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The offence is a cognizable offence, hence once convicted a person cannot get probation. A person could be prosecuted for possessing and promoting child pornography.
32,608 cases were reported in 2017 while 39,827 cases were reported in 2018 under the POCSO Act. Not only that, in the very recent times on an unfortunate note the consumption of Child Pornography in India spiked by 95% during the period of lockdown. Keeping in mind an alarming rate of increase in such incidents and cases government took a major step in year 2019 to amend the existing Act by passing a bill in Rajya Sabha which emphasised on increase the punishment for offenders upto 20 years in jail or even death penalties in rare cases, for committing an heinous crime of child abuse.
According to the Act, all the incidents of child sexual abuse are mandatory to be reported. Abstaining from reporting the crime, is also a crime and can lead upto six months of jail. To control the cases government introduced an official site to dodge a complaint.
However, since India strongly believe in ‘Audi Alteram Partem’ in cases where a person is falsely alleged of the crime, he/she can hire a lawyer to prove the contrary.
On a positive side, the law does not consider it as a ‘slight harm’ instead it is commended to be a detested crime even as a society.Under The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013, sexual harassment is the unwelcoming, sexually determined behaviour, which includes
– A physical contact and advances,
– Demand or request of sexual favours,
– Sexually coloured remarks,
– Showing pornography, and
– Any other unwelcome physical, verbal or non verbal conduct which is sexual in nature.Sexual Harassment of a women at the workplace is considered a criminal offence, which violates a women’s rights, and discourages them to work in unsafe hostile environments. With the increase of sexual harassment cases in India, the Supreme Court of India observed the need for strict legislation and introduced guileless for the protection of women’s right at workplace. In the case of Vishakha v. State of Rajasthan, the Supreme Court laid down the Vishakha guidelines with the aim of curbing the growing incidents of sexual harassment, and thereby providing measures to prevent sexual harassment of women at their workplaces.
The immediate cause for filing the petition was the gang rape of a social worker in a village in Rajasthan. While giving the judgement in this case, the judiciary aimed to ensure a safe working environment for all working women.
The guidelines lays down the definition of sexual harassment and a complaints mechanism for the redress of any women who has been sexually harassed. It also aims at providing preventive steps by providing appropriate work conditions and by spreading awareness.After 16 long years and numerous rape cases, The Vishakha guidelines were replaced by The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. This act was enacted with the object to provide a safe working environment for women through effective redressal and complaint mechanisms. Several concepts and guidelines from the Vishakha case have been reflected in this act.
Although making the laws strict will not be of much help, until and unless women who have been victim to harassment at their workplace speak up and fight for their rights. At the same time, employers need to follow a zero tolerance policy towards sexual harassers, and build a safe and secure environment for working women.~ Vinisha Bhavnani
Sexual harassment is a violation of art 14 and art 21 of the Indian constitution. It is unwanted sexual behavior that is offensive, humiliating, or intimidating, the inappropriate promise of rewards in exchange for sexual favors. Any gender can be the victim of sexual harassment. Under Section 354-A, Indian penal code (IPC),1860 deals with sexual harassment and punishment of sexual harassment.
Action to be taken under Sexual harassment:
1. Talk to the offender- you can try to resolve the situation by explaining to the person who is harassing you that their behavior is unwanted, unacceptable, and can sue you for this.
2. Be informed- If you are being harassed at the workplace, school, find out the policies and procedures for preventing and handling sexual harassment.
3. Save the evidence – Document everything in your diary that happened including the name of the person, when it has occurred, where it has occurred, names of the person who saw it, and what you have done to stop it. Save text messages, comments, notes, and emails. This evidence can help if you make a complaint.
4. Inform/tell someone- Inform someone about this behavior that causing trouble to you. They can help, advise, and fight for you in case you’re uncomfortable. If in the workplace, talk to the HR manager about the discomfort which you’re facing, who will be able to help you decide what to do.
5. File complaint- If the above terms are not refrained by the person then it would be better to lodge a complaint against that person under POSH and IPC. Register an FIR against the person who harassed you and complaint to the Judicial Magistrate under section 200 of CrPC.
Case law:
1. Vishaka & Ors. V/S State of Rajasthan (Air 1997 Sc 3011)
2. Tuka Ram And Anr vs the State of Maharashtra, AIR 1979 SC 185 (Mathura Case)
3. Mukesh v. State (NCT of Delhi), (2017) 6 SCC 1 : (2017) 2 SCC (Cri) 673] at SCC p. 261 para 518
~ LAVANITA CHITYALASection 354-A of The Indian Penal Code, 1860 deals with the offence of sexual harassment. The prominent case on sexual harassment at workplace is Vishakha v. state of Rajasthan.
