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Meaning of rarest of rare case.

 

A 1983 ruling by the country’s Supreme Court stated that the death penalty should be imposed only in “the rarest of rare cases”.

Capital punishment is a legal but rarely carried out sentence in India. Imposition of the penalty is not always followed by execution (even when it is upheld on appeal), because of the possibility of commutation to life imprisonment.Since 1995 it has been used only three times, on Auto Shankar in 1995, Dhananjoy Chatterjee in 2004, and Ajmal Kasab in 2012.

The Supreme Court of India ruled in 1983 that the death penalty should be imposed only in “the rarest of rare cases.”[2] Capital crimes are murder, gang robbery with murder, abetting the suicide of a child or insane person, waging war against the nation, and abetting mutiny by a member of the armed forces.[2] Since 1989, the death penalty has also been legal for a second offence of “large scale narcotics trafficking”. In recent years the death penalty has been imposed under new anti-terrorism legislation for people convicted of terrorist activities.

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Sources: http://en.wikipedia.org/wiki/Capital_punishment_in_India

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.454 OF 2006

Swamy Shraddananda @ Murali Manohar Mishra … Appellant Vs.

State of Karnataka … Respondent JUDGMENT

AFTAB ALAM,J.

1. Death to a cold blooded murderer or life, albeit subject to severe restrictions of personal liberty, is the vexed question that once again arises before this court. A verdict of death would cut the matter cleanly, apart from cutting short the life of the condemned person. But a verdict of imprisonment for life is likely to give rise to certain questions. (Life after all is full of questions!). How would the sentence of imprisonment
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for life work out in actuality? The Court may feel that the punishment more just and proper, in the facts of the case, would be imprisonment for life with life given its normal meaning and as defined in section 45 of the Indian Penal Code. The Court may be of the view that the punishment of death awarded by the trial court and confirmed by the High Court needs to be substituted by life imprisonment, literally for life or in any case for a period far in excess of fourteen years. The Court in its judgment may make its intent explicit and state clearly that the sentence handed over to the convict is imprisonment till his last breath or, life permitting, imprisonment for a term not less than twenty, twenty five or even thirty years. But once the judgment is signed and pronounced, the execution of the sentence passes into the hands of the executive and is governed by different provisions of law. What is the surety that the sentence awarded to the convict after painstaking and anxious deliberation would be carried out in actuality? The sentence of imprisonment for life, literally, shall not by application of different kinds of remission, turn out to be the ordinary run of the mill life term that works out to no more than fourteen years. How can the sentence of imprisonment for life (till its full natural span) given to a convict as a substitute for the death sentence be viewed differently and segregated from the ordinary life imprisonment given as the sentence of first choice? These are the questions that arise for consideration in this case.

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2. The conviction of the appellant, Swamy Shardanannda @ Murali Manohar Mishra under Sections 302 and 201 of the Indian Penal Code has attained finality and is no longer open to scrutiny. The appellant was convicted by the learned XXV City Sessions Judge, Bangalore City, under the aforesaid two sections by judgement and order dated 20 May, 2005 in SC No.212/1994. The Sessions Judge sentenced him to death for the offence of murder and to a term of five years rigorous imprisonment and fine of rupees ten thousand for causing disappearance of evidences of the offence; in default of payment of fine the direction was to undergo simple imprisonment for one year. The appellant’s appeal (Criminal Appeal No.1086 of 2005) against the judgment and order passed by the trial court and the reference made by the Sessions Judge under section 366 of the Code of Criminal Procedure (Criminal Referred Case No.6 of 2005) were heard together by the Karnataka High Court. The High Court confirmed the conviction and the death sentence awarded to the appellant and by judgment and order dated 19 September, 2005 dismissed the appellant’s appeal and accepted the reference made by the trial court without any modification in the conviction or sentence. Against the High Court judgment the appellant has come to this Court in this appeal. The Appeal was earlier heard by a bench of two judges. Both the honourable judges unanimously upheld the appellant’s conviction for the two offences but they were unable to agree to the punishment meted out to
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the appellant. S. B. Sinha J. felt that in the facts and circumstances of the case the punishment of life imprisonment, rather than death would serve the ends of justice. He, however, made it clear that the appellant would not be released from prison till the end of his life. M. Katju J., on the other hand, took the view that the appellant deserved nothing but death. It is thus on the limited, though very important and intractable question of sentence that this appeal has come before us.

