Domestic abuse is a chronic crisis throughout India, and this has only intensified during recent decades. In India, nearly 70 % of people were victims of domestic abuse. As per the report, in India, a woman is raped every 16 minutes, and every four minutes, she experiences cruelty at the hands of her in-laws. The document was troubling, but not entirely unexpected. A 2015-16 National Family Health Survey data analysis shows that an approximate 99.1 percent of incidents of sexual harassment go unreported and that the average Indian woman is 17 times more likely than others to experience sexual abuse by their spouse. Different legislation aimed at shielding women from domestic sexual assault and sexual abuse has largely remained unsuccessful, despite serious changes to the penal code.Anyway, what happens if legislation empowers the culprits with immunity and jeopardizes the victims?
Yes, the contradiction described above is not a mere myth but resides in the Indian Penal Code as a truth. One of the Indian legal administration’s most disturbing and oppressive clauses is that of marital rape. Which is perfectly legal in Indian criminal statutes. The definition of rape in Section 375 covers all types of sexual assault concerning non-consensual intercourse with a woman. It points out in some detail the various circumstances in which permission is either non-existent or vitiated. An exception occurs at the end of the clause of the section. It implies, enough, “Sexual intercourse by a man with his wife, the wife not being under fifteen years of age, is not rape.” According to existing legislation, a woman is presumed to give her unconditional consent to have sexual intercourse with her husband after getting into a marriage. Although forced sexual intercourse in marriage is considered a criminal act in practically every country in the world. India is among the handful of counties that have not yet criminalized marital rape.
Actively there have been writ petitions in the Hon’ble Supreme court and High courts in India concerning the constitutionality of that very exemption. Section 375 (Exception) effectively provides a clear description not only between consent granted by a married and unmarried woman, as well as between married women under the age of 15 and over the age of 15 years. Such a designation isn’t really subject to the ‘comprehensible differential’ test and is, thus, prima facie contrary to the right to equality listed in article 14. In 2017, Independent Thought, an NGO, filed a PIL questioning this incomprehensible distinction and arguing that this defense should also be afforded to married women over 15 years of age. To a considerable point, the Supreme Court complied with these averages and increased the age cap under Section 375 from 15 years to 18 years. This decision, in particular, led to a spike in the number of other writs challenging the constitutionality of the exception itself.
VIOLATION OF FUNDAMENTAL RIGHTS ENSURED BY THE CONSTITUTION
The Constitution of India Under Article 14 safeguards that, “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.” While our Constitution provides equality for all, Indian criminal law is discriminative towards female victims who have been raped and assaulted by their spouses. When in the 1860s IPC was drafted, a married woman was not known to be a separate legal body. Rather, she was deemed to be her spouses’ possession inspired by the theory of Coverture. Coverture is a legal doctrine which was established in the common law of England, where after marriage the rights of women cease to exist and duties were assumed by those of her spouse, in compliance with the legal standing of women were merged with that of husband. During the drafting of the IPC, India was under British rule and its criminal laws were strongly influenced by English rules of Victorian standards. Under Section 375 there is an exception, which effectively exempts the conduct of husbands against their spouses from being called “rape” offence, which was conceptualized on the basis of Victorian patriarchal traditions that did not consider men and women as equivalent.
As of recent, we have moved towards equality, somewhat at least, to protect the rights of women from sexual harassment and rape, but we have failed miserably in proving equal rights to married women entrusted under article 14. The exception under section 375 discriminates against married women by excluding them equal protection from abuse and sexual assault. It categorizes women on the grounds of their marital status which immunizes the actions of men against their spouses. By doing so, it makes it possible for married women to be abused for no reason except their marital status.The categorization created in section 375, between married and unmarried women is indeed contrary to Article 14 because as far as the difference is concerned it has no reasonable connection with the fundamental intent of the article, which negates all kinds of discrimination.
Therefore, any statute that defines a designation that is inappropriate or incidental to the objectives of the law is found to be beyond the legislative structure. As for what is fair, it will still focus on what the judges thought and a new interpretation of law and rationality will arise with any new generation of judges, thereby rendering the Constitution a living text. In order to minimize gender-biased discriminatory care, it is important to stop prejudices based on gender. It is also important that caution be taken when applying the equality test so that the stereotyping enforced by the patriarchal system does not predetermine what is fair classification section 375 of the IPC criminalizes the offense of rape and protects a woman against forceful sexual intercourse against her will and without her consent. The provision hereby grants women immunity from criminal attacks on bodily autonomy and shows the role of the State in punishing those who abuse this bodily autonomy. It is also correct to claim that it aims to preserve the right of choice of women as independent persons.
The Supreme Court in its judgment in Anwar Ali Sarkar and Budhan Choudhary noted that just about every categorization under Article 14 of the Indian Constitution shall be limited to a test of reasonableness which may be carried only if the definition of any categorization has a fair connection with the purpose which the act aims to accomplish. Exception thwarts the intent of Section 375 of protecting women and prosecuting those involved in the barbaric acts of rape.
Married women require protection under the law in their private worlds, just as men and single women do. Although the majority of section 375 of the IPC remains concerned with maintaining a victim’s right. On the other hand, such a right is taken back after marriage and the focus of the statute moves back to protecting the offender of the crime of rape. It completely removes the freedom of conscience of a woman and indeed essentially deprives her of personal rights and her identity. The designation is therefore redundant, incoherent, and in violation of the mandate laid down in Article 14. For the purposes of the law, the removal of the protection of Section 375 of the IPC from victims of the crime of rape purely on the grounds of their marital status is meaningless.
The repercussions of rape are the same for each victim. In fact, section 375 allows husbands to engage in sexual intercourse with their wives forcibly, as they realize that their actions are not deterred or penalized by statute. Since no logical connection has been drawn for the distinction formed between married and unmarried thus the test of reasonableness doesn’t exist which is contrary to Article 14. Besides that, it is increasingly difficult for those married women who are economically and morally dependent on their husbands to avoid oppressive circumstances.
Article 15(1) of the Indian Constitution states that “The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them”. The discrimination in section 375 is the antithesis to article 15(1). The onus is on the state to respect the constitution and put an end to discrimination done towards thousands of married women every day.
Marital rape which is not criminalized under any law in India is a blatant abuse of article 21 as it gives no rights to women to protect herself from being raped by her own husband. Article 21 of the Indian Constitution is one the most important part of the constitution which upholds that any citizen or alien being in India is entitled to the Right to life and personal liberty. The Apex court has widened the aspects of article 21 by interpreting it beyond and between the lines of the article. In recent times the court has interpreted that right to health, right to dignity even during performing death rites, safe environment, and clean air, all fall under the ambit of article 21.
In Justice K.S. Puttuswamy (Retd.) v. Union of India, it was held that privacy is a fundamental right and also covers decisional privacy reflected by an ability to make intimate decisions primarily consisting of one’s sexual or procreative nature and decisions in respect of intimate relations. The court in the aforementioned case did not draw a difference between married or unmarried women and anyone else, the court mentioned it for each and every citizen of India. Thus, any kind of forced sexual intercourse is an infringement of a fundamental right, and the right to privacy and is not bound by the theory of Coverture. The supreme court ruled that privacy starts with the human body and that the principle of cognitive autonomy is at the core of the right to privacy – such that, it is the right of each person to determine when and for what reason his body will be used. And as people cannot sell themselves to slavery, nor should they be assumed to have waived their right to decision-making at the altar of marriage.
Earlier, privacy was conveyed by expressions that the state cannot access the household or access relations. Thus, the men were immune to oppression, unjust power, and violence within the house of an individual.
Should the state really penetrate the sphere of the home? A reaction to this is a “yes”. In the cases of cruelty, divorce, and dowry, it already does, then why put the most atrocious and egregious offense beyond the control of the State and legislation. Why does the marital rape zone ought to stay outside its pale? At the time of the union, the state that does not involve itself but serves as an arbitrator after divorce must secure the right of a woman to her body. With privacy judgment, the scope of privacy has also ventured inside the family and houses of individuals, and communities. However, criminalizing marital rape is just not an issue relating to the privacy of one’s bedroom, it involves ensuring dignity, freedom, and free consent as much as in a bedroom as in a public space.
The continued immunity from the scope of statutory law from marital rape sustains the presumption that the wife is the sole property of the spouse. As stated by Katherine O’ Donnovan: “Its immunity from the purview of the criminal law is explained on the grounds that the female victim is a wife. This justification can be understood in the context of the dominant familial ideology and female sexuality which treats a wife as property and as having no sexual agency or decision making in sexual activity within the marital contract”.
It is proposed that in India, marital rape should be criminalized, because that can be done by applying an approach to violence against women based on individual rights. Indian women’s groups have managed to raise public consciousness and introducing domestic violence laws, but marital rape has not been fully criminalized by removing the difference between marital rape and rape.Yet marital rape will not be criminalized or prosecuted until lawmakers and the Society respects the personal interests of women within the marital framework.
Principles on the sexuality of women, and therefore ideas on non-marital and marital sexual violence in Indian culture, stem from the notion of gender, embarrassment and family’s reputation, rather than the rights of women and individual autonomy. If the lawmakers see rape and sexual assault against a woman and her individual and bodily dignity and humanity, then marital rape and penalty would be a legal offense.
In aims to introduce a changes to the current legislation, we can use a semantic method to individual rights in working to criminalize marital rape in India, even though marital rape is not a government’s problem until society and lawmakers realize that women have individual rights in married life.
A very recent TV show “Criminal Justice: Behind the closed doors” written by Apurva Asrani shows a lawyer who was murdered by his wife late in the night with a knife. The lawyer was one of the “best” lawyers and was a very respected member of society. As the murder mystery folds, it is discovered that the lawyer was raping his wife for last many years and was indulging in non-consensual sex. Due to the taboo and “SHAME”, the victim never opened up.
