SOME MORE PATIENCE WITH THE VICTIMS
Amendment of sections 376B, 376C and 376D. Given the gravity of
these offences, we recommend enhancement of punishment, with a
minimum punishment of not less than five years. We have also
added an explanation which will govern all these three sections. The
explanation defines “sexual intercourse” to mean any of the acts
mentioned in clauses (a) to (e) of section 375. Explanation to section
375 will, however, apply even in the case of sexual intercourse as
defined by the explanation to this section.
3.4.1. Modifications in sections 376B, 376C and 376D of the Indian
Penal Code recommended. Accordingly, section 376B with
necessary adaptations and changes shall read as follows: “376B.
Sexual intercourse by public servant with person in his custody.
Whoever, being a public servant, takes advantage of his/her official
position and induces or seduces any person, who is in his/her
custody as such public servant or in the custody of a public servant
subordinate to him, to have sexual intercourse with him/her, such
sexual intercourse not amounting to the offence of sexual assault,
shall be punished with imprisonment of either description for a term
which shall not be less than five years and which may extend to ten
years and shall also be liable to fine. Provided that the court may, for
adequate and special reasons mentioned in the judgment, impose a
sentence of imprisonment for a term of less than five years.”
Explanation: “Sexual intercourse” in this section and sections 376C
and 376D shall mean any of the acts mentioned in clauses (a) to (e)
of section 375.
Explanation to section 375 shall also be applicable. “376C. Sexual
intercourse by superintendent of jail, remand home, etc. Whoever,
being the superintendent or manager of a jail, remand home or other
place of custody established by or under any law for the time being in
force or of a women’s or children’s institution takes advantage of
his/her official position and induces or seduces any inmate of such
jail, remand home, place or institution to have sexual intercourse
with him/her, such sexual intercourse not amounting to the offence of
sexual assault, shall be punished with imprisonment of either
description for a term which shall not be less than five years and
which may extend to ten years and shall also be liable to fine.
Provided that the court may, for adequate and special reasons
mentioned in the judgment, impose a sentence of imprisonment for
a term of less than five years.
Explanation 1. “Superintendent” in relation to a jail, remand home or
other place of custody or a women’s or children’s institution includes
a person holding any other office in such jail, remand home, place or
institution by virtue of which he/she can exercise any authority or
control over its inmates.
Explanation 2. The expression “women’s or children’s institution”
shall have the same meaning as in explanation 2 to sub-section (2)
of section 376.
376D. Sexual intercourse by any member of the management or staff
of a hospital with any woman in that hospital. Whoever, being on the
management of a hospital or being on the staff of a hospital takes
advantage of his/her position and has sexual intercourse with any
person in that hospital, such sexual intercourse not amounting to the
offence of sexual assault, shall be punished with imprisonment of
either description for a term which shall not be less than five years
and which may extend to ten years and shall also be liable to fine.
Provided that the court may, for adequate and special reasons to be
mentioned in the judgment, impose a sentence of imprisonment for
a term of less than five years.
Explanation: the expression “hospital” shall have the same meaning
as in explanation 3 to sub-section (2) of section 376.
3.5. Insertion of section 376E. This is a wholly new section
recommended by us. We have called it the offence of “unlawful
sexual contact”. This section is intended to cover a wide variety of
offences including sexual harassment at the work place and sexual
perversions of the kind mentioned in the note submitted by Sakshi.
Sub-section (1) of this new section covers touching, directly or
indirectly, with a part of the body or with an object, any part of the
body
of another person (not being the spouse of such person), with sexual
intent and without the consent of such other person. In case the other
person is below sixteen years of age, we have recommended higher
punishment.
Sub-section (2) is an extension or elaboration of the offence
mentioned in sub-section (1), while sub-section (3) deals with a
case where such offence is committed on a young person — a
person below the age of sixteen years. If the offence of unlawful
sexual contact is committed on a young person by a person with
whom such young person is in a relationship of dependency, the
punishment is rigorous imprisonment which may extend to seven
years or with fine or with both and in case the offender happens to be
the father, grandfather or brother, a still higher punishment is
provided for. In the case of a “young person”, consent is treated as
irrelevant.
(Sections 151, 152 and 153 of the Canadian Criminal Code also
contain similar provisions).