with rigorous imprisonment for a term which shall not be less
than ten years but which may extend to imprisonment for life.
(5)
Where the offence involves the trafficking of more than one minor at the
same time, it shall be punishable with rigorous imprisonment for a term
which shall not be less than fourteen years but which may extend to
imprisonment for life.
(6)
When a public servant including police officer is involved in the
trafficking of a minor then such public servant shall be punished with
imprisonment for life, which shall mean the remainder of that person’s
natural life.
(7) If a person is convicted of the offence
of trafficking of minors, on more than one occasion, then such person shall
be punished with imprisonment for life, which shall mean imprisonment for
the remainder of that person’s natural life.
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Trafficking
of person.
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Employing
of a trafficked person.
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370A.
(1) Whoever, despite
knowing, or having reason to believe that a child has been trafficked, employs
such child in any form of
labour, shall be punished with
rigorous imprisonment for a
term which shall not be less than five years but which may extend to seven years, and with fine.
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(2)
Whoever, despite knowing or having
reason to believe that an
adult has been trafficked,
employs such adult for
labour, shall be punished with rigorous imprisonment for a term which
shall not be less than three years but which may extend to five years, and
shall also be liable to fine.’.
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Substitution
of new sections for sections 375,
376, 376A, 376B, 376C and 376D.
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8. For sections 375, 376, 376A, 376B, 376C and
376D of the Penal Code, the
following sections shall be substituted, namely:––
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Sexual
assault.
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‘375. A person
is said to commit “sexual assault” if that person––
(a) penetrates his penis, to any
extent, into the vagina, mouth
urethra or anus of
another person or makes the person
to do so with him or any other
person; or
(b)
inserts, to any extent, any object or a part of the body, not being the
penis, into the vagina, the urethra or anus of another person or makes the
person to do so with him or any other person; or
(c)
manipulates any part of the body of another person so as to cause
penetration into the vagina, urethra, anus or any part of body of such person
or makes the person to do so with him or any other person; or
(d)
applies his mouth to the penis, vagina, anus, urethra of another
person or makes such person to do so with him or any other person;
(e) touches the vagina, penis, anus
or breast of the person or makes the
person touch the vagina, penis, anus or breast of that person or any other
person,
except
where such penetration or touching is carried out for proper hygienic or
medical purposes under the circumstances falling under any of the following
seven descriptions:––
First.––
Against the other person’s will.
Secondly.
–– Without the other person’s consent.
Thirdly.
–– With the other person’s consent when such consent has been
obtained by putting such other person or any person in whom such other person is interested, in fear of death or of
hurt.
Fourthly.
–– When the person assaulted is a
female, with her consent, when the man knows that he is not her husband and that her consent is given because
she believes that he is another man to whom she is or believes to be
lawfully married.
Fifthly.––
With the consent of the other person when, at the time of giving such
consent, by reason of unsoundness of mind or intoxication or the
administration by that person personally or through another of any
stupefying or unwholesome substance, the other person is unable to
understand the nature and consequences of that action to which such other
person gives consent.
Sixthly.
–– With or without the other person’s consent, when such other person is
under eighteen years of age.
Seventhly.
–– When the person is unable to communicate consent.
Explanation
1.–– Penetration to any extent is “penetration” for the purposes of this
section.
Explanation
2.–– For the purposes of this section,
“vagina” shall also include labia majora.
Explanation
3.–– Consent means an unequivocal voluntary agreement when the person
by words, gestures or any
form of non-verbal communication, communicates
willingness to participate in the specific act:
Provided
that, a person who does not physically
resist to the act of penetration shall not by the reason only of
that fact, be regarded as consenting to the sexual activity.
Exception.––
Sexual intercourse or sexual acts by a man with his own wife, the wife not
being under sixteen years of age, is not sexual assault.
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Punishment
for sexual assault.
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376. (1)
Whoever, except in the cases provided for by sub-section (2),
commits sexual assault, shall be punished with rigorous imprisonment of
either description for a term which shall not be less than seven years but
which may extend to imprisonment for life, and shall also be liable to
fine.
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5
of 1861.
