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10 YEARS PASSED, GAFFE IN SEC 376(1) & 376(C) OF IPC AS ENACTED IN FEB, 2013 POST-NIRBHAYA INCIDENT  REMAINS UNNOTICED  – HC ADVOCATE 

CHANDIGARH – IT has now been over 10 years since the occurrence of the infamous Nirbhaya incident in the National Capital of Delhi on the fateful night of  Dec 16, 2012.

 The four convicts  in  this heinous Gangrape & Murder of a young paramedical student, whose name got coined as Nirbhaya in mainstream and social media as well as in civil society,   and which incident  indeed  shocked the conscience of the entire nation,  were finally got hanged (till death) in Tihar Jail during dawn of March 20, 2020 after they explored and exhausted all legal remedies right up to rejection of mercy petition by then President of India.

Pertinent that in the aftermath of this gruesome incident, the then Dr. Manmohan Singh led UPA-2 dispensation on Feb 3, 2013  amended (read strengthened) Anti-Rape law i.e. by enacting amendments in both substantive and procedural Criminal Laws  including Sec 376 of Indian Penal Code (IPC), 1860 providing for stringent punishment for Rape via promulgation of Criminal Law (Amendment) Ordinance, 2013.This Ordinance later got passed by the both Houses of Parliament and consequently became an Act of Parliament in April, 2013. Now the point is that

Section 376(1) IPC currently  lays down that

 “Whoever, except  in the cases provided for in sub-section(2),  commits rape,  shall be punished with RIGOROUS imprisonment of EITHER DESCRIPTION for a term_____”.  

 Amidst the same, Hemant Kumar, an Advocate at Punjab & Haryana High Court points out that when the term ‘rigorous’ is itself mentioned in this Section,  then why the term  of ‘either description’ appears thereafter since in Criminal Law imprisonment  means either  simple or else rigorous as per section 53 of Indian Penal Code (IPC).  Similar is the case in prevalent Section 376 C IPC too.

  However, it is pertinent to mention that the description of punishment of both offences as mentioned in First Schedule to Code of Criminal Procedure (CrPC) describes the punishment as Rigorous only, asserted Hemant.

Be that as it may, this grave anomaly/error has continued unabated since the last ten years and perhaps it hasn’t come to anyone’s notice. Even when Modi Sarkar in April, 2018 promulgated an Ordinance and later enacted an Amendment Act  to further strengthen  the Anti Rape Law, although the minimum term of imprisonment in Section 376(1) IPC got increased from seven years to ten years but unfortunately  the above anomaly i.e. “rigorous imprisonment of either description” was not rectified.

The Advocate has exhorted PM Narendra Modi and Union Home Minister Amit Shah to wisely take cognizance in this regard and get the above anomaly removed in Anti-Rape Law via passage of an Amendment Bill in Parliament preferably during  the ongoing Budget Session of Parliament itself.

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