The autorickshaw driver, who filmed the horrific rape of a homeless woman in public in Visakhapatnam, was arrested on Wednesday after the police registered a case against him under section 354C of the Indian Penal Code (IPC), and section 67A of the Information Technology Act (IT Act). He was subsequently released by the police, and sources now claim that he has gone underground out of fear of retribution by the accused rapist.
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The footage filmed by the auto driver was given to the police, and was reported to have assisted in identifying the alleged rapist, and was also published by several news channels and digital media sites. The incident had subsequently sparked a debate about whether the numerous people who observed the rape had any responsibility, and should they have done something to stop it.
What Crimes has the Auto Driver Been Accused of?
The auto driver has been booked for the following offences by the police:
- Section 354C, IPC – Voyeurism. This offence was added in 2013 as part of the amendments to criminal law suggested by the Verma Committee. It criminalises watching or capturing the image of a woman engaging in a private act (which she would expect to not be observed by anyone else), or the dissemination of such an image, by a man. It is punishable with 1-3 years imprisonment and a fine. Just taking a video of a woman being raped would seem to violate this provision.
- Section 67A, IT Act – Publishing or transmitting material containing sexually explicit act. Under this provision, anyone who publishes or transmits, or causes to be transmitted any material (in electronic form) which contains a sexually explicit act, can be punished with maximum imprisonment of five years, and a fine of upto Rs 10 lakhs. Unlike the voyeurism charge, this offence requires the publishing or transmission – just taking the video would not violate this.
It should be noted that charges have not been formally framed yet – the eventual chargesheet may include other offences as well.
Auto Driver Booked for Circulating the Video to Multiple People
One may understandably be confused about why the police would register a case against the auto driver, given that he provided the video to the police. It is arguable that the case could still be made out even in those circumstances, but to clarify why the auto driver was booked for these offences, The Quint spoke to the police officer in charge of the area, Assistant Commissioner of Police (ACP), Anne Narasimha Murthy.
Murthy said that the auto driver was arrested because the police had found that he had sent the video taken on his phone to seven people, and not just to the police. The video was shared by the auto driver with at least two media persons, as well as sent to other private citizens.
According to the ACP, these actions violated the privacy of the rape victim, whose identity is meant to be protected (see for example section 228A of the IPC, which criminalises publication of any matter which can disclose the identity of the victim). As the accused not only filmed the rape but also disseminated the material to others, the case also attracted section 67A of the IT Act .
The ACP clarified that the auto driver had not, in fact, come forward to provide the video to the police, but instead, this footage was taken from him when the police arrived on the scene. He also denied that the case was a result of pressure from above, as alleged by The Times of India, and that this was done by the police themselves when they looked through the auto driver’s phone, and saw that he had sent the video to multiple people.
Do the Charges Hold Up? Yes
Section 354C, IPC
As mentioned earlier, this section was only introduced into the criminal code recently, which means that there is not a lot of existing jurisprudence on how to interpret it. This is relevant because the offence of voyeurism, as defined therein, requires the woman being watched or whose image is captured, to be “engaging in a private act in circumstances where she would usually have the expectation of not being observed”.
It may be argued that this was not a private act, since this was a crime committed out in the open, and therefore, the expectation of privacy would not exist – though this would be a tenuous argument to raise. The concept of a private act, according to Explanation 1 to section 354C includes sexual acts “not of a kind ordinarily done in public”, which should cover this situation.
The auto driver could possibly try to argue that he wasn’t taking the video in this manner, that he was actually only taking it to provide evidence to the police.
Even in such a situation, given that none of the regular IPC exceptions per se apply to such conduct, the offence could still be made out. However, he might have been able to argue that no expectation of privacy could be there where the person was trying to provide information to the police. ACP Murthy also agreed that if the auto driver had taken the video only to the police, they would not have booked him under this section.
However, because he sent the video to other people, such an argument is not open to him, and the charge of voyeurism should easily stand.
Section 67, IT Act
Section 67A is also clearly violated, as he transmitted (defined in the IT Act as electronically sending something with the intent of it being viewed by other persons) what was undisputedly material containing a sexually explicit act – and by virtue of transmitting this to the media, caused it to be published there as well.
Not a Question of Punishing Bystanders
The specific nature of the offences, for which the auto driver has been booked, shows that this is not a case of trying to punish bystanders. There has been a great deal of anger expressed that such a heinous crime could be committed in broad daylight and nobody intervened to stop it, including by Maneka Gandhi, Union Minister for Women and Child Development, who said that:
Everybody here is culpable... the people who were thrill seekers preferring to let a woman suffer rather than help her. I am totally outraged by their behaviour... by the behaviour of the man who raped her, and by the people, who by doing nothing, helped it happen.
The Andhra Pradesh Women’s Commission chairperson Nannapaneni Rajakumari also said that she would urge the police to identify the passersby who didn’t help the woman. However, there is no law in India which requires regular citizens to intervene to stop the committing of a crime, and therefore, it is problematic if the police identify the passersby and go after them.
It is possible, in such situations, that people do not intervene as they did not think they could help. The issue is certainly a difficult ethical conundrum, though arguably a good rule of thumb would be that if one cannot physically intervene, one should do everything to summon the police, and actively provide information and evidence to the police.
This could very well include taking a video of a crime to ensure the perpetrator is brought to justice, which is genuinely possible, given the prevalence of mobile cameras. However, if the intent behind taking videos of such incidents is for personal gratification, to send to others, or share it on social media, this will clearly be against the law, and those doing it should be ready to face the consequences.
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