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(2) Whoever,––
(a) being
a police officer, commits sexual assault –
(i)
within the limits of the police station
to which such police officer is appointed; or
(ii)
in the premises of any station house; or
(iii)
on a
person in such police officer’s custody or in the custody of a
police officer subordinate to such police officer; or
(b) being a public servant, commits sexual assault on
a person in such public servant’s custody or in the custody of a public
servant subordinate to such public servant; or
(c)
being a member of the armed forces is in the area by virtue of deployment
by the Central or a State Government, commits sexual assault; or
(d)
being on the management or on the staff of a jail, remand home or other
place of custody established by or under any law for the time being in
force or of a women’s or children’s institution, commits sexual assault on
any inmate of such jail, remand home, place or institution; or
(e) being
on the management or on the staff of a hospital, commits sexual assault on
a person in that hospital; or
(f) being
a relative, guardian or teacher of, or a person in a position of trust or
authority towards, the person
assaulted, commits sexual assault on such person; or
(g)
commits sexual assault on a woman
knowing her to be pregnant; or
(h)
commits sexual assault on a person when such person is under eighteen years
of age; or
(i)
commits sexual assault, where the person assaulted is incapable of giving
consent; or
(j)
being in a position of economic or social dominance, commits sexual assault
on a person under such dominance; or
(k) commits
sexual assault on a person suffering from mental or physical disability; or
(l)
while committing sexual assault causes grievous bodily harm or maims or
disfigures or endangers the life of a person; or
(m)
commits persistent sexual assault,
shall be
punished with rigorous imprisonment for a term which shall not be less than
ten years but which may extend to imprisonment for life, and shall also be
liable to fine.
Explanation
1.–– For the purposes of this
sub-section,––
(a)
“women’s or children’s institution” means an institution, whether called an
orphanage or a home for neglected women or children or a widow’s home or an
institution called by any other name, which is established and maintained
for the reception and care of women or children;
(b) “hospital”
means the precincts of the hospital and includes the precincts of any
institution for the reception and treatment of persons during convalescence
or of persons requiring medical attention or rehabilitation;
(c)
“police officer” shall have the same meaning as assigned to the expression
“police” under the Police Act, 1861;
(d)
“armed forces” means the naval, military and air
forces and includes any
member of the Armed Forces constituted under any Act for the
time being in force, including the paramilitary forces and any auxiliary
forces that are under the control of the Central Government or the State
Government.
Explanation
2.–– Where a person is subjected
to sexual assault by one or more persons in a group of persons acting in
furtherance of their common intention, each of the persons in the group
shall be deemed to have committed sexual assault within the meaning of this
sub-section.
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Punishment
for causing death or resulting in persistent vegetative state of the
victim.
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376A.
Whoever, commits an offence punishable under sub-section (1) or
sub-section (2) of section 376 and in the course of such commission
inflicts an injury which causes the death of the person or causes the
person to be in a persistent vegetative state, shall be punished with
rigorous imprisonment for a term which shall not be less than twenty years,
but which may extend to imprisonment for life, which shall mean the
remainder of that person’s natural life, or with death.
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Sexual
assault by husband upon his wife during separation.
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376B.
Whoever commits sexual assault on his own wife, who is living separately
under a decree of separation or under any custom or usage, without her
consent, shall be punished with imprisonment of either description, for a
term which shall not be less than two years but which may extend to seven
years, and shall also be liable to fine.
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Sexual
intercourse by a person in authority.
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376C.
Whoever,––
(a)
being in a position of authority or in a fiduciary relationship; or
(b)
a public servant; or
(c)
superintendent or manager of a jail, remand home or other place of custody
established by or under any law for the time being in force, or a women’s
or children’s institution; or
(d)
being on the management of a hospital or being on the staff of a hospital,
and
abuses such position or fiduciary relationship to induce or seduce any
person either in the first mentioned person’s custody or under the first
mentioned person’s charge or present in the premises and has sexual
intercourse with that person, such sexual intercourse not amounting to the
offence of sexual assault, shall be punished with rigorous imprisonment of
either description for a term which shall not be less than five years but
which may extend to ten years, and shall also be liable to fine.
Explanation
1.–– In this section, “sexual
intercourse” shall mean any of the acts mentioned in clauses (a) to (c)
of section 375.
Explanation
2. –– For the purposes of this section, Explanations
1 and 2 to section 375 shall also be applicable.
