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One Step Closer

One Step Closer

Undoubtedly, the heinous “Nirbhaya” incident of December 16, 2012 in which a 23-year-old physiotherapy intern was sexually assaulted in the most brutal manner by 5 men in a moving bus and later abandoned on a Delhi road shocked the conscience of the nation. However, thanks to the nationwide protests that followed, many amendments have been made in the criminal law like redefining the ambit of offences, providing for effective and speedy investigation/trial.

But even after such changes, contrary to expectations, all the 4 surviving rapists (the main accused Ram Singh ended his life by hanging in his Tihar jail prison cell in 2013) are yet to face the gallows till date for a plethora of reasons.

With the accused trying various last minute strategies to avoid death penalty, the case is still being heard at various levels in the judiciary. One of the accused, Akshay Kumar Singh’s review petition had come up for hearing in the Supreme Court on December 18. It is to be noted that the trial court handed him the death sentence after his complicity in the crime was proved. Further, his conviction and death were upheld by the Delhi High Court and also confirmed by the Apex Court in May 2017.

Yet, Akshay Kumar’s lawyer raised several contentious issues in the review petition. Among others, it was argued that death sentence was futile in  Kalyug, where a person is no better than a dead body; as the level of pollution in Delhi NCR was so great, life was short anyhow. Further, the investigation was flawed and unreliable. Due to lack of professional skills of the investigating agency there was the need for an unbiased investigation. Finding no error in its ruling of May 5, 2017, the Supreme Court dismissed review petition.

Another convict, Pawan Gupta’s claim that he was a juvenile at the time of the offence in December 2012 has been dismissed by the Delhi High Court on December 19. Observing that the convict’s plea was not maintainable and it was filed to delay and drag the matter so that execution of death sentence does not take place in near future, his advocate, besides being reprimanded for playing “hide and seek” has been fined Rs 25,000 for filing forged documents and not appearing in the court.

With the Delhi Government moving the trial court for issuance of death warrants against the accused in Nirbhaya case, the Tihar jail authorities have been directed by the court to ascertain from the four accused and respond within a week whether they wanted to file mercy petitions with the President. By January 7, 2020 a clearer picture is expected to emerge.

Nonetheless, another important fall-out of the Nirbhaya case is that the Supreme Court suo motto has issued to various stakeholders for furnishing a status report on February 7, 2020 to assess the criminal justice system in response to sexual offences to make the system more efficacious and responsive towards the offence of rape and other sexual offences.

 Noting that delay in such matters has, in recent times created agitation, anxiety and unrest in the minds of people, the notice is appreciable.

Essentially the Apex Court seeks to ascertain to what extent its directions in Lalita Kumari vs Govt. of UP and others decided by it in 2014 have been put into actual practice which among others had held that registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation.

Further if the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not. The police officer cannot avoid his duty of registering offence if cognizable offence is disclosed. Action must be taken against erring officers who do not register the FIR if information received by him discloses a cognizable offence.

The scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence.  In addition to this, the statements of the victim under Section 161 are required to be recorded by a woman police officer or any woman officer.

The Court has sought a status report on a number of issues ranging from availability of woman police officer at Police Stations to record information of the victim; registration of Zero FIR when the place of commission of the offence is beyond a Police Station’s territorial jurisdiction; recording of first information by a woman police officer in the residence of the victim in case the victim is temporarily or permanently mentally or physically disabled.

In so far as the liability on medical institutions, both public and private to provide medical treatment free of cost to the victims of such offences (IPC 166B), as it offers intrinsic evidences for the trial, the report now sought by the Court calls for details of advisory or guidelines issued by authorities to all hospitals and medical centres as also details of cases registered against any person for violation of  Section 166B of IPC which attracts an imprisonment extending to one year or with fine or with both.

With the amended Cr PC  Section 173 (1A) having set a deadline for completing investigations, the Apex Court seeks to know (i) whether the police is completing the investigations and submitting the final report within 2 months from the date of recording of information of the offence and if no, reasons for delay; and (ii) if sufficient number of women police officers are available to conduct investigation into the offences relating to rape and other sexual offences?

To ensure speedy trial of rape cases, the Court has called for status report of whether trial of rape cases is presided over by a woman judge and if sufficient number of lady judges are available to deal with sexual offences and rape. Information related to infrastructure, conduct of in-camera trials for rape cases, data on the number of special courts established to deal exclusively with cases of rape and other sexual offences including information on the utilization of the Nirbhaya Fund for the purposes envisioned have also been sought.

(Published on 23rd December 2019, Volume XXXI, Issue 52)