3. This takes us to the facts of the case that has all the elements of high drama. It has a man’s vile greed coupled with the devil’s cunning; a woman’s craving for a son, coupled with extreme credulity and gullibility and a daughter’s deep and abiding love for her mother coupled with remarkable perseverance to see through the lies behind her mother’s mysterious disappearance. But a man’s life can not be decided in three sentences and we must see the prosecution case, as established up to this court in some greater detail.

4. Shakereh, the deceased victim of the crime, came from a highly reputed and wealthy background. She was the grand daughter of Sir Mirza Ismail, a former Dewan of the Princely State of Mysore and the daughter of Mr. Ghulam Hussain Namaze and Mrs. Gauhar Taj Namaze. She held vast and very valuable landed properties in her own right. Among her various properties was a bungalow at No.81, Richmond Road, Bangalore, constructed over nearly 38000 square foot of land that
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she had got in Hiba (oral gift) from her parent’s side. Another was a large piece of land measuring 40,000 square foot on Wellington Street that she had got in dowry at the time of marriage. Shakereh was married to Mr. Akbar Khaleeli, a member of the Indian Foreign Service. They had four daughters from the marriage. Shakereh came to know the appellant, Murali Manohar Mishra who called himself Swamy Shraddananda, for the first time in 1983 when she and her family were visiting the erstwhile Nawab of Rampur in New Delhi. The appellant was introduced as someone who was looking after the Rampur properties and was said to be quite adept in managing urban landed estates. Shakereh, at that time was facing some difficulties under the urban land ceiling law and she asked the appellant to come over to Bangalore and help her in sorting out the problems concerning her properties. Soon thereafter Akbar Khaleeli was posted as a diplomat to Iran. In those days Iran was not a family-station for Indian diplomats and hence, he went alone leaving Shakereh behind in Bangalore. The appellant then came to Bangalore and started living in a part of her house, 81 Richmond Road, purportedly to assist in the proper management of her properties. Apparently, more than helping in property matters he worked on her suppressed though strong desire for a son and was able to convince her that with his occult powers he could make her beget a son. In 1985, Shakereh and Akbar Khaleeli got divorced. Shakereh then proceeded to marry the appellant. She paid no
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heed to the opposition from family and friends and finally got married to the appellant on 17 April, 1986 under the Special Marriage Act and the marriage was registered at the Sub-Registrar’s Office, Mayo Hall, Bangalore. After marriage they lived together at 81 Richmond Road. For domestic chores they engaged a couple, a man called Raju to work as gardener-cum handyman and his wife Josephine to work as maid servant. They lived in the servant’s quarter of the bungalow.

5. The daughters from the first marriage were most of the time staying abroad.

6. After marriage Shakereh not only showered her love and affection on the appellant but also her material wealth. She executed a testamentary will in his favour besides a general Power of Attorney appointing him as her agent and attorney. She opened a number of bank accounts jointly with the appellant and also took several bank lockers in their joint names. They also started together a private company called S. S. Housing Private Limited of which they alone were the partners.

7. Notwithstanding her matrimonial adventures Shakereh’s relations with her daughters and her parents continued to be more or less as before. They met from time to time and kept in touch by speaking on the telephone at regular intervals.

8. Then by the end of May 1991, Shakereh suddenly and mysteriously disappeared. She was last met by her mother Mrs. Gauhar
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Namaze (examined before the trial court as PW-25) on 13 April, 1991. Her daughter, Sabah Khaleeli (examined as PW-5) last spoke to her on telephone on 19 April, 1991 and according to the two servants, Raju and Josephine (PWs-18 & 19 respectively), they last saw her in the company of the appellant in the morning of 28 May, 1991. Thereafter, Shakereh was not seen or spoken to by anyone. At that time she was about forty years old.