Explanation
3.–– “Superintendent”, in relation to a
jail, remand home or other place of custody or a women’s or children’s
institution, includes a person holding any other office in such jail, remand
home, place or institution by virtue of which such person can exercise any
authority or control over its inmates.
Explanation
4.–– The expressions “hospital” and “women’s or children’s institution”
shall respectively have the same meaning as in Explanation 1 to sub-section
(2) of section 376.
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376D.
Where a person is sexually
assaulted by one or more
persons constituting a group or acting in furtherance of a common
intention, each of those persons shall be
deemed to have committed the offence of sexual assault, regardless
of gender and shall be punished
with rigorous imprisonment for a term which shall
not be less than twenty years, but which may extend to life and shall pay
compensation to the victim which shall be reasonable to meet
the medical expenses and rehabilitation of the victim.
Explanation.––
For the purposes of this section, imprisonment for life shall mean
imprisonment for the remainder of that person’s natural life.
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Sexual
assault by gang.
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376E.
Whoever has been previously convicted of an offence punishable under
section 376 or section 376A or section
376C or section 376D and is subsequently convicted of an offence
punishable under any of the said sections shall be punished with imprisonment
for life, which shall mean the remainder of that person’s natural life or
with death.’.
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Punishment
for repeat offenders.
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9. In
section 509 of the Penal Code, for the words “shall be punished with simple
imprisonment for a term which may extend to one year, or with fine, or with
both”, the words “shall be punished with simple imprisonment for a term
which may extend to three years and shall also be liable to fine” shall be
substituted.
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Amendment
of section 509.
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CHAPTER
III
AMENDMENTS
TO THE CODE OF CRIMINAL PROCEDURE, 1973.
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2 of
1974.
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10. In the Code of Criminal Procedure, 1973
(hereafter in this Chapter referred to as the Code of Criminal Procedure),
in section 54A, the following proviso shall be inserted, namely:––
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Amendment
of section 54A.
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“Provided that, if the person identifying
the person arrested is mentally or physically disabled, such process
of identification shall
take place under the
supervision of a Judicial Magistrate
who shall take
appropriate steps to ensure that
such person identifies the person
arrested using methods that the person is comfortable with:
Provided
further, that if the person identifying the person arrested is mentally or
physically disabled, the identification process may be videographed.”.
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Amendment
of section 154
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11. In
section 154 of the Code of Criminal Procedure, in sub-section (1),
the following provisos shall be inserted, namely:––
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“Provided that if the
information is given by the woman against whom an offence under section
326A, section 326B, section 354, section 375, section 376, section 376A,
section 376B, section 376C, section 376D, section 376E and section 509 of the Indian Penal Code
is alleged to have been committed or attempted, then such information shall
be recorded, as far as possible, by a woman police officer and such
woman shall be provided legal assistance and also the assistance of
a healthcare worker or
women’s organisation or both:
Provided
further that––
(a)
in the event that the person against whom
an offence under section 354,
section 354A, section 354B, section 354C, section 354D, sub-section (1)
or sub-section (2) of section 376, section 376A, section 376B,
section 376C, section 376D or section 376E of the Indian Penal Code is
alleged to have been committed or attempted is temporarily or permanently
mentally or physically disabled, then such information shall be recorded by
a police officer, at the residence of the person seeking to report such
offence or at a convenient place of such person’s choice, in the presence
of a special educator or an interpreter, as the case may be;
(b) the recording of such information may be
videographed.
(c)
the police officer shall
get the statement of the
person recorded by a Judicial
Magistrate under clause (a) of sub-section (5A) of section
164 as soon as possible.”.
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45 of
1860.
45 of
1860.
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Amendment
of section 160.
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12. In
section 160 of the Code of Criminal Procedure, in sub-section (1),
in the proviso, for the words “under the age of fifteen years or woman”,
the words “under the age of eighteen years or above the age of sixty-five
years or a woman or a physically or mentally disabled person” shall be
substituted.
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Amendment
of section 161.
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13. In
section 161 of the Code of Criminal Procedure, in sub-section (3),
after the proviso, the following proviso shall be inserted, namely:––
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“Provided
further that the statement of a woman against whom an offence under section
354, section 354A, section 354B, section 354C, section 354D, section 375,
section 376, section 376A, section 376B, section 376C, section 376D,
section 376E or section 509 of the Indian Penal Code is alleged to have
been committed or attempted shall be recorded, as far as possible, by a
woman police officer.”.