The plot of the show has an uncanny resemblance to reality. Most of the rapes are not done by strangers, it is someone familiar and known to the victim, owing to such familiarity, the victim is scared to speak up. In the case of marital rape, the victim is none other than the wife and it is seen almost all times that they don’t speak up due to fear of disbanding of the family and the SHAME that it will bring upon them in society.
The exception in article 375 for marital rape is arbitrary and gives undue advantage to men. Getting away with this exception is the only way to let such victims speak up and make sure the accused are well dealt with by the law. Striking this will not be an infringement of privacy rather it will reinstate the foundation of article 21 by giving dignity and much-needed equality to the women who are subject to marital rape.
For the women who have been abused and assaulted, marriage for them is-:“Abandon all ye hope who enter here”
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High Court, while exercising revisional jurisdiction under Section 401 CRPC, cannot convert acquittal into conviction: SC
It is quite significant from all angles to note that the Apex Court has as recently as on January 25, 2022 in a brief, brilliant and balanced judgment titled Joseph Stephen vs Santhanasamy in 2022 LiveLaw (SC) 83 and in Criminal Appeal Nos. 90-93 of 2022 in exercise of its criminal appellate jurisdiction minced no words to state fairly, firmly and forthrightly that a High Court while exercising revisional jurisdiction under Section 401 of the Code of Criminal Procedure cannot convert a finding of acquittal into one of conviction. All the High Courts must always adhere to what the Apex Court has laid down in this case so clearly, cogently and convincingly. Very rightly so!
To start with, this brief, brilliant, bold and balanced judgment authored by Justice MR Shah for a Bench of Apex Court comprising of himself and Justice Sanjiv Khanna sets the ball rolling by first and foremost putting forth in para 1 that, “Feeling aggrieved and dissatisfied with the impugned common judgment and order dated 14.05.2020 passed by the High Court of Judicature at Madras, Madurai Bench in Criminal Revision Application Nos. 323 to 326 of 2013, by which the High Court, in exercise of its revisional jurisdiction under Section 401 Cr.P.C., has set aside the order of acquittal passed by the first appellate Court and has convicted the accused, original accused nos. 6 to 8 have preferred the present appeals.”
While elaborating briefly on the facts, the Bench then envisages in para 2 that, “The facts leading to the present appeals in a nutshell are as under:
That all the original accused were charged and tried for the offences punishable under Sections 147, 148, 324, 326, 307, 506(ii) r/w section 149 IPC. That the Chief Judicial Magistrate, Tiruchirapalli, by judgment dated 28.09.2012, convicted the accused under the aforesaid offences except Sections 307 and 506(ii) IPC and thereby acquitted the accused under Sections 307 and 506(ii) IPC.
2.1 Feeling aggrieved and dissatisfied with the judgment and order of conviction passed by the Chief Judicial Magistrate, Tiruchirapalli, the accused preferred Criminal Appeal No. 92/2012 in the Court of III Additional Sessions Judge, Tiruchirapalli (hereinafter referred to as the ‘first appellate Court’). Challenging the acquittal of the accused under Sections 307 and 506(ii) IPC, the victims (private respondents herein) filed Criminal Appeal Nos. 108 to 110 of 2012.
2.2 The first appellate Court, vide judgment dated 18.01.2013, allowed the appeal preferred by the accused and acquitted the accused. The criminal appeals filed by the victims against acquittal of the accused under Sections 307 and 506(ii) IPC came to be dismissed.
2.3 Feeling aggrieved and dissatisfied with the common judgment and order passed by the first appellate Court allowing criminal appeal No. 92/2012 preferred by the accused, the victims – private respondents herein preferred criminal revision application nos. 323 to 326 of 2013 before the High Court under Section 397 r/w 401 Cr.P.C. By the impugned judgment and order, while exercising the revisional jurisdiction under Section 401 Cr.P.C., the High Court has set aside the judgment and order passed by the first appellate Court allowing Criminal Appeal No. 92/2012 and acquitting the accused, and consequently has convicted the accused for the offences other than the offences under Sections 307 & 506(ii) IPC and has restored the judgment and order of conviction and sentence passed by the trial Court. The High Court has however modified the sentences imposed by the trial Court.
2.4 Feeling aggrieved and dissatisfied with the impugned common judgment and order passed by the High Court reversing the acquittal and thereupon convicting the accused, while exercising the revisional jurisdiction under Section 401 Cr.P.C., original accused nos. 6 to 8 have preferred the present appeals.”
Briefly stated, the Bench then envisages in para 7 that, “Having heard the learned counsel for the respective parties, the following questions arise for the consideration of this Court:
i) Whether the High Court in exercise of the revisional jurisdiction under Section 401 Cr.P.C. is justified in setting aside the order of acquittal and convicting the accused by converting the finding of acquittal into one of conviction?;
ii) In a case where the victim has a right of appeal against the order of acquittal, now as provided under Section 372 Cr.P.C and the victim has not availed such a remedy and has not preferred the appeal, whether the revision application is required to be entertained at the instance of a party/victim instead of preferring an appeal?; and
iii) While exercising the powers under sub-section (5) of Section 401 Cr.P.C. treating the revision application as petition of appeal and deal with the same accordingly, the High Court is required to pass a judicial order?”
To put things in perspective, the Bench then envisages in para 8 that, “Now so far as the first issue, whether in exercise of the revisional jurisdiction under Section 401 Cr.P.C., the High Court can convert a finding of acquittal into one of conviction and what is the procedure to be followed by the High Court, as such, the said issue is now not res integra. On the aforesaid, few decisions of this Court, referred to hereinabove, are required to be considered.
a) In the case of K. Chinnaswamy Reddy (supra), while considering the similar provision under the old Code, namely, Section 439(4) Cr.P.C., it is observed and held that “though sub-section (1) of Section 439 of the Criminal Procedure Code authorised the High Court to exercise in its discretion any of the powers conferred on a Court of Appeal by Section 423, yet sub-section (4) specifically excludes the power to convert a finding of acquittal into one of conviction”. It is observed that “at that stage the revisional court stops short of finding the accused guilty and passing sentence on him by ordering a retrial”. What order should be passed by the High Court in a revision application against the order of acquittal, while exercising the revisional jurisdiction, has been dealt with and considered in paragraph 11, which reads as under:
“11. The next question is what order should be passed in a case like the present. The High Court also considered this aspect of the matter. Two contingencies arise in such a case. In the first place there may be an acquittal by the trial court. In such a case if the High Court is justified, on principles we have enunciated above, to interfere with the order of acquittal in revision, the only course open to it is to set aside the acquittal and send the case back to the trial court for retrial. But there may be another type of case, namely, where the trial court has convicted the accused while the appeal court has acquitted him. In such a case if the conclusion of the High Court is that the order of the appeal court must be set aside, the question is whether the appeal court should be ordered to rehear the appeal after admitting the statement it had ruled out or whether there should necessarily be a retrial. So far as this is concerned, we are of opinion that it is open to the High Court to take either of the two courses. It may order a retrial or it may order the appeal court to rehear the appeal. It will depend upon the facts of each case whether the High Court would order the appeal court to rehear the appeal or would order a retrial by the trial court. Where, as in this case, the entire evidence is there and it was the appeal court which ruled out the evidence that had been admitted by the trial court, the proper course in our opinion is to send back the appeal for rehearing to the appeal court. In such a case the order of the trial court would stand subject to the decision of the appeal court on rehearing. In the present case it is not disputed that the entire evidence has been led and the only defect is that the appeal court wrongly ruled out evidence which was admitted by the trial court. In the circumstances we are of opinion that the proper course is to direct the appeal court to rehear the appeal and either maintain the conviction after taking into consideration the evidence which was ruled out by it previously or to acquit the accused if that is the just course to take. We should like to add that the appeal court when it rehears the appeal should not be influenced by any observations of the High Court on the appreciation of the evidence and should bring to bear its own mind on the evidence after taking into consideration that part of the evidence which was considered inadmissible previously by it. We therefore allow the appeal subject to the modification indicated above.”
b) In the case of Ram Briksh Singh (supra), after considering the decision in the case of K. Chinnaswamy Reddy (supra) and earlier decision in the case of D. Stephens v. Nosibolla, AIR 1951 SC 196, it is observed and held that the High Court in a revision application against the order of acquittal and while exercising the powers of the revisional Court can set aside an order of acquittal and remit the case for retrial where material evidence is overlooked by the trial Court.
c) Again, in the case of Sheetala Prasad (supra), it is reiterated that Section 401(3) Cr.P.C. prohibits conversion of a finding of acquittal into one of conviction and in such cases retrial or rehearing of the appeal might be ordered.
d) In the case of Ganesha (supra), it is observed in paragraphs 10 to 12 as under:
“10. Section 386(a) thus authorises the appellate court to reverse an order of acquittal, find the accused guilty and pass sentence on the person found guilty. However, sub-section (3) of Section 401 of the Code contemplates that the power of revision does not authorise a High Court to convert a finding of acquittal into one of conviction. On the face of it, the High Court while exercising the powers of revision can exercise all those powers which have been conferred on the court of appeal under Section 386 of the Code but, in view of sub-section (3) of Section 401 of the Code, while exercising such power, cannot convert a finding of acquittal into one of conviction.
