DECODING DIFFERENT FORMS OF SEXUAL OFFENCES IN INDIA
A sexual offence could mean anything from an unwarranted sexual flirting right upto the most serious offence of “RAPE”. A victim should therefore know “the defi nitions and ingredients of each such offence” so as to fully understand her rights, as well as the limitations thereof, before seeking to file any sexual complaint or even “before conducting a trial by media”.
Everyone should also know that most definitions of different types of sexual offenses as defined under the Indian Penal Code 1860, have gone through major changes pursuant to enactment of the Criminal Amendment Act 2013 (which came into force on the 3rd of April 2013), therefore every Victim ought to know “what was the relevant law which was prevailing at the time”, when the said sexual offense was committed by the accused person. If any victim was sexually harassed before 3rd of April 2013, and if the said offense was falling under the below definitions then the time limit to file a complaint as per Section 468 of Cr.P.C. was “Three years for offences falling under Section 354” and only “One year for offences falling under Section 509” respectively:
Section 354 of Indian Penal Code: Assault or criminal force to woman with intent to outrage her modesty —
Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
Section 509 of Indian Penal Code: Word, gesture or act intended to insult the modesty of a woman —
Whoever, intending to insult the modesty of any woman, utters any word, makes any sound or gesture, or exhibits any object, intending that such word or sound shall be heard, or that such gesture or object shall be seen, by such woman, or intrudes upon the privacy of such woman, shall be punished with simple imprisonment for a term which may extend to one year, or with fine, or with both.
WHEREAS for taking cognizance in the matter of a serious sexual offence of Rape, Section 468 of the Cr.P.C. itself does not provide a time limit, therefore such cases are allowed to be filed even after a period of three years, which means that the Police can register a F.I.R. for the offence of Rape anytime even after three years from the date
of commission of the said offence, or any other sexual offences where the punishment was more than three years even under the “old Indian Penal Code”.
It has however been observed by me that majority of the cases reported by victims, in the media through the #MeToo campaign are cases which were allegedly committed prior to 3rd April 2013, and are therefore falling under the definition of Sections 354 and/or 509 of “old” Indian Penal Code, as has been explained above.
It should therefore be noted that as the time limit for filing the complaint “is legally over” the Victim cannot legally exercise any of her rights in the said matter in any manner whatsoever, without first getting the delay duly condoned by the Magistrate as per Section 473 of Cr.P.C. Also please do note that the Police Department does not have any rights whatsoever to register any F.I.R. under Sections 354 or 509 of the old Indian Penal code, after the expiry of three years if the said offences committed were prior to 3rd of April 2013. Any such F.I.R. filed inadvertently by the Police Department is likely to be quashed by the High Court on merits at the instance of the Accused, as registration of the said F.I.R belatedly is against the laws laid down by the Statute.
All victims should categorically note that “a belated trail by Media” by any of the said victims would instead give suffcient rights to the Accused to instead sue them, under the criminal and/or civil laws for defamation. The Victims ought to fully know that the Latin maxim ‘vigilantibus et non dormientibus, jura subveniunt’, which means “the vigilant and not the sleepy, are assisted by laws”, is strictly followed in spirit, aim and intent by the Courts in India and also the world over. Supreme Court of India has time and again referred to this Maxim in plethora of cases decided by them. All Victims should also further note that there are THREE PRINCIPLES OF CRIMINAL JURISPRUDENCE and in a criminal trial, the accused is presumed to be innocent and this is a general rule of evidence and the same is also followed as per the codified Articles 11 of the Universal Declaration of Human Rights. Another Latin maxim, “Ei incumbit probatio qui dicit, non qui negat” indicates that the burden of proof is on he who asserts, not on he who denies. These three cardinal principles of criminal jurisprudence i.e. 1. Prosecution to prove its case beyond reasonable doubt ; 2. The accused must be presumed to be innocent; and 3. The onus of the prosecution never shifts, is always considered by the Courts. It is therefore essential for the Victims to know these basic principles and accordingly they should gather all evidence against the Accused and file their respective complaints in a proper manner, within the time limit prescribed by the law.
Changes in the definitions of Sexual Offences as per the Criminal Amendment Act 2013.
As per the said amendment the punishment for an offence under section 354 of the Penal Code has been raised five years therefore the victim has the now right to fi le a complaint anytime even after three years. Whereas as per Section 354A dealing with (i) a physical contact and advances involving unwelcome and explicit sexual overtures; or 354A (ii) or a demand or request for sexual favours or 354A (iii) showing pornography against the will of a woman by an accused attracts maximum punishment upto 3 years therefore the time limit to fi le an o ence under the said Section or part thereof is only “THREE YEARS”. One should also know that for any other offence where the Accused has made sexually coloured remarks the punishment prescribed is only one year therefore the under these circumstances the time limit prescribed for filing of complaint under Section 468 is only “ONE YEAR”.
Further as per Section 354B of the Indian Penal Code any assault or use of criminal force by a man on a woman with an intention to disrobe her is punishable upto 7 years therefore a complaint under the said Section can be made even after a period of three years. Whereas as per Section 354D of the Indian Penal Code a person accused for Stalking may on the first conviction be punished for a maximum period of three years therefore the time limit for filing a compliant is only “THREE YEARS”
Everyone should therefore know these basic laws as well as the State Amendments to the said Sections, as the Victims and the Accused would be governed by the said State-Laws. As majority of the cases reported under the #MeToo campaign fall under the above quoted Sections of Indian Penal Code 1860 read with the Criminal Procedure Code 1973, it was therefore relevant to share pertinent information with regards to the same. The said information provided herein above is not elaborate because of space constrains, however I believe that it gives a fair idea to the Victims with regards to their legal rights as well as their limitations under the laws laid down by the Statute. Also as the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 is an offshoot of Indian Penal Code and largely speaks of methods to be adopted by Organisations to prevent Sexual offences, the same has therefore intentionally not been discussed in this chapter as the Victims under the #MeToo campaign are more concerned about punishment to the Accused.
The author has been advising and representing various film personalities as an Advocate since almost two decades.