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45 of
1860.
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14. In
section 164 of the Code of Criminal Procedure, after sub-section (5),
the following sub-section shall be
inserted, namely:––
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Amendment
of section 164.
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45 of
1860.
1
of 1872.
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“(5A) (a) In
cases punishable under
section 354, section 354A, section 354B, sub-section (2) of section
354C, sub-section (1) or sub-section (2) of section 376, section 376A, section 376B, section 376C, section 376D or section 376E of the
Indian Penal Code, the Judicial Magistrate shall record the statement of
the person against whom such offence has been committed in the manner
prescribed in sub-section (5), as soon as the commission of the
offence is brought to the notice of the police:
Provided
that if the person making the statement is temporarily or permanently
physically or mentally disabled, the Magistrate shall take the assistance
of an interpreter or a special educator in recording the statement:
Provided
further that if the person making the statement is temporarily or
permanently physically or mentally disabled, the statement made by the
person, with the assistance of an
interpreter or special educator, may be videographed;
(b)
a statement recorded under clause (a) of a person who is temporarily
or permanently physically or mentally disabled shall be considered a statement
in lieu of examination-in-chief, as specified in section 137 of the Indian
Evidence Act, 1872 such that the maker of the statement can be
cross-examined on such statement, without the need for recording the same
at the time of trial.
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15. After
section 198A of the Code of Criminal Procedure, the following section shall be inserted, namely:––
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Insertion
of new section 198B.
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45 of
1860.
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“198B. No
Court shall take cognizance of an offence under section 376B of the Indian
Penal Code where the persons are in a marital relationship, except upon prima
facie satisfaction of the facts which constitute the offence upon a
complaint having been filed or made by the wife against the accused
husband.”.
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Cognizance
of offence.
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16. In
section 273 of the Code of Criminal Procedure, before the Explanation,
the following proviso shall be inserted, namely:––
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Amendment
of section 273.
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“Provided that where the evidence of
a person below the age of eighteen years who is alleged to have been
subjected to sexual assault or any other sexual offence, is to be recorded,
the court may take appropriate measures to ensure that such person is not
confronted by the accused while at the same time ensuring the right of
cross-examination of the accused.”.
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|
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17. In section
327 of the Code of Criminal Procedure, in sub-section (2), for the
words, figures and letters “trial of rape or an offence under section 376,
section 376A, section 376B, section 376C or section 376D of the Indian
Penal Code”, the words, figures and letters “trial of sexual assault or an
offence under section 376, section 376A, section 376B, section 376C,
section 376D or section 376E of the Indian Penal Code” shall be
substituted.
|
Amendment
of section 327.
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Amendment
of First Schedule.
|
18. In
the First Schedule to the Code of Criminal Procedure, under the
heading “1.-OFFENCES UNDER THE
INDIAN PENAL CODE”,––
(a)
after the entries relating to section 166, the following entries shall be
inserted, namely:––
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|
|
1
|
2
|
3
|
4
|
5
|
6
|
“166A
|
Public
servant disobeying direction under law
|
Imprisonment
for one year or fine or with both
|
Non-cognizable
|
Bailable
|
Magistrate
of the first class”;
|
|
|
|
(b)
after the entries relating to section 326, the following entries shall be
inserted, namely:––
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|
|
1
|
2
|
3
|
4
|
5
|
6
|
“326A
|
Voluntarily
causing grievous hurt by use of acid, etc.
|
Imprisonment
for not less than ten years but which may extend to imprisonment for life
and fine of 10 lakh rupees.
|
Cognizable
|
Non-bailable
|
Court
of Session.
|
326B
|
Voluntarily
throwing or attempting to throw acid.
|
Imprisonment
for five years but which may extend to seven years and fine.
|
Cognizable
|
Non- bailable
|
Court
of Session.”.
|
|
|
|
(c)
for the entries relating to section 354, the following entries shall be
substituted, namely:––
1
|
2
|
3
|
4
|
5
|
6
|
“354
|
Assault
or use of criminal force to woman with intent to outrage her modesty.
|
Imprisonment
of 1 year which may extend to 5 years, and with fine.
|
Cognizable
|
Non-bailable
|
Any
Magistrate.
|
354A
|
(1)
Sexual harassment of the nature of unwelcome physical contact and
advances or a demand or request for sexual favours.
