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By Aneesha Mathur: Over the past several days, wrestlers have been protesting at Jantar Mantar in Delhi, demanding the arrest of Wrestling Federation of India chief Brij Bhushan Sharan, accused of sexual harassment. India Today TV takes a look at the allegations against Singh and what the law says.
THE ALLEGATIONS
The Delhi Police has filed two FIRs against Brij Bhushan Sharan Singh after the Supreme Court intervened. “The first FIR has been registered under the POCSO Act along with relevant sections of the Indian Penal Code (IPC). It was filed based on the allegations of a minor. The second FIR was registered for a comprehensive investigation into the complaints by other complainants under relevant sections pertaining to outraging of modesty,” the Delhi Police said in a statement.
The sections included in the FIRs are as follows:
Section 354 of the IPC: Assault or criminal force on a woman with intent to outrage her modesty – Whoever assaults or uses criminal force on any woman, intending to outrage or knowing it to be likely that, shall be punished with imprisonment of either description for a term which shall not be less than one year but which may extend to five years, and shall also be liable to fine.
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The offence is a cognizable and non-bailable offence, which means that bail can only be granted by a Magistrate’s Court after considering the issue and hearing arguments from the prosecution and the complainant.
Section 354A of the IPC: Sexual harassment and punishment for sexual harassment – A man committing physical contact and advances involving unwelcome and explicit sexual overtures, demanding or requesting sexual favours, or showing pornography against the will of a woman, or making sexually coloured remarks, shall be guilty of the offence of sexual harassment.
It further says, any man who commits physical contact and advances involving unwelcome and explicit sexual overtures, demands or requests sexual favours, or shows pornography against the will of a woman shall be punished with rigorous imprisonment for a term which may extend to three years, or with a fine, or with both.
Any man who makes sexually coloured remarks shall be punished with imprisonment of either description for a term which may extend to one year, or with a fine, or with both.
This is a cognizable but bailable offence, which means that while a police officer must register a complaint, the accused can get bail from the police station.
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Section 354D of the IPC: Stalking – Any man who follows a woman and contacts, or attempts to contact such woman to foster personal interaction repeatedly despite a clear indication of disinterest by such woman; or monitors the use by a woman of the internet, email or any other form of electronic communication, commits the offence of stalking.
Whoever commits the offence of stalking shall be punished on first conviction with imprisonment of either description for a term which may extend to three years, and shall also be liable to a fine; and be punished for a second or subsequent conviction, with imprisonment of either description for a term which may extend to five years, and shall also be liable to a fine. The offence is bailable in the first offence but becomes non-bailable if more than one complaint is filed.
Section 10 of the POCSO Act: Punishment for aggravated sexual assault – Whoever commits aggravated sexual assault on a minor shall be punished with imprisonment of either description for a term which shall not be less than five years but which may extend to seven years, and shall also be liable to a fine. This provision is a non-bailable offence.
The POCSO Act defines “aggravated sexual assault” as sexual assault or touching the body of a minor without penetration with sexual intent committed by a “person in authority”, which includes several definitions, including “public servant” or a person “in the ownership or management or staff, of any institution providing services to the child,” or a person “in position of trust or authority of a child.”
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WHAT DOES THIS MEAN?
With three of the offences being non-bailable and “serious” offences, the demand for Brij Bhushan Sharan Singh’s arrest is continually being made. However, the provisions of Section 41A of the IPC and multiple Supreme Court judgments hold that the arrest of an accused is not mandatory if the maximum punishment prescribed for the offence is less than seven years in jail.
In the Arnesh Kumar and Satender Antil verdicts on the arrest and bail procedures, the Supreme Court noted that “even for a cognizable offence, an arrest of the accused is not mandatory and that an arrest for offences punishable with imprisonment below seven years or extending to seven years can only be made if the investigating officer is satisfied that there is a reason to believe that the accused committed the offence and that there is necessity for such an arrest. Pertinently, Section 41 mandates the IO to record the reasons while choosing to arrest or not choosing to arrest.”
Legal experts say that in cases involving sexual assault of a minor, arrest of the accused is “the norm” due to the seriousness of the offence.
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Speaking to India Today TV, senior advocate Ramesh Gupta questioned why an arrest has not been made yet. “Section 10 of the POCSO is a non-bailable and a serious offence with a minimum sentence of five years. The police have already conducted a preliminary inquiry. So why the delay? In so many other cases, the police file immediate FIRs and arrest the accused even when they are MLA/MPs. Why are the police not arresting Singh? This is a misuse of the discretion granted to the police,” Gupta said.
Senior advocate and former Additional Solicitor General Siddharth Luthra also said that arrest is the “norm” in serious offences but it is within the discretion of the investigating officer.
“The prerogative to arrest is purely with the police. But in serious offences, arrest is the norm. The offences under POCSO are non-bailableâæ So if there is an investigative need, then arrest is a consequence likely to happen,” Luthra said, adding that “As far as allegation of the police dragging its feet is concerned, the Supreme Court is monitoring the matter. Therefore, we should wait and see what directions are passed by the court.”
Advocate Tarannum Cheema also pointed out that the “priority” in cases like these is to ask the accused to join the investigation, which has not yet been done according to the wrestlers.
“The law under the Criminal Law Amendment Act 2018 was made more stringent after the Nirbhaya case. Section 173 of the Code of Criminal Procedure (CrPC) says the investigation of rape of a child may be completed within two months. In that regard, it can be said that the intention of the legislature would be to ensure effective investigation into offences with regard to a child at the earliest. Questioning of the accused must be done for sure. Once a cognizable offence is reported and an investigation is set into motion, the accused must be joined in the investigation as a primary step,” Cheema said.
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WHAT WRESTLERS SAID
The wrestlers have been calling for Singh’s “immediate arrest” since one of the complainants is a minor. The police have not yet arrested Singh, and according to the wrestlers, had called the complainants to register their statements this week after the Supreme Court’s intervention.
One of the lawyers handling the case told India Today TV that when the minor had been called by the police to register her statement under section 161 of CrPC, she was “questioned and cross questioned for almost two hours”. The police are yet to complete the recording of her statement.
On Wednesday, senior advocate Narender Hooda sought permission to file a sealed-cover document, giving details of “what has happened to the complainant women in the case since January till today”. The Supreme Court, however, asked Hooda to hand over the confidential document to the judges during the hearing scheduled for tomorrow, and give a copy of the sealed document to the Solicitor General who is representing the police in the matter.
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