There are certain acts committing of which amounts to sexual harrasment, such acts are:
1. Physical contact and advances involving unwelcome and explicit sexual overtures; or,
2. a demand or request for sexual favours;
3. showing pornography against the will of a woman; or
4. making sexually coloured remarks
shall be guilty of the offence of sexual harassment.
All the above mentioned offences expect the one mentioned in point no. 4 are liable to be punished with rigorous imprisonment for a term which may extend to three years, with or without fine.
The punishment for making sexually coloured remarks shall be punished with imprisonment of either description for a term which may extend to one year with or without fine. The offence mentioned under this section is cognizable and non bailable and is triable by any magistrate.
~ AKANSHASOMAS. 354 A
Sexual harassment
A man committing any of the following acts—
physical contact and advances involving unwelcome and explicit sexual overtures; or
a demand or request for sexual favors; or
showing pornography against the will of a woman; or
making sexually colored remarks shall be guilty of the offense of sexual harassment1.
Any man who commits the offense specified in clause (i) or clause (ii) or clause (iii) of sub-section (1) shall be punished with rigorous imprisonment for a term which may extend to three years, or with fine, or with both.
Any man who commits the offense specified in clause (iv) of sub-section (1) shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both.Punishments
Sexual harassment of the nature of unwelcome physical contact and advances or a demand or request for sexual favours or showing pornography – Upto 3 years or Fine or Both
Sexual harassment of the nature of making sexually coloured remark – Upto 1 year or Fine or Both~ Yukta Pandey
A man committing any of the following acts—
1. physical contact and progresses concerning undesirable and open sexual approaches; or
2. a call or request for sexual intention; or
3. viewing pornography against the will of a woman; or
4. saying sexually colored comments, will be guilty of the offense of sexual harassment.• Any person who compels the offense stated in clause (i) or clause (ii) or clause (iii) of sub-section (1) shall be punished with severe detention for a term which may extend to three years, or with a fine, or with both.
• Any person who commits the offense specified in clause (iv) of sub-section (1) shall be punished with imprisonment of either account for a term which may extend to one year or with fine, or with both.
• Section 354A penalizes an assault on, or use of criminal strength to, a woman with the purpose of offending her humility or with the information that it is likely that he will thereby disgrace her restraint.For this to happen there must be either a physical attack or use of criminal power against a woman who according to section 10 of the Indian Penal Code is a female human being of any age. The criminal must either propose to disgrace the humility of the woman or must know that he is thereby likely to disgrace her reticence.
In-State v. Major Singh case the accused marched into a room where a girl child of seven and a half months was sleeping. He stripped himself naked below his waist and kneeled over the child and fingered her vagina, broke her hymen, and caused a tear in her vagina.
The Supreme Court while held him guilty under section 354 witnessed that when any act was done to or in the company of a woman is clearly indicative of sex rendering to the mutual notions of mankind that act will fall within this section. The core of a woman’s humility is her sex. The guilty intention or information of the accused is the bottom of the problem.~ Nancy nelson
As per section 151 of Indian Contract Act it is the duty of the bailee to take reasonable care of the goods bailed as per the bailment. He is responsible to take the reasonable care as a normal man would need in course of protection. He will be held responsible for the loss occurred if he don’t take any reasonable care. But as per section 152 of Indian Contract act if there is any extra need of care need to be taken by the bailee towards the goods bailed then bailor under this section may include the extent of the other care which has to be taken by the bailee. And make him liable for any loss if he don’t take care as per agreed upon the contract. And if there is case where the bailor forgets to tell the bailee to handle the goods bailed with extra care then inorder to avoid the liability of bailee from his side he have to take the reasonable care which is mentioned as the duty of him to maintain under section 151 of the Indian Contract Act. For example if gold is entrusted to goldsmith for making a ornament out of it.So,in this case the Goldsmith is the bailee and the person who gives gold is the bailor.So,the goldsmith arranged a safe inorder to protect the gold from any unauthorized use.This is reasonable care is enough to avoid liability from the bailee side.If there is no safe and it is permitted to everyone to use gold as if they can then there is a problem and bailor can sue bailee for that.And in other case the bailor himself agreed to contract with bailee for arranging a watchman around a safe as per section 152 of Indian Contract and then tells that he is going to bear expenses of watch man for the protection of gold. But,the bailee making use of it was reluctant to arrange watchman around the safe for protection. But he took reasonable care which was specified as per section 151 of Indian Contract Act even though he takes reasonable care he is still liable for not maintaining a watchman.This is the working of sections 151 and 152 of Indian Contract act.