|
Imprisonment
which may extend to 5 years or with fine or with both.
|
Cognizable
|
Non-bailable
|
Any
Magistrate.
|
|
(2)
Sexual harassment of the nature of making sexually coloured remark or
showing pornography or any other unwelcome physical, verbal or non-verbal
conduct of sexual nature.
|
Imprisonment
which may extend to 1 year or with fine or with both.
|
Non-cognizable
|
Bailable
|
Any
Magistrate.
|
354B
|
Assault
or use of criminal force to woman with intent to disrobe.
|
Imprisonment
of not less than 3 years but which may extend to 7 years and with fine.
|
Cognizable
|
Non-bailable
|
Any
Magistrate.
|
354C
|
Voyeurism.
|
Imprisonment
of not less than 1 year but which may extend to 3 years and with fine for
first conviction.
Imprisonment
of not less than 3 year but which may extend to 7 years and with fine for
second or subsequent conviction.
|
Non-cognizable
Cognizable
|
Bailable
Non-bailable
|
Any
Magistrate.
Any
Magistrate.
|
354D
|
Stalking.
|
Imprisonment
of not less than 1 year but which may extend to 3 years and with fine.
|
Cognizable
|
Non-bailable
|
Any
Magistrate.”.
|
|
|
|
(d)
for the entries relating to sections 370, the following entries shall be
substituted, namely:––
|
|
|
1
|
2
|
3
|
4
|
5
|
6
|
“370
|
(1)Trafficking
of person.
|
Imprisonment
of not less than 7 years but which may extend to 10 years and with fine.
|
Cognizable
|
Non-bailable
|
Court
of Session.
|
|
(2)
Trafficking of more than one person.
|
Imprisonment
of not less than 10 years but which may extend to imprisonment for life
and with fine.
|
Cognizable
|
Non-bailable
|
Court
of Session.
|
|
(3)
Trafficking of a minor.
|
Imprisonment
of not less than 10 years but which may extend to imprisonment for life.
|
Cognizable
|
Non-bailable
|
Court
of Session.
|
|
(4)
Trafficking of more than one minor.
|
Imprisonment
of not less than 14 years but which may extend to imprisonment for life.
|
Cognizable
|
Non-bailable
|
Court
of Session.
|
|
(5)
Public servant or a police officer involved in trafficking of minor.
|
Imprisonment
for life which shall mean the remainder of that person’s natural life.
|
Cognizable
|
Non-bailable
|
Court
of Session.
|
|
(6)
Person convicted of offence of trafficking of minor on more than one
occasion.
|
Imprisonment
for life which shall mean the remainder of that person’s natural life.
|
Cognizable
|
Non-bailable
|
Court
of Session.
|
370A
|
(1)
Employing of a trafficked child.
|
Imprisonment
of not less than 5 years but which may extend to 7 years and with fine.
|
Cognizable
|
Non-bailable
|
Court
of Session.
|
|
(2)
Employing of a trafficked adult person.
|
Imprisonment
of not less than 3 years but which may extend to 7 years and with fine.
|
Cognizable
|
Non-bailable
|
Court
of Session.”.
|
|
|
|
(e)
for the entries relating to sections 376, 376A, 376B, 376C and 376D, the
following entries shall be substituted, namely:––
|
|
|
1
|
2
|
3
|
4
|
5
|
6
|
376
|
(1)
Sexual assault.
|
Rigorous
imprisonment of not less than 7 years but which may extend to
imprisonment for life and with fine.
|
Cognizable
|
Non-bailable
|
Court
of Session.
|
|
(2)
Sexual assault by a police officer or a public servant or Member of armed
forces or a person being on the management or on the staff of a jail,
remand home or other place of custody or women’s or children’s
institution or by a person on the management or on the staff of a
hospital, and sexual assault committed by a person in a position of trust
or authority towards the person assaulted or by a near relative of the
person assaulted.
|
Rigorous
imprisonment of not less than 10 years but which may extend to
imprisonment for life and with fine.
|
Cognizable
|
Non-bailable
|
Court
of Session.
|
376A
|
Person committing an offence of sexual
assault and inflicting injury which causes death or causes the person to
be in a persistent vegetative state.
|
Rigorous
imprisonment of not less than 20 years but which may extend to imprisonment
for life which shall mean the remainder of that person’s natural life or
with death.
