Print Friendly, PDF & Email

Insights into Editorial: Give adequate time for a probe

shakti_bill

 

Context: Maharashtra Shakti Criminal Law (Maharashtra Amendment) Act, 2020:

The Maharashtra Cabinet cleared the draft of a Bill prepared on the lines of the Disha Act passed by the Andhra Pradesh government to curb crimes against women and children.

The draft of the Maharashtra Shakti Criminal Law (Maharashtra Amendment) Act, 2020, proposes death penalty in cases of rape, acid attack, and serious crimes against children.

Taking a cue from the Andhra Pradesh’s Disha Bill of 2019, the Maharashtra government recently announced that it would enact a law to deal sternly with the cases of sexual assault on women. The proposed Maharashtra Shakti Act of 2020 will have stern punishment for offences of sexual assault and a provision to complete investigation within 15 days.

Though Disha has been withdrawn temporarily by the Andhra Pradesh government following queries by the Centre before it could get presidential assent, it is still important to ponder some of its provisions as more States may legislate to reduce the period of investigation.

What is the Shakti bill?

The proposed ‘Shakti law’ involves two bills — the Maharashtra Shakti Criminal Law (Maharashtra Amendment) Act, 2020, and the Special Court and Machinery for Implementation of Maharashtra Shakti Criminal Law, 2020.

The draft legislation seeks amendments to the Indian Penal Code (IPC), Code of Criminal Procedure (CrPC)and the Protection of Children from Sexual Offences (POCSO) Act to include new offences, increase punishments and speedier investigations and trials.

According to the home department, the bill proposes punishments for crimes that were not specifically covered under the laws for crimes against women and children earlier.

These include threatening women and defaming them on social media, making false complaints about rape and acid attacks, non-cooperation of social media platforms and public representatives in such investigations and bringing in restrictions to protect the identity of victims in molestation cases and acid attacks, just like in rape cases.

On the lines of Andhra Pradesh’s Disha Bill of 2019:

Disha mandated completion of investigation within seven working days for “heinous offences” such as harassment of women, sexual assault on children, and rape, where “adequate conclusive evidence” is available.

When the apex court has already ruled in favour of the prosecutrix’s statement alone (if credible) being sufficient to convict an accused and forensic evidence being corroborative in nature, the interpretation of “adequate conclusive evidence” by the police shall remain a problem.

The police, in fact, are concerned primarily with collection of all evidence relating to the offence. It is only for the court to evaluate whether the available evidence is sufficient to slap conviction on the accused.

Mentioned provisions in the Maharashtra Shakti Criminal Law (Maharashtra Amendment) Act, 2020:

  1. The drafts have included new crimes within their ambit. They include threatening and defaming women on social media, false complaint regarding rape, acid attack, and outraging the modesty of women.
  2. Non-cooperation in investigation by social media sites and companies providing mobile and internet services, and elected representatives will be considered a crime.
  3. The restrictions on publishing the names of rape victims are now applied to victims of acid attacks as well as those in cases of outraging modesty.
  4. The Shakti Act proposes death penalty in cases of rape, acid attack, and serious crimes against children.
  5. While the period of imprisonment will be increased, a fine has been proposed in cases of acid attacks which will be given to the victims for medical treatment, including plastic surgery.
  6. The drafts also propose a new judicial system under which 36 special courts will be set up and a special public prosecutor will be made available to each court.
  7. Each district police superintendent or Commissionerate will have one special squad to probe crimes against women and children which will mandatorily have one female officer. NGOs will also be notified to extend help to victims.

Time for investigation:

Two gruesome cases of sexual assault and murder are important to mention. First, in the ‘Nirbhaya’ case, the police filed a charge sheet on the 18th day of its reporting. No effort was spared to nab the criminals and the case was rigorously supervised. However, in the recent Hathras case, the police took more than 90 days to file a charge sheet.

The Criminal Procedure Code (CrPC) provides that investigation relating to offences punishable with imprisonment up to 10 years must be completed within 60 days and for offences with higher punishment (including rape), within 90 days of detaining the accused, else he or she shall be released on bail.

To speed up the process, the CrPC was amended in 2018 and the period of investigation was reduced from 90 to 60 days for all cases of rape.

Though every investigation has to be completed without unnecessary delay, there is no upper limit to complete investigation when the offenders are at large. Each investigation is guided by its own set of facts and circumstances.

Way Forward: Factors to be considered for time of investigation:

Regarding Pendency, 30% of all cases filed in 2016 were pending for investigation by the end of the year (this combined with the pendency in the judiciary means securing justice in India can take a very long time). Pendency in the police is driven by lack of resources.

  1. Generally, the time of investigation depends on the severity of the crime, the number of accused persons and agencies involved.
  2. It includes examination of the scene of crime by the investigating officer (IO) and forensic expert; recording the statement of the victim (by the IO and the judicial magistrate) and witnesses; medical examination of the victim (at a place where a female doctor is available) and accused persons;
  3. Collecting documents relating to age from parents, local bodies and school (in case of child victim and delinquents); DNA findings of the forensic science lab (FSL); test identification parade of accused persons (if initially not named); seizing weapons of offence; the arrest of accused persons; etc.
  4. This is besides the fact that in many cases of rape, the victim remains under trauma for some time and is not able to narrate the incident in detail.
  5. The speed and quality of investigation also depends on whether a police station has separate units of investigation and law and order, which is also a long-pending police reform awaiting compliance of the apex court’s directives.
  6. It also depends on the number of available IOs and women police officers, and the size and growth of the FSL and its DNA unit.

 Conclusion:

Investigation of sensitive offences should be done expeditiously. However, setting narrow timelines for investigation creates scope for procedural loopholes which may be exploited during trial.

Therefore, instead of fixing unrealistic timelines, the police should be given additional resources so that they can deliver efficiently.