It is the duty of the bailee to take reasonable care of the goods which is stated under section 151 of the Indian Contract Act, in respect of goods bailed to him. The bailee is bound to take as much care as the goods belong to him. The standard of care is same whether the bailment is gratuitous or for reward.
So, a bailee is liable when the goods suffer loss due to the negligence on the part of bailee. However, under Section 152 of the Act, the standard of care of ordinary prudent man can be increased by entering into a contract, between the bailor and the bailee. In that situation the bailee, in order to save himself from any liability, would be bound to take as much care, as provided by the terms of contract. In the absence of any such contract, if the bailee has taken care as an ordinary prudent man of the goods bailed, he is not responsible for the loss, destruction or deterioration of the goods bailed. To explain the lines with an example, if a diamond ring is kept by its owner A for safe custody with another person B and B is not to receive any reward for it. the bailee should keep it locked in an iron safe, or some other safe place but not keep it in his lumber room, simply because the bailment is gratuitous.
Similarly, if a cow is delivered for safe custody it is sufficient if it is kept in the backyard properly enclosed and even if it is for reward, no one would expect it to be kept in the drawing room. If the goods get stolen, lost or otherwise destroyed, even after the bailee has taken reasonably good care, the bailee would not be liable for this loss. The bailor, would have to bear this loss.~ Priya Singh
Question: – As per section 71 of the Indian Contract Act, 1872, can a person be held liable for the damage of good which belongs to another person?
Section 71 of the Indian Contract Act, 1872 deals with ‘responsibility of finder of goods’. This section states that “a person who finds goods belonging to another, and takes them into his custody, is subject to the same responsibility as a bailee”.
The interpretation of this section enumerates that the liability of a person, who used or destroyed another’s belongings, will be liable in the same manner as the liability of bailee, which has been discussed under section 151 and 152 of ICA, 1872.
Section 151 and 152 of the Indian Contract Act, 1872 talks about the care, which needs to be taken by bailee and the liability for the things bailed to him, respectively. Both these sections clearly mentioned that a bailee is bound to take care of the thing bailed to him in a well prudent way as a common man will do care, otherwise, he would be liable for the loss and damage caused to the good. However, his liability will not arise if he has taken all due care and there is no negligence from his part.
Thus, under section 71 of Indian Contract Act, 1872, a person will be liable, only if, the finder of goods has not taken due care of good and due to his irresponsible behaviour or negligence; the loss has been suffered by the original owner of the good.
~ ASHISH RANJANSection 151 of the Indian Contract Act, 1872 mentions care to be taken by the bailee.
Bailee is a person to whom goods are being delivered. Bailee is responsible to take standard care of the goods bailed. Here, standard care refers to taking necessary measures and precautions just like an ordinary prudent man will take inorder to protect his goods.
For example, A (bailor) transfers some shirts to B (bailee) for dry cleaning. That night before leaving the shop, B while taking due care, lock up his store and takes the keys with him. The next morning, A’s shirt goes missing. Will B be liable?
NO! Because he took all the measures and standard of care required.
~ Aribba SiddiqueAccording to section 151, it is the duty of a Bailee to take care of goods bailed to him. Bailee should take care of these goods as an ordinary man will take care of his goods of the same value, quality and quantity.
Thus if the Bailee takes due care of goods then he will not be liable for any loss and deterioration of such goods. Also the bailee needs to take the same degree of care of goods whether the Bailment is for reward or is a gratuitous Bailment.
~ Kaanchi Ahuja
Unsoundness of mind is an absolute defense to any criminal charge as persons suffering from unsoundness of mind are deemed incapable of possessing the necessary mens rea to commit a crime. Section 84 of the Indian Penal Code, 1860 vindicates a person of mental incapacity who does a criminal act from criminal liability. The burden of proof that the mental condition of the accused was, at the crucial point of time, such as is described by section 84, lies on the accused to prove who claims the benefit of this exemption vide section 105 of the Indian Evidence Act, 1872. However, the protection of other people is also to be kept in mind. Thus, if they are being attacked by unsound persons and accordingly, a provision has been made under the Code of Criminal Procedure 1973 for the detention and care of persons of unsound mind.