|
Cognizable
|
Non-bailable
|
Court
of Session.
|
376B
|
Sexual
assault by the husband upon his wife during separation.
|
Imprisonment
for not less than 2 years but which may extend to 7 years and with fine.
|
Cognizable
(but
only on the complaint of the victim)
|
Non-bailable
|
Court
of Session.
|
376C
|
Sexual
intercourse by a person in authority.
|
Rigorous
imprisonment for not less than 5 years but which may extend to 10 years
and with fine.
|
Cognizable
|
Non-bailable
|
Court
of Session.
|
376D
|
Sexual
assault by gang.
|
Rigorous
imprisonment for not less than 20 years but which may extend to
imprisonment for life which shall mean the remainder of that person’s
natural life and compensation to the victim.
|
Cognizable
|
Non-bailable
|
Court
of Session.
|
376E
|
Repeat
offenders.
|
Imprisonment
for life which shall mean the remainder of that person’s natural life or
with death.
|
Cognizable
|
Non-bailable
|
Court
of Session.”.
|
|
|
|
(f)
entry relating to section 509, in column 3, for the words “Simple
imprisonment for one year, or fine, or both,”, the words “Simple
imprisonment for 3 years and with fine” shall be substituted.
|
|
|
CHAPTER
IV
AMENDMENTS
TO THE INDIAN EVIDENCE ACT, 1872
|
|
1 of
1872.
|
19. After
section 53 of the Indian Evidence Act, 1872 (hereafter in this Chapter
referred to as the Evidence Act), the following section shall be inserted,
namely:––
|
Insertion
of new section 53A.
|
45 of
1860.
|
“53A. In a prosecution for an offence
under section 354, section 354A, section 354B, section 354C, sub-section (1) or
sub-section (2) of section
376, section 376A,
section 376B, section 376C, section
376D or section 376E of the Indian Penal Code or for attempt to commit any
such offence, where the question of consent is in issue, evidence of the
character of the victim or of such person’s previous sexual experience with
any person shall not be relevant on the issue of such consent or the
quality of consent.”.
|
Evidence
of character or previous sexual experience not relevant in certain cases.
|
|
20. For
section 114A of the Evidence Act, the following section shall be
substituted, namely:––
|
Substitution
of new section for section 114A.
|
45 of
1860.
45
of 1860.
|
‘114A.
In a prosecution for sexual assault under clause (a), clause
(b), clause (c), clause (d), clause (e), clause
(f), clause (g), clause (h), clause (i), clause
(j), clause (k), clause (l) or clause (m) of
sub-section (2) of section 376 of the Indian Penal Code, where
sexual intercourse by the accused is proved and the question is whether it
was without the consent of the other person alleged to have been sexually
assaulted and such other person states in that person’s evidence before the
court that such person did not consent, the court shall presume that such
person did not consent.
Explanation.––
In this section “sexual intercourse” shall mean any of the acts mentioned
in clauses (a) to (c) of section 375 of the Indian Penal Code.’.
|
Presumption
as to absence of consent in certain prosecution for sexual assault.
|
|
21. For
section 119 of the Evidence Act, the following
section shall be substituted, namely:––
|
Substitution
of new section for section 119.
|
|
“119. A witness who is unable to speak may
give his evidence in any other manner in which he can make it intelligible,
as by writing or by signs; but such writing must be written and the signs
made in open Court, evidence so given shall be deemed to be oral evidence:
Provided that if the witness is unable to
communicate verbally, the Court shall take the assistance of a special
educator or interpreter in recording the statement, and such statement may
be videographed.”.
|
Witness
unable to communicate verbally.
|
Amendment
of section 146.
|
22. In
section 146 of the Evidence Act, for the proviso, the following proviso
shall be substituted, namely:––
“Provided
that in a prosecution for an offence under sub-section (1) or
sub-section (2) of section 376,
section 376A, section 376B, section 376C, section 376D or section
376E of the Indian Penal Code or for attempt to commit any such offence,
where the question of consent is an issue, it shall not be permissible to
adduce evidence or to put questions in the cross-examination of the victim
as to the general immoral character, or previous sexual experience, of such
victim with any person for proving such consent or the quality of
consent.”.
|
45 of
1860.
|
|
President.
***
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