9. When Sabah did not receive any call from her mother nor was she able to get through to her on telephone she enquired about her from the appellant who said that she had gone to Hyderabad. In June 1991, when she contacted again he told her that her mother had gone to Kutch to attend the wedding of a wealthy diamond merchant. A week later he told her that Shakereh was keeping a low profile due to some income tax problems. Exasperated by the evasive and vague replies by the appellant, Sabah came down to Bangalore but found no trace of her mother in her house. The appellant then said that Shakereh was pregnant and she had gone to the United States of America to deliver the child. He also said that she had got herself admitted in Roosevelt Hospital. Sabah made enquiries and came to learn that Roosevelt Hospital records did not show admission of anyone by the name of Shakereh or matching her description. She confronted the appellant and accused him of giving false information about her mother. He tried to explain that Shakereh
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had, in fact, gone to London but she wanted to keep her whereabouts confidential. However all stories fabricated by the appellant about her mother lay totally exposed to Sabah when she called on him in a hotel room in Bombay and chanced upon the passport of her mother lying around. A glance at the passport made it clear that its holder had not gone to the United States or the United Kingdom or as a matter of fact anywhere out of the country. At this stage, she came to Bangalore and lodged a written complaint at Ashok Nagar Police Station where it was registered on 10 June 1992 simply as a woman missing complaint bearing Cr.No.417/1992.

10. The search for the `missing’ woman started in a rather lukewarm way but the appellant thought that the time had come to start covering his flanks. He went to the court seeking anticipatory bail. In the bail petition he declared his total innocence and stated that perennial litigation with close relations drove Shakereh to acute depression and in that state, while he was away from Bangalore, she left the house in a fit of anger without leaving any signs as to where she was headed. He was able to obtain anticipatory bail, initially on certain condition that was later on greatly relaxed.

11. The investigation by Ashok Nagar police station did not yield any results but the persistence of Sabah paid off. In March 1994, the Central Crime Branch (C.C.B.), Bangalore took over the investigation of the
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complaint about the `missing’ Shakereh. The case came under the charge of C. Veeraiah, CPI, CCB (PW 37) who, suspecting the role of the appellant in the disappearance of Shakereh, subjected him to close interrogation. Under intense interrogation the appellant broke down and owned up to having killed Shakereh. He narrated in detail the manner of her killing and disposing of her body. He stated that he put the body of Shakereh inside a large wooden box (that he had earlier got made for the purpose) and got the box dropped into a pit (that he had got specially dug up) in the grounds of 81 Richmond Road just outside their common bed- room. He then got the pit filled up by earth and the ground-surface cemented and covered up with stone slabs. He volunteered to take the Investigating Officer (IO) to the place and identify the exact spot where Shakereh lay buried inside the wooden box. The appellant made the following statement before the IO on 28 March 1994. “If I am taken I will show the place where

the wooden box was prepared and the person who

prepared it, the persons who transported the box and the people who helped in digging out the pit and the crow bar, spade, pan used for digging pit, the cement bags and the spot where Shakereh is buried and I exhume the dead body of the deceased and show you. The statement what all I had earlier given to Ashok Nagar police was a false statement given intentionally just to escape myself.”

The IO then obtained an exhumation order from the Magistrate and after completing the other legal formalities, on March 30, 1994 brought the
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appellant to 81 Richmond Road along with the exhumation team. They were taken by the appellant to the rear of the house passing through the dinning hall and the kitchen. The place was open to the sky but was enclosed on all the four sides by high walls; the floor was made of kadapa slabs cemented at the joints. The place had no other access apart from the entry through the kitchen. There the appellant identified the exact spot where the wooden box, with the body of Shakereh inside it, lay buried and marked it with a piece of chalk. The exhumation process started at 10.30 a.m. and the whole process was video graphed (as per MO18).

12. As pointed out by the appellant, first the stone slabs were removed and the cemented portion below the slabs was broken up. Then the ground below was dug up and sure enough a large wooden box was found lying deep under. The box had inside it, on top, a foam mattress, a pillow and a bed-sheet. Under the mattress was a skeleton with a sleeping gown around it. The bones had all become disjointed. The skeleton and the long hair tufts lying around the skull were taken out and the forensic experts rearranged the bones and also fixed the skull and the mandibles. There was no doubt that it was a human skeleton. Mrs. Gauhar Taj Namaze identified a red stone ring and two black rings found in the wooden box (that must have slipped down the fingers after the flesh decayed away) as belonging to her daughter Shakereh. The sleeping
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gown that was around the skeleton was identified by the maid as belonging to her mistress Shakereh.

