Report No. 154

Chapter XVIII

Special Protection in Respect of Women

1. The Criminal Law (Amendment) Act, 1983 incorporated important amendments to the Indian Penal Code, 1860 on the law of rape introducing the concept of custodial rape and minimum sentence therefor, to the Indian Evidence Act, 1872 setting up a presumption as to absence of consent in custodial rapes and to the Code of Criminal Procedure mandating enquiry into and trial of rape in camera and prohibiting publication of the proceedings of such inquiry or trial without the permission of the Court.

2. The amendments were a sequel to the 84th Report of the Law Commission "Rape and Allied Offences-Some Questions of Substantive Law, Procedure and Evidence" in 1980. The Report had incorporated the major demands of the campaign on rape law reform by women's organisations triggered off by the Supreme Court decision in the Mathura case.1

The Commission had, inter alia, recommended certain pre-trial procedures, namely, women should not be arrested at night a policeman should not touch the body of a woman while arresting her, and the statements of women should be recorded in the presence of a relative, friend or social worker. It also recommended that a police officer's refusal to register a complaint of rape should be treated as an offence. However, the Bill introduced by the Government in 1980 did not incorporate the above recommendations of the Commission regulating powers of the police.

The Bill had sought to make publication of proceedings of rape trial a non-bailable offence which was rather harsh in that it blocked out media publicity which would help in the articulation of public protests against heinous offence like rape. In the face of public criticism, the Bill was referred to a Joint Committee of Parliament for further discussion. In so far as relevant to the Code of Criminal Procedure, the publication of reports of rape trials was made into a bailable offence.

1. Tukram v. State of Maharashtra, AIR 1979 SC 185.

3. In the decade following the 1983 amendments to the Code, a significant development took place. The National Commission for Women was setup under the National Commission for Women Act, 1990. The Commission had organised a seminar on Child Rape which made recommendations for amending the Indian Penal Code, Code of Criminal Procedure and the Indian Evidence Act.

Pursuant to the Seminar, a Bill to give effect to its recommendations was formulated. The Bill was examined by the Commission's Expert Committee on Law and Judiciary which gave its opinion and the Bill then was approved by the Commission. For the purpose of identification, the Bill as approved by the National Commission for Women is hereinafter referred to as Bill (NCW).

4.1. The Bill (NCW) has made the following recommendations for the amendment of Code of Criminal Procedure.

4.2. Section 26 specifies the different courts by which offences under the Indian Penal Code and other laws are triable.

The Bill (NCW) has recommended the incorporation of a proviso to clause (a), namely:

"Provided that an offence under section 376 of the Indian Penal Code [rape] shall be tried only by any such court presided over by a woman."

However, the Code of Criminal Procedure Amendment Bill, 1994 does not contain the above amendment.

We are of the view that an absolute condition provided in proviso to clause (a) of the Bill formulated by National Commission for Women, namely, that an offence under section 376 of the Indian Penal Code [rape] shall be tried only by any such court presided over by a woman may not be feasible in practice always. As the aim is to have speedy trial, emphasis should be on speedy investigation and commencement of rape trials. So we suggest that the word "only" be substituted by "as far as practicable" in the above proviso.

4.3.1. Section 54 provides for examination of arrested person by medical practitioner at the request of the arrested person.

4.3.2. The Law Commission in its 135th Report on "Women in Custody" had recommended that where a female accused desires a medical examination in order to prove her innocence, she could insistant such an examination be done by a female registered medical practitioner and with regard to decency1. The National Commission for Women had endorsed the Law Commission's recommendation.

1. See paras. 2.5-2.6.

4.3.3. The Bill (NCW) has recommended the insertion of the following proviso to section 54, namely:

"Provided that where the arrested person is a female, the examination of the body of such person shall be made only by or under the supervision of a female registered medical practitioner."

In essence this amendment reflects the principle underlying sub-section (2) of section 53 which deals with examination of women accused by women doctors at the request of police officers.

4.3.4. The 1994 Bill does not contain a provision to this effect.

43.5. We, however, are of the view that the proviso referred to above is a salutary provision and section 54 be amended to that effect.

5.1. Section 157 deals with the procedure for investigation of offences by the police.

5.2. The Bill (NCW) has proposed the insertion of the following proviso to section 157, namely:

"(a) Provided further that in relation to an offence of rape, the investigation under this sub-section shall be conducted only at her residence by a woman police officer and the person on whom such offence is alleged to have been committed is a woman under fifteen years of age, she should be questioned only in the presence of her parents or social workers appointed for the locality and the questioning should be as brief as possible."

(b) in sub-section (2), for the word "proviso", the word "the first proviso" shall be substituted.

5.3. The 1994 Bill does not contain this provision.

5.4. We are in agreement with the amendment as approved by the National Commission for Women. However, we feel that the age of the woman to be questioned only in the presence of her parents etc. should be eighteen and not fifteen. The U.N. Convention on the Rights of the Child, 1989 to which India is a party, defines 'child' as:

"For the purposes of the present Convention a child means every human, being below the age of eighteen years, unless, under the law applicable to the child, majority is attained earlier."

Consequently, in accordance with the Convention, it is desirable to raise the age to eighteen in the above provision.

6.1. Section 160(1) deals with police officer's power to require attendance of witnesses. Under this provision, the investigating police officer can, by a written order, require the attendance of any person who is acquainted with the facts and circumstances of the case and is within the limits of his police station or of any adjoining police station. The proviso to sub-section (1) exempts, a person below fifteen years of age or a woman from attending any place other than their place of residence. The provision is intended to afford special protection to children and woman against exploitation and harassment resulting from the abuse of powers by the police.

6.2. This amendment has been effected as a sequel to the Law Commission Reports on "Rape and Allied Offences" and "Women in Custody".