11. However, in a case where the finding of acquittal is recorded on account of misreading of evidence or non-consideration of evidence or perverse appreciation of evidence, nothing prevents the High Court from setting aside the order of acquittal at the instance of the informant in revision and directing fresh disposal on merit by the trial court. In the event of such direction, the trial court shall be obliged to reappraise the evidence in light of the observation of the Revisional Court and take an independent view uninfluenced by any of the observations of the Revisional Court on the merit of the case. By way of abundant caution, we may herein observe that interference with the order of acquittal in revision is called for only in cases where there is manifest error of law or procedure and in those exceptional cases in which it is found that the order of acquittal suffers from glaring illegality, resulting into miscarriage of justice. The High Court may also interfere in those cases of acquittal caused by shutting out the evidence which otherwise ought to have been considered or where the material evidence which clinches the issue has been overlooked. In such an exceptional case, the High Court in revision can set aside an order of acquittal but it cannot convert an order of acquittal into that of an order of conviction. The only course left to the High Court in such exceptional cases is to order retrial.
12. The view, which we have taken finds support from a decision of this Court in Bindeshwari Prasad Singh v. State of Bihar [(2002) 6 SCC 650 : 2002 SCC (Cri) 1448] , in which it has been held as follows: (SCC pp. 654- 55, para 12)
“12. … Sub-section (3) of Section 401 in terms provides that nothing in Section 401 shall be deemed to authorise a High Court to convert a finding of acquittal into one of conviction. The aforesaid subsection, which places a limitation on the powers of the Revisional Court, prohibiting it from converting a finding of acquittal into one of conviction, is itself indicative of the nature and extent of the revisional power conferred by Section 401 of the Code of Criminal Procedure. If the High Court could not convert a finding of acquittal into one of conviction directly, it could not do so indirectly by the method of ordering a retrial. It is well settled by a catena of decisions of this Court that the High Court will ordinarily not interfere in revision with an order of acquittal except in exceptional cases where the interest of public justice requires interference for the correction of a manifest illegality or the prevention of gross miscarriage of justice. The High Court will not be justified in interfering with an order of acquittal merely because the trial court has taken a wrong view of the law or has erred in appreciation of evidence. It is neither possible nor advisable to make an exhaustive list of circumstances in which exercise of revisional jurisdiction may be justified, but decisions of this Court have laid down the parameters of exercise of revisional jurisdiction by the High Court under Section 401 of the Code of Criminal Procedure in an appeal against acquittal by a private party.””
As an analogy, the Bench then feels it prudent to observe in para 9 that, “Applying the law laid down by this Court in the aforesaid decisions and on a plain reading of sub-section (3) of Section 401 Cr.P.C., it has to be held that sub-section (3) of Section 401 Cr.P.C. prohibits/bars the High Court to convert a finding of acquittal into one of conviction. Though and as observed hereinabove, the High Court has revisional power to examine whether there is manifest error of law or procedure etc., however, after giving its own findings on the findings recorded by the court acquitting the accused and after setting aside the order of acquittal, the High Court has to remit the matter to the trial Court and/or the first appellate Court, as the case may be. As observed by this Court in the case of K. Chinnaswamy Reddy (supra), if the order of acquittal has been passed by the trial Court, the High Court may remit the matter to the trial Court and even direct retrial. However, if the order of acquittal is passed by the first appellate court, in that case, the High Court has two options available, (i) to remit the matter to the first appellate Court to rehear the appeal; or (ii) in an appropriate case remit the matter to the trial Court for retrial and in such a situation the procedure as mentioned in paragraph 11 of the decision in K. Chinnaswamy Reddy (supra), referred to hereinabove, can be followed. Therefore, in the present case, the High Court has erred in quashing and setting aside the order of acquittal and reversing and/or converting a finding of acquittal into one of conviction and consequently convicted the accused, while exercising the powers under Section 401 Cr.P.C. The order of conviction by the High Court, while exercising the revisional jurisdiction under Section 401 Cr.P.C., is therefore unsustainable, beyond the scope and ambit of Section 401 Cr.P.C., more particularly sub-section (3) of Section 401 Cr.P.C. Issue no.1 is answered accordingly.”
Furthermore, the Bench then stipulates in para 10 that, “Now so far as issue no.2, namely, in a case where no appeal is brought though appeal lies under the Code, whether revision application still to be entertained at the instance of the party who could have appealed, the answer lies in sub-section (4) of Section 401 Cr.P.C. itself. Sub-section (4) of Section 401 Cr.P.C. reads as under:
“(4) Where under this Code an appeal lies and no appeal is brought, no proceeding by way of revision shall be entertained at the instance of the party who could have appealed.”
10.1 It cannot be disputed that now after the amendment in Section 372 Cr.P.C. after 2009 and insertion of proviso to Section 372 Cr.P.C., a victim has a statutory right of appeal against the order of acquittal. Therefore, no revision shall be entertained at the instance of the victim against the order of acquittal in a case where no appeal is preferred and the victim is to be relegated to file an appeal. Even the same would be in the interest of the victim himself/herself as while exercising the revisional jurisdiction, the scope would be very limited, however, while exercising the appellate jurisdiction, the appellate Court would have a wider jurisdiction than the revisional jurisdiction. Similarly, in a case where an order of acquittal is passed in any case instituted upon complaint, the complainant (other than victim) can prefer an appeal against the order of acquittal as provided under sub-section (4) of Section 378 Cr.P.C., subject to the grant of special leave to appeal by the High Court.
10.2 As observed by this Court in the case of Mallikarjun Kodagali (supra), so far as the victim is concerned, the victim has not to pray for grant of special leave to appeal, as the victim has a statutory right of appeal under Section 372 proviso and the proviso to Section 372 does not stipulate any condition of obtaining special leave to appeal like subsection (4) of Section 378 Cr.P.C. in the case of a complainant and in a case where an order of acquittal is passed in any case instituted upon complaint. The right provided to the victim to prefer an appeal against the order of acquittal is an absolute right. Therefore, so far as issue no.2 is concerned, namely, in a case where the victim and/or the complainant, as the case may be, has not preferred and/or availed the remedy of appeal against the order of acquittal as provided under Section 372 Cr.P.C. or Section 378(4), as the case may be, the revision application against the order of acquittal at the instance of the victim or the complainant, as the case may be, shall not be entertained and the victim or the complainant, as the case may be, shall be relegated to prefer the appeal as provided under Section 372 or Section 378(4), as the case may be. Issue no.2 is therefore answered accordingly.”
Going ahead, the Bench then points out in para 11 that, “Now so far as the power to be exercised by the High Court under sub-section (5) of Section 401, Cr.P.C., namely, the High Court may treat the application for revision as petition of appeal and deal with the same accordingly is concerned, firstly the High Court has to pass a judicial order to treat the application for revision as petition of appeal.
The High Court has to pass a judicial order because sub-section (5) of Section 401 Cr.P.C. provides that if the High Court is satisfied that such revision application was made under the erroneous belief that no appeal lies thereto and that it is necessary in the interests of justice so to do. While treating with the application for revision as petition of appeal and deal with the same accordingly, the High Court has to record the satisfaction as provided under sub-section (5) of Section 401 Cr.P.C. Therefore, where under the Cr.P.C. an appeal lies, but an application for revision has been made to the High Court by any person, the High Court has jurisdiction to treat the application for revision as a petition of appeal and deal with the same accordingly as per sub-section (5) of Section 401 Cr.P.C., however, subject to the High Court being satisfied that such an application was made under the erroneous belief that no appeal lies thereto and that it is necessary in the interests of justice so to do and for that purpose the High Court has to pass a judicial order, may be a formal order, to treat the application for revision as a petition of appeal and deal with the same accordingly.”
What’s more, the Bench then hastens to add in para 12 that, “Now the next question is what order should be passed in a case like the present. This Court may either set aside the impugned judgment and order passed by the High Court setting aside the acquittal and convicting the accused so as to enable the High Court to remit the matter to the first appellate Court to rehear the appeal after considering the findings recorded by it or to remit the matter to the High Court to treat the revision application as a petition of appeal against the order of acquittal, which otherwise is permissible under sub-section (5) to Section 401 Cr.P.C. As observed hereinabove, as such, while exercising the powers under sub-section (5) to Section 401 Cr.P.C. to treat the revision application as a petition of appeal, the High Court is required to pass a judicial order. However, considering the fact that even otherwise being victims they are having the statutory right of appeal as per proviso to Section 372 Cr.P.C., we deem it fit and proper to remit the matter to the High Court to treat the revision applications as petition of appeals under Section 372 Cr.P.C. and to decide the same in accordance with law and on their own merits. The same would be in the interests of all, namely, the victims as well as the accused, as the appellate Court would have a wider scope and jurisdiction as an appellate Court, rather than the revisional court.”
As a corollary, the Bench then holds in para 13 that, “In view of the above and for the reasons stated above, the impugned common judgment and order passed by the High Court reversing the acquittal and convicting the accused is hereby quashed and set aside. The matters are remitted to the High Court.
The High Court is directed to treat the revision applications as appeals under Section 372 Cr.P.C. and thereafter to decide and dispose of the same in accordance with law on their own merits.”
Finally, the Bench then concludes by holding in para 14 that, “The present appeals are accordingly allowed in the aforesaid terms.”
All in all, the Apex Court has in its notable judgment left no stone unturned to make it absolutely clear that High Court while exercising its revisional jurisdiction under Section 401 CrPC cannot convert acquittal into conviction. All the High Courts must certainly fully, firmly and finally confirm with what has been laid down by the Apex Court in this leading case! No denying it in anyway!