13. The post mortem examination was held on the same day from 4.45 to about 6 p.m.

14. The skull along with an undisputed photograph of Shakereh was sent to the Forensic Science Laboratory for matching and identification by Photo Superimposition method. The skeletal remains were subjected to D.N.A. fingerprinting. Both the tests gave the same result and left no room for doubt that the skeleton was of Shakereh.

15. On 31 March, 1994 the IO once again took the appellant to 81 Richmond Road. This time the appellant took the IO to the bedroom and showed the window that opened on the enclosed space from where the skeleton of the deceased was recovered on the previous day. He also explained that he had got the lower part of the room’s wall broken down to make a clearing through which the wooden box containing Shakereh’s body was pushed out of the room and into the pit. He also produced before the IO pills of eight different kinds and the cheque books of different bank accounts.

16. The other aspect of the case is equally significant in that it provides the motive for the murder. It came to light during investigation that after Shakereh disappeared (or, in retrospect, was killed by the appellant) he went about selling off her properties as fast as possible. On
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30 and 31 March, 1992, in two days, the appellant sold 34 plots carved out of Shakereh’s properties to various people under registered sale- deeds using the General Power of Attorney executed by her in his favour. The joint bank accounts were simply used to deposit large sums being the sale proceeds of the lands sold by him and to withdraw the amounts as soon as those were credited to the account. Needless to say that from May 1991, it was the appellant alone who operated the joint bank accounts. He also literally cleaned out the bank lockers that Shakereh had taken in their joint names.

17. In all the meetings of the S. S. Housing Company, he represented the presence of Shakereh and signed the proceedings for himself and for her as holder of her General Power of Attorney. The proceedings of the meetings were regularly sent to their Chartered Accountant.

18. The appellant also gave regular replies to the queries of the Income Tax authorities, one of which, of the year 1993 contains his signature and the signature of Shakereh which is apparently forged.

19. In light of the large amount of evidences unearthed against the appellant he was charged with the commission of murder of his wife Shakereh. As is evident, the case against the appellant was completely based on circumstantial evidence. But the prosecution proved its case to the hilt by examining 39 witnesses and producing before the court a large
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number of exhibits, both material (MOs. 1 to 33) and documentary (P1 to P267).

20. These are, in brief, the facts of the case. On these facts, Mr. Sanjay Hegde, learned counsel for the State of Karnataka, supported the view taken by Katju J. (as indeed by the High Court and the trial court) and submitted that the appellant deserved nothing less than death. In order to bring out the full horror of the crime Mr. Hegde reconstructed it before the court. He said that after five years of marriage Shakereh’s infatuation for the appellant had worn thin. She could see through his fraud and see him for what he was, a lowly charlatan. The appellant could sense that his game was up but he was not willing to let go all the wealth and the lavish life style that he had gotten used to. He decided to kill Shakereh and take over all her wealth directly. In furtherance of his aim he conceived a terrible plan and executed it to perfection. He got a large pit dug up at a `safe’ place just outside their bed room. The person who was to lie into it was told that it was intended for the construction of a soak- pit for the toilet. He got the bottom of one of the walls of the bedroom knocked off making a clearing to push the wooden box through; God only knows saying what to the person who was to pass through it. He got a large wooden box (7x2x2 feet) made and brought to 81 Richmond Road where it was kept in the guest house; mercifully out of sight of the person for whom it was meant. Having thus completed all
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his preparations he administered a very heavy dose of sleeping drugs to her on 28 May, 1991 when the servant couple, on receiving information in the morning regarding a death in their family in a village in Andhra Pradesh asked permission for leave and some money in advance. However, before giving them the money asked for and letting them go, the appellant got the large wooden box brought from the guest house to the bedroom by Raju (with the help of three or four other persons called for the purpose) where, according to Raju, he saw Shakereh (for the last time) lying on the bed, deep in sleep. After the servants had gone away and the field was clear the appellant transferred Shakereh along with the mattress, the pillow and the bed sheet from the bed to the box, in all probability while she was still alive. He then shut the lid of the box and pushed it through the opening made in the wall into the pit, dug just outside the room, got the pit filled up with earth and the surface cemented and covered with stone slabs.