6.3. But the Bill (NCW) has suggested that in sub-section (1), for the proviso, the following proviso shall be substituted, namely:

"Provided that no male person under the age of eighteen years or a woman should be required to attended at any place other than the place in which such male person or woman resides."

6.4. We approve of this recommendation as eminently desirable as a protection to children (both male and female) and women. By specifying the age of eighteen years only to male persons, the provision extends to all women irrespective of their age.

6.5. The Bill (NCW) has also suggested the incorporation of the following provisions after sub-section (2) of section 160 in the Code of Criminal Procedure:

"(3) Where under this Chapter, the statement of a person under the age of twelve years is to be recorded either as first information of an offence or in the course of investigation into an offence, or the woman is a person against whom an offence under sections 354 or 376B of the Indian Penal Code is alleged to have been committed or attempted, the statement shall be recorded either by a female police 'officer or by a person authorised by such organisation interested in the welfare of women or children and recognised in this behalf by the State Government by notification in the Official Gazette.

(4) Where the case is one to which the provisions of sub-section (3) apply and a female police officer is not available the officer-in-charge of the police station shall, in order to facilitate the recording of the statement, forward to the person referred to in that sub-section, a written request setting out the points on which information is required to be elicited from the woman.

(5) The person to whom such a written request is forwarded shall, after recording the statement of the woman, transmit the record to the officer-in-charge of the police station.

(6) Where the statement recorded by such person as forwarded under sub-section (5), appears in any respect, to require clarification or amplification on specified matters and such person shall thereupon record the further statement of the woman in conformity with the request and return the papers to the officer-in-charge of the police station.

(7) The statement of the woman recorded and forwarded under sub-sections (3) to (6) shall, for the purpose of the law relating to the admissibility in evidence of the statement made by any person, be deemed to be a statement recorded by a police officer."

6.6. The origin of this suggestion in its embryonic form can be traced to the Law Commission's Reports on "Rape and Allied Offences"1 and "Women in Custody"2

1. See paras. 3.24 and 3.25.

2. See para. 2.11.

6.7. The Bill (NCW) has gone beyond the Law Commission's earlier recommendations in that, insisting on the presence of a female police officer. Though the presence of such female officer is useful and necessary, their absence should not lead to delay in the investigation of the offences. Sub-sections (4), (5), (6) and (7) referred to above obligates the officer-in-charge of the police station to forward the person to a representative of, a government recognised women's organisation and the statement recorded by such person shall be deemed to be a statement recorded by the police officer.

6.8. It may be pointed out that the 1994 Bill does not incorporate the above amendment.

6.9. We are of the opinion that section 160 be amended on the lines suggested above subject to certain modifications. The recommendation made in sub-section (4) of NCW Bill is not practicable having regard to the present condition and dearth of female police officers. It may also not be practicable for the 'victim or any person interested in her to approach the person mentioned in sub-section (3).

Instead, we suggest that sub-section (4), may be amended to the effect that where a female police officer is not available and to contact the person mentioned in sub-section (3) is difficult, the officer-in-charge of the police station, for reasons to be recorded in writing, shall proceed with the recording of the statement of the victim in the presence of a relative of the victim.

Further, the age of "twelve years" be raised to "eighteen years"; in conformity with the. Convention on the Rights of the Child.

7.1. Clause 19 of the 1994 Bill seeks to insert new section 464A, in the Code to provide for a medical examination of the victim of rape by a registered medical practitioner of a government hospital or in his absence, by any other registered medical practitioner and also for an early despatch of the medical report to the investigating officer, who shall forward it to the concerned magistrate:

"44A (1) Where, during the stage when an offence of committing rape or attempt to commit rape is under investigation; it is proposed to get the person of the woman with whom rape is alleged or attempted to have been committed or attempted, examined by a medical expert such examination shall be conducted by a registered medical practitioner employed in a hospital run by the Government or a local authority and in the absence of such a practitioner, by any other registered medical practitioner, with the consent of such woman or of a person competent to give such consent on her behalf and such woman shall be forwarded to such registered medical practitioner without delay.

(2) The registered medical practitioner to whom such woman is forwarded shall without delay examine her person and prepare a report of her examination, giving the following particulars namely:

(i) the name and address of the woman and of the person by whom .she was brought;

(ii) the age of the woman;

(iii) whether the woman was, previously; used to sexual intercourse; (iv) marks of injury, if any, on the person of the woman;

(v) general mental condition of the woman; and

(vi) other material particulars in reasonable detail.

(3) The report shall state precisely the reasons for each conclusion arrived at.

(4) The report shall specifically record that the consent of the woman or of the person competent to give such consent on her behalf to such examination had been obtained.

(5) The exact time of commencement and completion of the examination shall also be noted in the report.

(6) The registered medical practitioner shall without delay forward the report to the investigating officer who shall forward it to the Magistrate referred to in section 173 as part of the documents referred to in clause (a) of sub-section (5) of that section.

(7) Nothing, in this section shall be construed as rendering lawful any examination without the consent of the woman or of any person competent to give such consent on her behalf.

Explanation.-For the purposes of this section "examination" and "registered medical practitioner" shall have the same meaning as in section 53."

7.2. The recommendation of new section 164A was made by the Law Commission as early as 1980 in its 84th Report on Rape and Allied Offences. However, it was not incorporated in the 1983 Criminal Law (Amendment) Bill.

7.3. We are of the view that the insertion of section 164A is eminently desirable subject to the modification that medical examination be made preferably by a female medical practitioner. A speedy and detailed medical examination of rape victims by doctors is essential for effective trial of rape offences. Likewise, speedy dispatch of the report to the investigation officer is also necessary.