FROM FANTASY TO REALITY: VIEWING AND SPREADING CHILD PORNOGRAPHY ON SOCIAL MEDIA TO MOLESTING CHILDREN, A DOUBLE-EDGED SWORD
The phenomenal growth in the accessibility of child pornography on social media has created a strange opportunity for individuals to have an anonymised, free of cost, and unrestrained approach to a virtually limitless range of lewd texts, pictures and animated gifs, and audio-visual materials. The online social media platforms are the pathways to offline molestation. Fantasy and reality are closely interwoven, though whether ‘thinking’ leads to ‘doing’ remains the critical question. Some people think watching child pornography is “just” an example of pseudo-reality, which does not molest children. However, on the other hand, those pictures of child pornography testify to a child’s sexual abuse in the past, present or even in the future. In a recent study conducted on 155 people who were involved in child pornography, it was found that 84% of such people had abused and molested a child at least once in their lifetime. Also, the “National Commission for Protection of Child Rights (NCPCR)” has reported near about 420 child sexual abuse and exploitation cases during the first month of the lockdown period of COVID-19 via social media platforms.
Therefore, we can say that child sexual offenders more often exploit children sexually through the collection, creation or dissemination of child pornography.
ONLINE EXPLOITATION OF CHILDREN THROUGH CHILD PORNOGRAPHY
The widespread use of social media and online networking sites to inflict child abuse has resulted in a profusion of photographs and web pages in circulation, which is difficult to gauge precisely. The We Protect Global Alliance claimed in 2019 that in the previous year, US technology companies referred 18.4 million pieces of Child Sexual Abuse Material (CSAM) to the “National Centre for Missing and Exploited Children (NCMEC)”. In 2019, EUROPOL explicitly stated that approximately 46 million different pictures or videos related to sexual abuse was found in its database. To track the distribution of digitised pornographic photographs of children is not the only difficult thing, but to follow the child abuse cases is also a difficult task as the child victims refuse to report sexual abuse due to the fear of exclusion from society and embarrassment. Children may be utterly clueless that they have been used or harmed at times.
According to the International Telecommunication Union (ITU), the significant internet users are youngsters: 41% are below the age of 15 years, and 90% are between the ages 15 to 24 years. The “new” ways of social interaction among children and adults include sharing digitised sexual photos or audio-visual contents, which increase the risk of circumstances becoming violent or abusive. The “self-generated” sexual content which was once shared voluntarily has the potential to extend beyond the desired receiver, and it can have long-term repercussions for the child. The question is not with the creation of sexual material per se, as children have a right to express themselves, but the issue is with the distribution of such photographs by a third person without consent. As a result, while sharing sexual messages in a consensual way to interact socially and sexually with others, the sharing of sexual content without permission represents a criminal act that requires urgent legislative action”. Children are at risk not because of technology used; instead, they utilise a tool while being exploited.
SADIST PSYCHOLOGY: CHILD PORNOGRAPHY LEADING TO CHILD MOLESTATION
The main reason behind child pornography leading to child molestation is the sadist psychology of paedophiles. Such individuals force psychological, physical pain and suffering on the child victim to arouse sexually or gratify themselves. They get sexually aroused by the response of the child victim to the infliction of pain and suffering. Usually, the offenders entice or force the child victims to obtain satisfaction. In some cases, the seductive molesters have become sadistic molesters. However, the behaviour of such molesters is unknown, whether the sadistic desires were always present and covered up for some other reason or whether they were there for some time being. Whatever the case may be, it is fortunate enough that such sadistic child molesters do not appear to be significant in number.
Those who gather or distributes child pornography, on the other hand, is aiding or abetting the sexual abuse and exploitation child depicted.
RISE IN THE SEXUAL ABUSE OF CHILD AND DEMAND FOR CHILD PORNOGRAPHY DURING COVID-19 IN INDIA
There was an alarming increase in the demand for child pornography content after the government had imposed a lockdown in the country during the COVID-19 outbreak. This lockdown has revealed a dark side of our society – many child rapists, paedophiles and viewers of child pornography have doubled their online activity, which is turning the online world more toxic for children. According to the emergency service “CHILDLINE 1098”, the calls from distressed children amid sexual abuse and exploitation was grown up by 50 per cent in the second week of lockdown in India. The India Child Protection Fund (ICPF) said in its report that on average, five million searches for content on child porn on the internet were done in over 100 cities in India during the lockdown period; by now, this demand may have increased by 100%. Also, according to the report shared by United Nations, EUROPOL, and ECPAT, the need for child sexually abusive material shows a steady increase during the COVID-19 lockdowns, which aims children online through social networking sites to groom them or to befriend them, establishing an emotional connection with them and persuading them to engage in sexual activities through images or videos.
INTERNATIONAL LAWS AND CONVENTIONS ON THE CRIMINALISATION OF CHILD PORNOGRAPHY
Sexual abuse and assault on children have always been illegal. As a result, child pornographic content involving the violent sexual exploitation and abuse of children has also been criminalised. On the other hand, the mere possession of child porn material has not always been an offence. Although, collecting, possessing, and distributing child pornographic material was first criminalised by the general common law prohibition of obscene materials.
Two instruments, namely, “United Nations Conventions on the Rights of the Child (UNCRC)” and “Optional Protocol on the Sale of Children, Child Prostitution, and Child Pornography (OPSC)”, both of which came into force on January 18, 2002, have been established at the UN level. Many more regional, national, and international conventions safeguard children against Child Pornography and molestation.
• According to UNCRC, every child has some basic fundamental rights, and from which one is safeguarding children from violence, abuse, exploitation and mistreatment. Years before the issue exploded, Articles 34 to 36 of UNCRC provided by far the most direct international reference to the topic of child pornography.
• As established in Article 2 of OPSC, “the sale of children, prostitution of children and child pornography” are all prohibited, and also requires Member Nations to effectively implement legislation and regulations criminalising and effectively penalising nonetheless those acts linked to sexual abuse or violence on children and exploitation as provided in Article 3, namely the “sale of children to exploit them sexually, offer, obtain, or possession of children for sex trafficking and production, circulation, distribution, import and export, sale or possession of child pornographic content including an attempt to and conspiring or involvement in committing any of the activities mentioned above”.
• “The Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children”,which is a companion to the “United Nations Convention against Transnational Organized Crime”, mandates all 165 signatory States to make trafficking of any person, including child trafficking and sexual exploitation of children, illegal and criminalise it.
• “Council of Europe Convention on Cybercrime”aims to facilitate provisions on online molestation and abuse of children and some ICT-based harassment of children and other such offences under Article 9, which is regarding child pornography. This Convention has 42 Member States, including six nations of the Council of Europe that are not a member. It was enacted in 2001 and was one of the first conventions that lay down Internet Crimes provisions.
• “Council of Europe Convention on the Protection of Children Against Sexual Exploitation and Sexual Abuse” contains child pornography in its preamble. It clearly states that sexual abuse can be used as a synonym for child pornography. It also includes Sexual Tourism, which is not mentioned in any other Conventions. But this Convention omitted the ambit of prosecution for viewing and collecting or possessing child pornography.
• “African Charter on the Rights and Welfare of the Child”mandates the Member nations to protect children from all forms of sexual abuse and exploitation of a child and to safeguard the children from online sexual offences using Child Pornography under Article 27.
In the United States of America, various statutes safeguard children’s rights and protect them from sexual abuse and child pornography. Some of them are –
• “National Strategy for Child Exploitation, Prevention and Interdiction.”
• Ashcroft vs Free Speech Coalition, this case interprets “simulated images”. It puts forward a question regarding Internet Child Pornography: “What is the basis of classifying simulated or pseudo pornographic photographs?”
LAWS AND REGULATIONS IN INDIA DEALING WITH CHILD PORNOGRAPHY
In India, 42% of the overall population comprises people under eighteen. This figure says that India has the largest population of children worldwide. It becomes the first and foremost responsibility of the country to safeguard the interest of children and protect them from any abuse and exploitation to envisage future development. The provisions and legislations about criminalising child pornography are discussed below.
In 2019, the members of Lok Sabha had passed a bill named “Protection of Children from Sexual Offences (Amendment) Bill, 2019” (now an Act), which seeks to amend the landmark legislation for child rights “Protection of Children from Sexual Offences Act, 2012” and provides that death penalty will be awarded to the person on committing aggravated sexual assault on children. Also, it criminalises and penalises child pornography in India.
According to “Section 67-B of the Information Technology Act, 2000”, “whoever seeks to download, browse, collects and downloads child pornography is an offender.”
The Indian government has taken some steps to curb child pornography in India. However, these legislations and provisions are insufficient to curb this problem. In India, viewing child pornography privately is not illegal, leading to the sexual abuse of children. In 2015, the Supreme Court of India remarked that blocking the porn websites in India can’t stop adults from watching porn under the privacy of the room’s four walls. However, “sale, distribution and exhibition of obscene material to any person below the age of 20 years” is illegal and a cognisable offence under Section 273 of Indian Penal Code, 1860, despite which child pornography is available for sale and distributed in India. Laws and their implementations are the north and south poles of Earth.