21. What the appellant did after committing murder of Shakereh was, according to Mr. Hegde even more shocking. He continued to live, like a ghoul, in the same house and in the same room and started a massive game of deception. To Sabah, who desperately wanted to meet her mother or at least to talk to her, he constantly fed lies and represented to the world at large that Shakereh was alive and well but was simply avoiding any social contacts. Behind the fagade of deception he went on
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selling Shakereh’s properties as quickly as possible to convert those into cash for easy appropriation. In conclusion Mr. Hegde submitted that it was truly a murder most foul and Katju J. was perfectly right in holding that this case came under the first, second and the fifth of the five categories, held by this Court as calling for the death sentence, in Machhi Singh & Ors. vs. State of Punjab, (1983) 3 SCC 470.

22. In order to properly appreciate the decision in Machhi Singh it would be necessary to first go to its precursor, the Constitution Bench decision in Bachan Singh vs. State of Punjab, AIR 1980 SC 898 and to an earlier Constitution Bench decision in Jagmohan Singh vs. State of U.P., AIR 1973 SC 947, that is the precursor of Bachan Singh. The decisions in Jagmohan Singh and Bachan Singh deal with the recurrent debate on abolition of death penalty and are primarily concerned with the question of legitimacy of the death sentence. Jagmohan relates to the period when the requirement for the court to state reasons for not giving death sentence but giving the alternate sentence of life imprisonment in a capital offence was done away with by deletion of Section 367(5) in the Code of Criminal Procedure, 1898 and the requirement to state reasons for giving death sentence and not the alternate of life imprisonment under Section 354(3) of the Code of Criminal Procedure, 1973 was yet to be introduced. Bachan Singh relates to the period after the Code of Criminal Procedure, 1973 came into force that gives to the accused the
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right of pre-sentence hearing under Section 235(2) and under Section 354(3) casts an obligation on the court to state the `special reasons’ for awarding the sentence of death and not its alternate, the imprisonment for life or imprisonment for a term of years. On both occasions the court upheld the Constitutional validity of death sentence for murder and the other capital offences in the Penal Code.

23. We are not concerned here with the issue of the Constitutionality of death sentence that stands conclusively settled by two Constitution Bench decisions. What is of importance for our present purpose is that both the Constitution Benches firmly declined to be drawn into making any standardisation or categorisation of cases for awarding death penalty? It was strongly urged before the Court that in order to save the sentence of death from the vice of arbitrariness it was imperative for the Court to lay down guide lines, to mark and identify the types of murder that would attract the punishment of death, leaving aside the other kinds of murder for the lesser option of the sentence of imprisonment for life. In Jagmohan the Court turned down the submission observing (in paragraph 25 of the judgment) as follows:

“In India this onerous duty is cast upon Judges and for more than a century the Judges are carrying out this duty under the Indian Penal Code. The impossibility of laying down standards is at the very core of the criminal law as administered in India which invests the Judges with a very wide discretion in the matter of fixing the degree of punishment. That discretion in the matter of sentence is as already pointed out, liable
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to be corrected by superior courts. Laying down of standards to the limited extent possible as was done in the Model Judicial Code would not serve the

purpose. The exercise of judicial discretion on well recognized principles is in the final analysis the safest possible safeguards for the accused.”

(Emphasis added)

Barely seven years later, the same argument was advanced with even greater force before another Constitution Bench in Bachan Singh vs. State of Punjab (supra). It was contended that under Section 354(3) the requirement of giving `special reasons’ for awarding death sentence was very loose and it left the doors open for imposition of death penalty in an arbitrary and whimsical manner. It was further contended that for the sake of saving the Constitutional validity of the provision the Court must step in to clearly define its scope by unmistakably marking the types of grave murders and other capital offences that would attract death penalty rather than the alternate punishment of imprisonment for life.