In addition, not every person suffering from a mental disease can be allowed to avoid responsibility for a crime by invoking the plea of insanity. A person whose reasonability to understand the nature of his act or that what he was doing was wrong or contrary to law, is so impaired is exempted from criminal responsibility and comes within the purview of legal insanity. Unsoundness of mind or insanity, according to medical science, is a disease of the mind, which impairs the mental faculty of man. However, in legal terms, insanity is not defined anywhere. But taking into account various judicial decisions, insanity means a disease of the mind which impairs the cognitive faculty, namely, the reasoning capacity of a man to such an extent as to render him incapable of understanding the nature and consequences of his act. It excludes from its purview, the insanity caused due to emotional and volitional factors. It is the only insanity of a particular or appropriate kind, which is regarded as insanity at law that will excuse a man from criminal liability. Thus, it is only legal insanity that is a total defense to a criminal charge. Medical insanity needs to be accompanied by legal insanity to be accepted as a defense.The words “incapacity to know the nature of the act” in Section 84 of the Indian Penal Code doesn’t necessarily mean that the provision will function as a general defence only in cases of mental illness, in fact mental illness will not always exempt a person from his criminal liability. That is to say, legal insanity and medical insanity are distinct entities. The Indian judiciary has time and time again held that the mere abnormality of mind, partial delusion, fit of rage, compulsive behaviour of a person does not fall within the ambit of Section 84 of the Indian Penal Code (IPC). Moreover, the onus to prove “unsound mind” as under the section is on the accused as provided by Section 105 of the Indian Evidence Act.
In the case of Hari Singh Gond v State of Madhya Pradesh, the Supreme Court observed that Section 84 implicitly puts up a legal test of responsibility so as to prove insanity. Interestingly “unsoundness of mind” (or the like) is nowhere defined in the IPC. Though the courts appreciate the concept as equivalent to insanity but the term ‘insanity’ itself does not have a precise definition. The term entails a range of mental disorders of varying gravity. Since, we lack the statutory definition, we ought to rely on the judicial interpretations in order to understand what qualifies as “unsound mind” under the law. In the case of Surendra Mishra v State of Jharkhand, it was observed that every patient of mental illness cannot ipso facto escape criminal liability under Section 84, IPC. Ergo, the law is concerned with legal insanity which may not amount to medical insanity.
In Shrikant Anandrao Bhosale v State of Maharashtra, the apex court in this case held that while considering whether an offence falls within the ambit of Section 84, circumstances have to be seen in the light of recorded evidence, the two together would prove that whether the offence was committed with the knowledge of the act’s nature or if the accused knew that he is doing what is either law, or in contravention of law. Additionally, the court stated that: “The unsoundness of the mind before and after the incident is a relevant fact.”
Circumstances play a key role in deciding whether the case had grounds for the applicability of Section 84 as a general defence. In the case of Rattan Lal v State of Madhya Pradesh, it was well established by the court that “unsound mind” rests on the time of commission of the act and it is the circumstances before, after and during the offence that determined the applicability of the statutory provision. That is to say that in order to avail the defence of insanity the circumstances may be significant in determining the mental element during the commission of the act and it is the mental element proximate to the act that counts.Section 83 of the Indian Penal Code confers immunity to children up to the age of 12 from criminal liability. When a child is above the age of 7 and below the age of 12, the liability is completely dependent on the maturity of the child. When a child below the age of 12 has the maturity to understand the consequences of the criminal act then the child is liable. Few factors that demonstrate maturity,
• The immediate action of a child after the commencement of the criminal act.
• The conduct of child during the investigation process.
• The nature of the act done by the child.Sometimes, a child lacks the maturity to understand the consequences of the act and thus the child can’t be held liable. The children repeat the act because they fail to realize the real nature of the criminal act and the sequel of it. Thus, the child must be given special care and attention to prevent them from repeating the act and has to impose certain moral values on children and divert their mind in a more positive direction. These acts could be prevented by making the children get engaged in any other activities like games, music.
As per sec 83 of IPC 83. Act of a child above seven and under twelve of immature understanding.—Nothing is an offence which is done by a child above seven years of age and under twelve, who has not attained sufficient maturity of understanding to judge of the nature and consequences of his conduct on that occasion.
Since, the child does not has a maturity level to understand the nature and consequences of the actions, there are high chances of the child repeating his actions.
So, the child can be sent for counselling sessions to make him more aware of not performing those actions again and also make sure that the child is well attending the counselling sessions and responding well to the same.