There are a lot of national and international instruments that address the problem of child exploitation and abuse on the internet due to the increase in Child Sexual Abuse Material (CSAM). But there is no proper enforcement of laws. There is a gap in the national efforts in addressing the issue. Also, there is no enhanced law in India that penalises the production and transmission of Child Pornography separately. Child Pornography must be dealt with individually and viewed as a more harmful and heinous offence keeping in mind the vulnerability of children. Also, there must be provisions where it is mandated to report Child Sexual Abuse Material (CSAM) by the Internet Service Providers (ISPs) to track the child sexual abuse offenders. But in India, mediators are not responsible for reporting third party information to any agency. Similarly, the payment industries or banks are also not responsible for communicating to the law enforcement agencies any transfer or transaction of money to purchase or sell CSAM. One more step can be taken, i.e., to oblige ICT companies to use tech tools to keep an eye on the activities happening on their platforms within their networks. In India, jurisdictional issues create hindrances in law enforcement. It causes a delay in getting permission from the Central Government to investigate the case. Therefore, the heinous offence’s procedural and prosecution should speedily deliver justice. There are various undue consequences, e.g., relationship mismanagement with a partner, change in appetite and phenomenal insomnia, remained between work and psycho-social repercussions on childhood or adolescent sexual assault. Psychological effects can hurt their lives, leading to stress or depression and even other products like mental trauma. This issue impacts both the sufferers and even their family members and society. Considering the adverse effect of porn on young minds, it is need of the hour that the national laws on child pornography be tightened up, and it’s high time now to punish those people of sadistic minds who enjoy watching children in pain and then abuse and harass children sexually. Managing, producing, distributing and exhibiting child pornography leads to child molestation and causes mental and physical harm to the child victims. In the age of enjoying childhood, the children are being used for filming child pornography and being sexually assaulted. Therefore, to protect children’s rights, stringent steps must be taken by the international instruments and the Indian government to curb such ill practices.
The main reason behind child pornography leading to child molestation is the sadist psychology of paedophiles. Such individuals force psychological, physical pain and suffering on the child victim to arouse sexually or gratify themselves. They get sexually aroused by the response of the child victim to the infliction of pain and suffering. Usually, the offenders entice or force the child victims to obtain satisfaction.
A Kazi can act as mediator to settle disputes but cannot adjudicate them and pass orders like a decree: MP HC
While drawing the red line on what a Kazi can do in his role to settle dispute, the Indore Bench of Madhya Pradesh High Court on January 12, 2022 has in a learned, laudable, landmark and latest judgment titled Aadil vs Union of India and others in 2022 LiveLaw (MP) 13 in Writ Petition No. 24741/2018 (PIL) clearly laid down that a Kazi can entertain a dispute and acts as a mediator to settle the dispute between the members of the Muslim community but he cannot adjudicate the dispute like a court and pass an order like a decree. It deserves mentioning that the Bench of Justice Vivek Rusia and Justice Rajendra Kumar Verma noted that an order of the Kazi granting Talaq (divorce) by way of Khula has no legal sanctity and can simply be ignored. The petitioner named Aadil moved a Public Interest Litigation (PIL) plea alleging that All India Muslim Personal Law Board and their Quazi/Kazi are running parallel judicial system against the provisions of the Constitution of India and also against the established system of law and justice in this country.
It cannot be lightly dismissed what Aadil has said because he is not a person of some other religion but is himself a Muslim. The PIL by him alleges that Quazi/Kazi are running their own courts and passing orders and decrees in personal matters. This is definitely a very serious matter what Aadil alleges and India is certainly not Pakistan or Afghanistan or some Islamic country that we can dismiss this very lightly! We are a secular country from the beginning to the finish!
To be sure, Aadil also referred to his own case and pointed out that on an application filed by his wife for divorce by “Khula”, the divorce was granted to him. The PIL also averred that respondent No. 7 (Chief Quazi, Masjid 22, Chhoti Gwaltoli, Indore) under the shelter of President and General Secretary of All India Muslim Personal Law Board and others is entertaining such types of disputes and passing the orders in the matter which are liable to be brought before the Court for adjudication. How can there be a parallel judiciary in a secular country like India? It is true that what Aadil has alleged is very serious. Let us see now what the Madhya Pradesh High Court rules in its verdict step by step.
To start with, the ball is set rolling in para 1 of this extremely commendable, courageous, cogent and creditworthy judgment authored by the Bench of Justice Vivek Rusia and Justice Rajendra Kumar Verma of Indore Bench of Madhya Pradesh High Court wherein it is put forth that, “Petitioner has filed the present petition under Article 226 of the Constitution of India as a Public Interest Litigation (PIL) alleging that respondents No. 4 to 8 are running parallel judicial system against the provisions of the Constitution of India and also against the established system of law and justice in this country. They are running their own courts and passing orders and decrees in personal matters.”
To put things in perspective, the Bench then envisages in para 2 that, “The petitioner is claiming himself to be a victim of such type of orders passed by respondents No. 4 to 6. The petitioner has filed one of the orders passed by respondent No. 7 on an application filed by his wife i.e. respondent No. 8 for divorce which is called “Khula” by making all sorts of allegations against him. She sought Talaq under the Kanoon-A-Shariat. On an application of respondent No.8, respondent No. 7 has called the petitioner to appear to submit a reply. The petitioner has submitted a reply on 13.02.2017 refuting the allegations made against him. According to the petitioner, respondent No. 7 has proceeded with the matter and ordered the Talaq (divorce) by way of Khula which is not permissible under the Indian judicial system. The petitioner has alleged that respondent No. 7 under the shelter of respondents no. 4, 5 & 6 is entertaining such types of disputes and passing the orders in the matter which are liable to be brought before the Court for adjudication. When no action has been taken the petitioner has approached this Court by way of this writ petition (PIL).”
As it turned out, the Bench then observed in para 3 that, “After notice the respondent No.2 has filed the return raising the issue of maintainability of the petition and availability of alternate remedy to the petitioner as his personal interest is involved in this matter. Respondent No.2 has further submitted that section 4 of the Kazi Act, 1880 does not empower the Kazi to confer any judicial or administrative power.”
Furthermore, the Bench then discloses in para 4 that, “Respondent No.6, All India Muslim Personal Law Board has filed the reply by submitting that the personal law relating to marriage and dissolution of marriage has to be governed by the personal law of Muslims as recognized by them in terms of their religious denominational texts. It is further submitted that clear instructions are given to Kazis who are appointed by the All India Muslim Personal Law Board not to entertain the disputes wherein the parties thereof have already approached the Court of Law or do not consent for an amicable resolution of the dispute. Thus, they are not parallel judicial systems established in derogation of or in conflict with the recognized judicial system in the country. It is further submitted that the petitioner did not agree to the pronouncement of Khula to respondent No.8 in terms of its communication dated 13.2.2017 addressed to respondent No.7 and further considering the fact that respondent no.8 has initiated criminal proceedings against the petitioner. Respondent no.7 ought to have closed the mediation without further proceeding in the matter. The rest of the respondents have not filed the reply despite service.”
Be it noted, the Bench then very rightly enunciates in para 5 pointing out that, “During the course of arguments, Shri Mathur, learned Senior Counsel appearing on behalf of respondents No.6 & 7 has placed reliance over the judgment passed by the Apex Court in the case of Vishwa Lochan Madan vs. Union of India and others reported in (2014) 7 SCC 707 in which the Apex Court has held that fatwa/Darul-Qazas/Nizam-e-Qazas are not a decree and is neither binding on anyone nor enforceable-only an adjudication by a legal authority sanctioned by the law is enforceable and binding- only voluntary submissions/acceptance to fatwa is permissible. It is further held that the establishment of such a court to administer justice to the member of a particular religion in the name of Dar-ul-Qazas/Nizam-e-Qazas is impermissible and have no legal status.”
It is also worth noting that the Bench then hastens to add in para 6 that, “Paras-13 & 14 of the judgment are reproduced below:
13 As it is well settled, the adjudication by a legal authority sanctioned by law is enforceable and binding and meant to be obeyed unless upset by an authority provided by law itself. The power to adjudicate must flow from a validly made law. Person deriving benefit from the adjudication must have the right to enforce it and the person required to make provision in terms of adjudication has to comply that and on its failure consequences as provided in law is to ensue. These are the fundamentals of any legal judicial system. In our opinion, the decisions of Dar-ul-Qaza or the Fatwa do not satisfy any of these requirements. Dar-ul-Qaza is neither created nor sanctioned by any law made by the competent legislature. Therefore, the opinion or the Fatwa issued by Dar-ul-Qaza or for that matter anybody is not adjudication of dispute by an authority 10 Page 11 under a judicial system sanctioned by law. A Qazi or Mufti has no authority or powers to impose his opinion and enforce his Fatwa on any one by any coercive method. In fact, whatever may be the status of Fatwa during Mogul or British Rule, it has no place in independent India under our Constitutional scheme. It has no legal sanction and cannot be enforced by any legal process either by the Dar-ul-Qaza issuing that or the person concerned or for that matter anybody. The person or the body concerned may ignore it and it will not be necessary for anybody to challenge it before any court of law. It can simply be ignored. In case any person or body tries to impose it, their act would be illegal. Therefore, the grievance of the petitioner that Dar-ul-Qazas and Nizam-e-Qaza are running a parallel judicial system is misconceived.
14. As observed earlier, the Fatwa has no legal status in our Constitutional scheme. Notwithstanding that it is an admitted position that Fatwas have been issued and are being issued. All India Muslim Personal Law Board feels the “necessity of establishment of a network of judicial system throughout the country and Muslims should be made aware that they should get their disputes decided by the Quazis”. According to the All India Muslim Personal Law Board “this establishment may not have the police powers but shall have the book of Allah in hand and sunnat of the Rasool and all decisions should be according to the Book and the Sunnat. This will bring the Muslims to the Muslim Courts. They will get justice”.
Most significantly and also most remarkably, what forms the real heartbeat of this noteworthy judgment is then elaborately stated in para 7 wherein it is held that, “In view of the aforesaid judgment and the arguments advanced by Shri Mathur, learned Senior Counsel, the order passed by the chief Kazi on an application filed by respondent No.8 has no legal sanctity. Respondent No.7 being a Kazi is only entitled to enter into a negotiation/mediation between the parties in order to settle the dispute. The M.P. State Legal Services Authority is promoting community based mediation in the State of M.P where the trained mediators of a particular community can act as a mediator to resolve the dispute between the parties in order to end the litigation at the very inception. The Legal Services Authority, Jabalpur and Indore has trained more than 70 volunteers of different communities and religions to act as mediators to settle the dispute between the members of the community out of Court. If a Kazi entertains a dispute and acts as a mediator to settle the dispute between the members of the community that would be permissible but he cannot adjudicate the dispute like a court and pass an order like a decree. In view of the law laid down by the Apex Court in the case of Vishwa Lochan Madan (supra), such an order has no legal sanctity and can simply be ignored. So far the matrimonial dispute between the petitioner and respondent No. 8 is concerning the same is not liable to be examined in this writ petition for which they are free to avail the remedy available under the law. This Court has not expressed any opinion in respect of their matrimonial matter.”