24. As on the earlier occasion, in Bachan Singh too the Court rejected the submission. The Court did not accept the contention that asking the Court to state special reasons for awarding death sentence amounted to leaving the Court to do something that was essentially a legislative function. The Court held that the exercise of judicial discretion on well established principles and on the facts of each case was not the same as to legislate. On the contrary, the Court observed, any attempt to
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standardise or to identify the types of cases for the purpose of death sentence would amount to taking up the legislative function. The Court said that a `standardization or sentencing discretion is a policy matter which belongs to the sphere of legislation’ and `the Court would not by overleaping its bounds rush to do what Parliament, in its wisdom, warily did not do.’

25. The Court also rejected the other submission that unless it precisely defined the scope of Section 354(3) and clearly marked the types of grave murders and capital offences there would always be the chance of imposition of death penalty in an arbitrary and whimsical manner. In paragraph 168 of the judgment the Court observed as follows: “Now, remains the question whether this Court can lay down standards or norms restricting the area of the imposition of death penalty to a narrow category of murders.”

It discussed the issue at length from paragraphs 169 to 195 and firmly refused to do any categorisation or standardisation of cases for the purpose of death sentence. In the lengthy discussion on the issue, the Court gave over half a dozen different reasons against the argument urging for standardisation and categorisation of cases; it also cited the American experience to show the futility of any such undertaking. A perusal of that part of the judgment shows that a very strong plea was made before the Court for standardisation and categorisation of cases for
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the purpose of death sentence. Nonetheless the Court remained resolute in its refusal to undertake the exercise. In this regard the court agreed with the view earlier taken in Jagmohan and observed that it was not possible to make an exhaustive enumeration of aggravating or mitigating circumstances which should be taken into consideration when sentencing an offender. It extracted the passage from Jagmohan that quoted with approval the observation from an American decision in McGautha vs. California, (1971) 402 US 183

“The infinite variety of cases and facets to each case would make general standards either meaningless `boiler plate’ or a statement of the obvious that no Jury/Judge would need.”

It also reiterated the observation in Jagmohan that such “standardisation” is well-nigh impossible.

26. Arguing against standardisation of cases for the purpose of death sentence the Court observed that even within a single category offence there are infinite, unpredictable and unforeseeable variations. No two cases are exactly identical. There are countless permutations and combinations which are beyond the anticipatory capacity of the human calculus. The Court further observed that standardisation of the sentencing process tends to sacrifice justice at the altar of blind uniformity.

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27. It is significant to note that the Court was extremely wary of dealing with even the question of indicating the broad criteria which should guide the Courts in sentencing a convict of murder. It reminded itself of the observation of Stewart, J. in Greg vs. Georgia, `while we have an obligation to ensure that the constitutional bounds are not overreached, we may not act as judges as we might as legislatures’. Having thus cautioned itself, though the Court recorded the suggestions of Dr.Chitale, one of the counsels appearing in the case, as regards the `aggravating circumstances’ and the `mitigating circumstances’, it was careful not to commit itself to Dr. Chitale’s categories. In paragraph 200 the judgment recorded the `aggravating circumstances’ suggested by Dr.Chitale, but in paragraph 201 it observed as follows: “Stated broadly, there can be no objection to the acceptance of these indicators but as we have

indicated already, we would prefer not to fetter judicial discretion by attempting to make an

exhaustive enumeration one way or the other.”

Similarly, in paragraph 204 the judgment recorded the `mitigating circumstances’ as suggested by Dr.Chitale. In paragraph 205, however, it observed as follows:

“We will do no more than to say that these are

undoubtedly relevant circumstances and must be

given great weight in the determination of sentence. Some of these factors like extreme youth can instead be of compelling importance.”