Finally, the Bench then concludes by holding in para 8 that, “Accordingly, the present writ petition is disposed of.”
In a nutshell, the Indore Bench of Madhya Pradesh High Court comprising of Justice Vivek Rusia and Justice Rajendra Kumar Verma have laid all the questions looming on such a key topic to rest by specifically specifying everything on the powers of Kazi in this notable judgment. The Bench has clarified quite explicitly that a Kazi can certainly entertain disputes and act like a mediator to settle the dispute between the members of the community but he cannot adjudicate the dispute like a court and pass an order like a decree. While mentioning about the Vishwa Lochan Madan judgment delivered by none other than the Apex Court, the Bench also ruled categorically that an order of the Kazi has no legal sanctity and can be simply ignored. All the Kazis and so also the All India Muslim Personal Law Board must have no doubt now on this.
On a closing note, I am sure that the Kazis and so also the All India Muslim Personal Law Board too will happily now adhere unfailingly to what has been laid down so briefly, boldly and brilliantly in this leading case by the Indore Bench of Madhya Pradesh High Court! We have seen also in India that Muslims have always adhered strictly to what is laid down by the Courts! We have also seen how even in the high-profile Ayodhya case, the Muslims have demonstrated how much they believe in the “rule of law” for which they deserve to be applauded! No denying it!
Person deriving benefit from the adjudication must have the right to enforce it and the person required to make provision in terms of adjudication has to comply that and on its failure consequences as provided in law is to ensue. These are the fundamentals of any legal judicial system. In our opinion, the decisions of Dar-ul-Qaza or the Fatwa do not satisfy any of these requirements. Dar-ul-Qaza is neither created nor sanctioned by any law made by the competent legislature. Therefore, the opinion or the Fatwa issued by Dar-ul-Qaza or for that matter anybody is not adjudication of dispute by an authority 10 Page 11 under a judicial system sanctioned by law. A Qazi or Mufti has no authority or powers to impose his opinion and enforce his Fatwa on any one by any coercive method. In fact, whatever may be the status of Fatwa during Mogul or British Rule, it has no place in independent India under our Constitutional scheme. It has no legal sanction and cannot be enforced by any legal process either by the Dar-ul-Qaza issuing that or the person concerned or for that matter anybody.
Breaching Promise to Marry Will Not Amount to Offence of Cheating Under IPC: Karnataka HC
In a significant development, we saw how the Karnataka High Court in a learned, laudable, landmark and latest judgment titled Sri Venkatesh and others vs State of Karnataka and Smt Gulzar GP in 2022 LiveLaw (Kar) 24 and Criminal Petition No. 5865 of 2021 that was delivered finally on January 13, 2022 while quashing the FIR that was registered against a man and his family has reiterated that not abiding with the promise of marriage will not amount to the offence of cheating under Section 420 of the Indian Penal Code. It ought to be mentioned here that a single-Judge comprising of Justice K Natarajan while allowing the petition filed by Venkatesh and others said that, “Absolutely there is no ingredient stated by her in order to show that there is a criminal intention of cheating by petitioner No. 1 and thereby, he has promised to marry her but has broken his promise.” Very rightly so!
To start with, a single Judge Bench comprising of Justice K Natarajan of the Karnataka High Court sets the ball rolling by first and foremost putting forth in para 1 that, “This petition is filed by the petitioners/accused Nos. 1 to 4 under Section 482 of Cr.P.C. for quashing the FIR in Cr.No.157/2020 registered by the Ramamurthy Nagar Police Station for the offences punishable under Section 420, 506 read with Section 34 of IPC.”
On the one hand, while elaborating on the prosecution version, the Bench then specifies in para 3 that, “The case of the prosecution is that on the complaint of respondent No.2, the Police registered a case on 03.05.2020 wherein, it is alleged that the about 8 years back she came to know petitioner No.1 and both of them fell in love with each other and petitioner No.1 agreed to marry her. Subsequently, he left her and said to have married some other lady as his family members supported his marriage with some other lady. Therefore, she filed a complaint against petitioner No.1 and his other family members for having cheated her.”
On the other hand, the Bench then while dwelling on petitioners contention states in para 4 that, “Learned counsel for the petitioners contended that mere promise of marriage and not marrying her cannot be said to be a cheating as per the provision of Section 415 of IPC. Absolutely there is no ingredient for invoking the said section. After the filing of the case in May-2020, absolutely there no investigation by the Police in spite of the petitioners appearing before the Police after obtaining the bail and there is no progress. Respondent No.2 has filed the complaint only to harass the petitioners. Hence, prayed for quashing the FIR.”
To put things in perspective, the Bench then most crucially observes in para 6 that, “Having heard the arguments and perused the records, admittedly respondent No.2 filed complaint stating that accused No.1/petitioner No.1 fell in love with her and he has promised to marry her. Subsequently, he failed to marry her and he married somebody else and other petitioners said to have helped petitioner No.1 to marry some other lady. A plain reading of the complaint would reveal that it does not attract any ingredient of Section 415 of IPC in order to show that the accused persons have committed the offence under Section 420 of IPC and also she has just stated that the accused have also threatened her in order to attract Section 506 of IPC. Absolutely there is no ingredient stated by her in order to show that there is a criminal intention of cheating by petitioner No.1 and thereby, he has promised to marry her but has broken his promise.”
To be sure, the Bench then enunciates in para 7 that, “Learned counsel for the petitioners relied upon a Single Bench judgment of the High Court of Judicature at Madras, in the case of K.U. Prabhu Raj Vs. State by Sub Inspector of Police, A.W.P.S. Tambaram and another reported in 2012-3- L.W.770 wherein, the Court has held at paragraphs 16 and 17 as under:
“16. A cursory perusal of the above provision would make it clear that there are atleast three essential ingredients constituting an offence of cheating which should be made out from the materials available on record. They are as follows:-
‘(1) Deception of any person;
(2) Fraudulently or dishonestly inducing that person
(i) To deliver any property to any person or;
(ii) To consent that any person shall retain any property, or and
(3) Intentionally inducing that person to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property.’
17. The learned counsel for the second respondent would further submit that the offence involved in this case falls within the ambit of the third limb of Section 415 I.P.C as enumerated above. According to the learned counsel, but for the promise made by the petitioner, the daughter of the second respondent would have married someone-else and settled down in her life. Thus, according to him, the petitioner has committed a clear offence of cheating. In my considered opinion, it is not so. As has been held by the Division Bench of the Calcutta High Court in Abhoy Pradhan v. State of W.B case (cited supra), mere promise to marry and later on withdrawing the said promise will not amount to an offence of cheating at all. On such false promise to marry, the person to whom such promise was made should have done or omitted to do something that he would not done or omitted to do but for the deception. In this case, absolutely, there are no materials available on record to show that because of the promise made by the petitioner, the daughter of the second respondent has done anything or omitted to do something which has the tendency to cause damage or harm to the body or mind or reputation or property of the daughter of the second respondent. In the absence of the same, the entire allegations found in the records, in my considered opinion, would not make out an offence under Section 417 or 420 I.P.C., at all.”
Finally and far most significantly, the Bench then concludes by holding succinctly in para 8 that, “The Hon’ble Supreme Court also has categorically held in the case of S.W.PALANITKAR AND OTHERS VS. STATE OF BIHAR AND ANOTHER reported in (2002) 1 SCC 241 at paragraph No.11 that mere breach of contract cannot give rise to any criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction and the time when the offence is said to have been committed. Here in this case, petitioner No.1 is said to have promised to marry respondent No.2, but failed to marry her. In view of the judgment of the Hon’ble Supreme Court, respondent No.2 has failed to make out a case of criminal intention of petitioner No.1 from the beginning for cheating the complainant. That apart, the aforesaid judgment of High Court of judicature at Madras is applicable to the case where the promise of marriage will not attract Section 420 of IPC. This Court has held in Crl.R.P.No.233/2020 dated 24.02.2020 in the case of Sri.D.Ramesh Sinha Vs. State of Karnataka that as a promise of marriage and breach of contract will not attract the provisions of Sections 417 and 420 of IPC. Such being the case, continuing the proceedings or investigation against the petitioners is abuse of process of law and therefore, the same is liable to be quashed. Accordingly, I pass the following;
The petition is allowed. The investigation against this petitioner in Cr.No.157/2020 registered by the Ramamurthy Nagar Police Station is hereby quashed.”
In conclusion, we thus see that the petition is allowed and charges registered against the petitioner is quashed. We thus see that the Karnataka High Court makes it explicitly clear that breaching promise to marry will not amount to offence of cheating under IPC. No denying it!
PRISONERS SHOULD HAVE THE RIGHT TO VOTE: TIME TO AMEND THE RPA ACT
India is considered as the world’s “largest democracy” country. Election is celebrated as a festival in India, which can be evident from the recent incidents where the election rallies were conducted even during the COVID times. On every 25th January, we celebrate this day as ‘National Voters Day’. However, for a long time, we have denied the most fundamental right of suffrage to almost 4 lakh eligible voters. According to the ‘Prisoner Statistics India, 2018’, mentioned by the National Crime Record Bureau (NCRB), shows a total of 4,68,094 prisoners out of which 3,25,600 are those who were undertrials and 1,40,000 are convicts lodged across 1,339 prisons in India. The prisoners have been restricted from voting under Section 62 (5) of the Representation of the People Act, (RPA)1951, which reads as “No person shall vote at any election if he is confined in a prison, whether under a sentence of imprisonment or transportation or otherwise, or is in the lawful custody of the police: Provided that nothing in this sub-section shall apply to a person subjected to preventive detention under any law for the time being in force”. Ironically, during the Assembly elections 2016, one in three MLAs have a criminal record. Interestingly, no law prohibits it.
It has been more than 70 years since the right to vote has been denied to prisoners. In this article, we will see why the legislation should amend the RPA Act.
HISTORICAL BACKGROUND AND THE JUDICIAL APPROACH.
RPA act came into force in the year 1951 with the aim to provide the norms, rules, and regulations of the free and fair elections to the respective houses of parliament and to the houses of the legislature of each state. Further, it also talks about the disqualifications and qualifications for the membership of those houses. Moreover, it also mentions the corrupt offenses and practices in connection with the offenses which are committed by some of the politicians which may include bribery or distribution of liquor, etc. against the votes.
Supreme Court of India, in the case of Anukul Chandra Pradhan v. Union of India (AIR 1997 SC 2814), rejected the petition seeking the right to vote for prisoners. The court while giving the judgment observed why such a ban was in place because of the following reasons (i.) Resource crunch as permitting every person in prison also to vote would require the deployment of a much larger police force and greater security arrangements. (ii) A person who is in prison as a result of his own conduct cannot claim equal freedom. (iii) To keep persons with criminal backgrounds away from the election scene.
The major arguments which are against this right are: – (i) Civil death should be part of the punishment. (ii) Prisoners have broken the social contract and have voluntarily put themselves outside the social order (iii)It Preserves the purity of the ballot box (iv.) Government has an obligation to those who obey laws to punish those who break laws (v.) To disallow those who have broken laws to engage in the political process shows how much respect society has for laws (vi.) Powerful moral symbol from the society that the convict’s behavior is unacceptable (vii) It will act as a deterrent.
ARGUMENTS IN FAVOR
The major arguments which are in favor of this right are: – (i) Civil death is outdated. (ii) Social contract cannot be negotiated away (iii) Undermines the democratic polity by denying the vote to a section of the population. (iv) Elected should not be allowed to decide the electorate. (v) Allowing convicts to vote will encourage respect for the law. (vi) Symbolic statement to the convict that they are acceptable. (vii) Allowing prisoners to vote will be a lesson in civic education.
PRISONERS’ RIGHT TO VOTE: OTHER COUNTRY SCENARIO
Although, there is no official data that can indicate a clear pattern on the right to vote for prisoners around the globe. However, a report by BBC (2012) lists 18 European countries which have given the right to vote to the prisoners. In addition to this, Slovenia has also given the right to all its prisoners to vote (Liberty 2016). Interestingly, Irish Government in the year 2006, gave the right to vote even without any public outcry demanding it, without any media controversy, or judicial decision. By doing so, Ireland adhered to its human rights commitments learning through the best international civil rights practices of providing the right to vote to all citizens including prisoners. Moreover, countries such as Iran, Israel, and Pakistan have also provided the right to vote to their prisoners.
Moreover, In the African Continent countries such as South Africa, Ghana, Kenya, and Botswana have also provided their prisoners with the right to vote in elections. However, there are many other countries that impose some restrictions. For Instance, the United Kingdom (UK) and New Zealand. In Germany, those prisoners are exceptions from the voting right who have been convicted of terrorism charges. Further, in Australia, those prisoners who are exempted from their voting rights have been sentenced to a minimum of three years. Interestingly, countries like France don’t impose a default ban on the prisoners’ right to vote. Rather it depends upon the court on a case-to-case basis. Moreover, in countries like Italy and some states in the US, those who have been convicted can lose their right to vote even after their release.
WHY INDIA SHOULD GIVE THE RIGHT TO VOTE TO PRISONERS
The arguments against prisoners’ right to vote can be dismissed majorly on the two grounds. One is that whenever a person is subject to confinement, it is a result of imprisonment in itself and no additional punishment should be inflicted on that person. Another major argument is that the purpose of prison is not merely “Punishment” in the physical context, but the aim of the prison is to reform that person and prepare to rehabilitate and reintegrate into society.
The United Nations’ Standard Minimum Rules for Treatment of Prisoners (Nelson Mandela Rules), in 1955 had already defined the purpose of imprisonment in its articles 57 and 58, and what treatment must be given to the prisoners in its articles 60 and 61. Article 57 of the rule reads as “Imprisonment and other measures which result in cutting off an offender from the outside world are afflictive by the very fact of taking from the person the right of self-determination by depriving him of his liberty. Therefore, the prison system shall not, … aggravate the suffering inherent in such a situation”.
Further article Article 58 states that, “The purpose and justification of a sentence of imprisonment or a similar measure deprivative of liberty is ultimately to protect society against crime. This end can only be achieved if the period of imprisonment is used to ensure, so far as possible, that upon his return to society the offender is not only willing but able to lead a law-abiding and self-supporting life”.
Moreover, Article 60 states that, “The regime of the institution should seek to minimize any differences between prison life and life at liberty which tend to lessen the responsibility of the prisoners or the respect due to their dignity as human beings”.
By denying the right to vote to the prisoners, India violates the above-said Provisions.
VOTING RIGHTS OF THE PRISONERS: THE WAY AHEAD
India is the most democratic country in the world. However, it has denied the Prisoners’ right to vote for a long period of time. RPA act imposes restrictions on the same, which has been discussed above. No one can deny from this fact that elections give an opportunity to speak about our disappointments and problems with the state of affairs in the country, while also taking the opportunity to campaign for our demands. Whenever we deny the right to vote of the prisoners, we push the prisoner further away from society. A citizen without having the right to vote has no existence in a democracy. Prisoners are mostly dependent on others to become their voice and raise issues on their behalf. Hence, one direct impact which prisoners’ right to vote will bring is the attention from policymakers regarding the needs of prisoners. Apart from this point that the prisoners have a small population as compared to the size of other communities, even then a moral responsibility would stand for vote seekers and subsequent winners of power to be responsive towards demands of the prisoners. Another aspect we should keep in mind is that laws are made and changed with different governments, while rights have been enshrined as fundamental. Change is the nature of the world, what we consider a crime today, might be legal tomorrow. Hence, Hence, a right as fundamental as the right to vote, should not be dependent on the status of imprisonment or conviction. It is the time when the Parliament should come forward to amend the RPA Act, and the right to vote should be granted to Prisoners too.
The doctrine of anticipatory bail and judicial discretion under Section 438 of the Code of Criminal Procedure
The provision provided for in section 438 of the Code of Criminal Procedure- Direction for grant of bail to a person apprehending arrest which is also referred to as anticipatory bail in common parlance is a bail sought for, in anticipation of the arrest. The provision of anticipatory bail has been added in the Code of Criminal Procedure, 1973 because of the social stigma that is associated with the arrest of a person. That is to say, society attributes negative values to an arrested person and looks on with great ignominy. Moreover, though the police most of the time work in the furtherance and within the sweep of its duty but are sometimes influenced politically. This kind of bias can lead to needless physical and mental harassment to the person detained, metaphorically speaking, even though he has clean hands. The political rivalry which is intended to degrade the image and bring disgrace by implicating him in a false case takes a toll on the personal liberty of the person. This is where the role of Judiciary steps in, in adjudicating and applying the wide discretionary power the Indian Legislature has vested it with. The Code of Criminal Procedure (Amendment) Act, 2005 on the recommendations of the 203rd Report of the Law Commission of India conferred the jurisdiction on the High Court and the Court of Sessions for a direction granting bail to a person apprehending arrest under Section 438(1) of Cr.P.C. While making such direction under subsection (1), the High Court or the Court of Sessions may direct in the light of the facts and circumstances of the case, “as it may think fit”, after taking into consideration the factors laid down in subsection (1). The judicial discretionary power under Section 438, Cr.P.C., is of a wide ambit, the same can be ascertained by the legislative intent which is manifested in the verbatim of the section, specifically the use of “as it may think fit” in subsection (2). Therefore, the legislature has conferred this wide discretionary power in the higher echelons of the judiciary to avoid the possibility of flawed decision making, however, to rule out the risk in totality the decision of the High Court and the Court of Sessions can be subjected to revision and appeal. After having reflected on the abovementioned provision, the problem before the researcher is- considering the judicial trend of a few cases, one of them being a recent case of the year 2019- P Chidambaram v. Directorate of Enforcement; the purview of the judicial discretionary power under Section 438, Cr.P.C., has been generalised, to not be applied to cases of ‘economic offences’. On the other hand, checks and balances in the form of broad guidelines have already been laid down in the landmark case of Gurbaksh Singh Sibbia v. the State of Punjab so the discretion is not left unregulated. Further, the aforementioned case states that “the generalisation of any sort destroys the very purpose of grant of judicial discretion by the legislature”. So, the article focuses on the question that- What has been the approach of the Indian Judiciary vis-a-vis the judicial discretionary power vested with it in Section 438, Cr.P.C.- broad guidelines or generalised and narrow rules? Further the article would also be taking into consideration how the doctrine of anticipatory bail came into existence?
The emergence of the doctrine of Anticipatory Bail provided for in Section 438, Cr.P.C.
The Code of Criminal Procedure, 1898 did not accommodate a provision corresponding to present section 438 with respect to the grant of anticipatory bail. Anticipatory bail was, however, granted in certain cases under the High Courts’ inherent powers though the preponderant view negated the existence of any such jurisdiction. In the Amendment Act, 1955 the words “suspected of the commission of an offence” was added to the Code of Criminal Procedure, 1898 concerning the provision of bail, i.e. Section 497- “When any person accused of or suspected of the commission of any non-bailable offence is arrested or detained without warrant by an officer in charge of a police station, or appears or is brought before a Court, he may be released on bail, but he shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life.” These words were interpreted to mean that the Legislature has conferred wider powers on the court. The amended section lays down that if a person appears before the Court, he can be released on bail by the Court. The Madhya Pradesh High Court, therefore, went ahead with the concept of anticipatory bail in the case of Abdul Karim Khan v. State of Madhya Pradesh and ordered that the applicant shall not be arrested by the police and remain on bail till the decision of the case. However, State of Madhya Pradesh v. Narayan Prasad Jaiswal overruled the above-mentioned case on the ground that, bail could not be granted to a person who had not yet been arrested for an actual charge of any offence or even on suspicion of his complicity in any offence and who was not required to surrender to any custody under any order of arrest but who apprehended that they would be arrested as persons accused of or suspected of the commission of an offence. So, even before the recommendations made by the 41st Report of the Law Commission of India in 1969 with respect to the inclusion of a provision corresponding bail in anticipation of arrest, there had already been a conflict of opinions within the Indian Judiciary in this regard. The Law Commission in its 41st Report recommended that provision relating to anticipatory bail should be introduced as Section 497-A in the Code of Criminal Procedure, 1898. The Commission viewed this as a necessity because of the increase in the number of cases pertaining to political rivalry wherein sometimes influential persons try to implicate their rivals in false cases for the purpose of disgracing them by getting them detained in jail for some days. The Central Government after considering the recommendations introduced clause 447 in the draft Bill of the new Code of Criminal Procedure, 1970 to confer express powers concerning anticipatory bail on the High Court and the Sessions Court. The Law Commission of India in its 48th Report reconsidered the recommendations made in the 41st Law Report and proposed measures to prevent the provision provided for in Section 438 from abuse by dishonest petitioners. The final order should mandatorily be made after notice to the Public Prosecutor. The initial order being an interim order. Moreover, when the court is satisfied with the directions; being necessary and for the interest of justice only then it is allowed to issue such directions. Furthermore, the court should record reasons for issuing directions under the said section.
Thus, clause 447 of the draft bill appeared in the form of Section 438 of the Code of Criminal Procedure, 1973 which provided for the “Directions for grant of bail to person apprehending arrest”.
Judicial Discretion vis-a-vis Section 438 Cr.P.C.
‘Judicial discretion’ has been remarked by Lord Mansfield as “Discretion when applied to a court of justice, means sound discretion guided by law. It must be governed by rule, not by humour; it must not be arbitrary, vague and fanciful, but legal and regular. The words “may if it thinks fit” used in Section 438(1) and the absence of any specific restraints on the exercise of the power to grant “anticipatory bail” clearly indicates that the legislature intended to confer and has in fact conferred a very wide discretion on the High Court and the Court of Sessions to grant “anticipatory bail”. The Law Commission of India in the 41st Report ingeminated the principles concerning bail. One of the relevant principles in this regard is that “bail is a matter of discretion if the offence is non-bailable’’. Therefore, such discretion can only be exercised for non-bailable offences. Sandhawalia, J., of Punjab & Haryana High Court in Gurbaksh Singh v. State stated that the discretion in Section 438, Criminal Procedure Code, should not be exercised with regard to an offence punishable with death or imprisonment for life unless the Court at that very stage is satisfied that such a charge is false or groundless. Under Section 438, Cr.P.C., discretionary power has been conferred on the Court to grant pre-arrest bail. The judicial discretion vested in the Court requires it to be appropriately exercised with the proper application of mind in determining whether a case is a fit case for grant of anticipatory bail or not. The court while dealing with an application for bail is required to exercise its discretion in a judicious manner and not as a matter of course. Discretion must be exercised on the basis of available material and facts of a particular case. It is really necessary that the judicial discretion exercised with respect to Section 438, Cr.P.C. has to be a cautious one. The court under Section 438, Cr.P.C. in the exercise of the judicial discretion cannot act on the basis of whims and fancies just because the discretion conferred is wide and norms have not been prescribed for that matter. The discretion exercised shall appear a just and a reasonable one. Also, anticipatory bail is not just about directions being granted on the basis of judicial discretion, the accused has to make out a case wherein he has been accused of the commission of a non-bailable offence and there must be a reasonable apprehension in his mind that he would be arrested based on such accusation. Furthermore, The Supreme Court in Siddharam Satlingappa Mhetre v. State of Maharashtra observed that the law of bail dovetails two conflicting interests namely, the obligation to shield the society from the hazards of those committing and repeating crimes and on the other hand absolute adherence to the fundamental principle of criminal jurisprudence – the presumption of innocence and the sanctity of individual liberty. Therefore, the judicial discretion in the said section, i.e. 438, Cr.P.C. must be exercised with due consideration to not only the interest of the society but also the interest of the accused.
An analysis of the approach adopted by the Indian Judiciary- broad guidelines v. narrow rules in regard to Section 438, Cr.P.C.
The Law Commission of India in the 41st Report contemplated the question of providing for conditions under which anticipatory bail could be granted. But, it was concluded that it is not practicable to enumerate the conditions exhaustively. Laying down of conditions would amount to prejudging the case. Therefore, the discretion was conferred with the higher echelons of the judiciary with a view that the superior courts would exercise this discretion properly. It is noteworthy to be informed about certain case laws wherein various courts have decided on the point that economic offences cannot come under Section 438, Cr.P.C. as they are supposed to be categorised in a different class and, therefore, direction for anticipatory bail cannot be granted. The Supreme Court of India in State (CBI) v. Anil Sharma the court noted that the provision under Section 438, Cr.P.C. has to be used sparingly, specifically in the case of economic offences, that constitute a class apart. Furthermore, in Directorate of Enforcement v. Ashok Kumar Jain the Supreme Court of India noted with regards to anticipatory bail that, in offences relating to economy and matters involving finance, the accused is not entitled to anticipatory bail. The Supreme Court of India in another case, Y.S. Jagan Mohan Reddy v. Central Bureau of Investigation again reiterated that economic offences constitute a class apart and need to be visited with a different approach in the matter of bail. In the recent case of P Chidambaram v. Directorate of Enforcement, the same principle has been upheld. On the contrary, in Gurucharan Singh v. State, the court observed that there cannot be an inexorable formula in the matter of granting bail. Furthermore, in the case of Gurbaksh Singh Sibbia v. State of Punjab which is treated as an authority in law several propositions have been laid down with respect to judicial discretion in Section 438, Cr.P.C. It, thus, runs as- generalisations on matters which rest on discretion and the attempt to discover formulae of universal application when facts are bound to differ from case to case frustrate the very purpose of conferring discretion; no two cases are alike on the facts and therefore, courts have to be allowed a little free play if the conferment of discretionary power is to be made meaningful. Further, the same case observed a somewhat contrary approach and held that it is not proper to hold that in serious offences involving blatant corruption at the highest rungs of the executive and political power the discretion under Section 438, Cr.P.C. should not be exercised. It is not possible to assess the blatantness of corruption at the stage of anticipatory bail. The court further negated the stand of devising a formula that will confine the power to grant anticipatory bail within a straitjacket. A contemporary case of the year 2020, Sushila Aggarwal v. State held that the principle that anticipatory bail should not be granted normally- including the cases of economic offences, etc are not good in law and, thus, overruled the principle that “economic offences to be exonerated from the grant of anticipatory bail”. Having said that, the case of Gurbaksh Singh Sibbia v. State of Punjab a five-judge constitution bench laid down an 8 point-code that acts as a guide in exercising discretion under Section 438, Cr.P.C. until overruled by a larger constitution bench. This eight-point code as has been mentioned previously negates the idea of encompassing or restricting the judicial discretion within a straitjacket. Classifying “economic offences as a class apart” clearly narrows down the ambit of judicial discretion in the said section and, the same is against the legislative intent and the authority laid down in Sibbia. This falls under the formulation of rigid rules without analysing the uniqueness of the facts and circumstances on a case-to-case basis. Furthermore, the generalisation of the matters vested in the discretion of the judiciary manifestly frustrates the idea of conferring wide discretionary power under Section 438, Cr.P.C. Therefore, only and only broad guidelines that do not let the judicial discretionary power go unguided is intended by Section 438, Cr.P.C.
The emergence of the doctrine of anticipatory bail has been an issue of disagreement between the courts even before the recommendation in that regard was made by the 41st Report of the Law Commission of India. A provision like that of Anticipatory Bail goes a long way in preserving the interest and liberty of the accused on the basis of the principle of Presumption of Innocence that has been ingrained in the Criminal Jurisprudence. Simultaneously, the interest of the society cannot be ignored and, therefore, the exercise of judicial discretion has to be a cautious one. Secondly, the researcher submits that the generalisation and narrowing down of judicial discretion into rigid rules has never been the intention of the legislature and, therefore, frustrates the whole idea of conferring wide discretionary powers on the High Court and the Court of Sessions under Subsection (2) of Section 438, Cr.P.C. So, only and only broad guidelines that do not let the discretionary power go unguided should be relied on, for that matter.
The Code of Criminal Procedure, 1898 did not accommodate a provision corresponding to present Section 438 with respect to the grant of anticipatory bail. Anticipatory bail was, however, granted in certain cases under the High Courts’ inherent powers though the preponderant view negated the existence of any such jurisdiction.
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