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In the end, the Court following the decision in Jagmohan left the sentencing process exactly as it came from the legislative, flexible and responsive to each case on its merits, subject to the discretion of the Court and in case of any error in exercise of the discretion subject further to correction by the Superior Court(s). The Court observed: “In Jagmohan, this Court had held that this

sentencing discretion is to be exercised judicially on well-recognised principles, after balancing all the aggravating and mitigating circumstances of the crime. By “well-recognised principles” the Court obviously meant the principles crystallized by judicial decisions illustrating as to what were regarded as aggravating or mitigating circumstances in those cases. The legislative changes since Jagmohan – as we have discussed already – do not have the effect of abrogating or nullifying those principles. The only effect is that the application of those principles is now to be guided by the paramount beacons of legislative policy discernible from Sections 354(3) and 235(2), namely: (1) The extreme penalty can be inflicted only in gravest cases of extreme culpability; (2) In making choice of the sentence, in addition to the

circumstances of the offence, due regard must be paid to the circumstances of the offender also.”

Earlier in the judgment while reaffirming Jagmohan, subject of course to certain adjustments in view of the legislative changes (section 354(3) the Court observed:

“The expression “special reasons” in the context of this provision, obviously means “exceptional

reasons” founded on the exceptionally grave

circumstances of the particular case relating to the crime as well as the criminal. Thus, the legislative policy now writ large and clear on the face of Section 354(3) is that on conviction for murder and other
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capital offences punishable in the alternative with death under the Penal Code, the extreme penalty should be imposed only in extreme cases.”

(Emphasis added)

In conclusion the Constitution Bench decision in Bachan Singh said: “………It is, therefore, imperative to voice the concern that courts, aided by the broad illustrative guidelines indicated by us, will discharge the onerous function with evermore scrupulous care and humane concern, directed along the highroad of legislative policy outlined in Section 354(3) viz. that for persons convicted of murder, life imprisonment is the rule and death sentence an exception. A real and abiding concern for the dignity of human life postulates resistance to taking a life through law’s

instrumentality. That ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed.”

(Emphasis added)

The Bachan Singh principle of `rarest of rare cases’ came up for consideration and elaboration in the case of Machhi Singh. It was a case of extraordinary brutality. On account of a family feud Machhi Singh the main accused in the case, along with eleven accomplices, in course of a single night, conducted raids on a number of villages killing seventeen people, men, women and children for no reason other than they were related to one Amar Singh and his sister Piyaro Bai. The death sentence awarded to Machhi Singh and two other accused by the Trial Court and affirmed by the High Court was also confirmed by this Court. In Machhi Singh the Court put itself in the position of the `Community’ and
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observed that though the `Community’ revered and protected life because `the very humanistic edifice is constructed on the foundation of reverence for life principle’ it may yet withdraw the protection and demand death penalty,

“It may do so `in rarest of rare cases’ when its collective conscience is so shocked that it will expect the holders of the judicial power centre to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty. The community may entertain such a sentiment when the crime is viewed from the platform of the motive for, or the manner of commission of the crime, or the anti-social or abhorrent nature of the crime, such as for instance :

I. Manner of commission of murder

When the murder is committed in an extremely brutal, grotesque, diabolical, revolting or dastardly manner so as to arouse intense and extreme indignation of the community. For instance,

(i) when the house of the victim is set aflame with the end in view to roast him alive in the house.
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(ii) when the victim is subjected to inhuman acts of torture or cruelty in order to bring about his or her death.

(iii) when the body of the victim is cut into pieces or his body is dismembered in a fiendish

manner.

II. Motive for commission of murder

When the murder is committed for a motive which evinces total depravity and meanness. For instance when (a) a hired assassin commits murder for the sake of money or reward (b) a cold-blooded murder is committed with a deliberate design in order to inherit property or to gain control over property of a ward or a person under the control of the murderer or vis-`-vis whom the murderer is in a dominating position or in a position of trust, or (c) a murder is committed in the course for betrayal of the motherland. III. Anti-social or socially abhorrent nature of the crime

(a) When murder of a member of a Scheduled

Caste or minority community etc., is committed

not for personal reasons but in circumstances

which arouse social wrath. For instance when

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such a crime is committed in order to terrorize such persons and frighten them into fleeing

from a place or in order to deprive them of, or make them surrender, lands or benefits conferred on them with a view to reverse past

injustices and in order to restore the social

balance.

(b) In cases of `bride burning’ and what are known as `dowry deaths’ or when murder is committed

in order to remarry for the sake of extracting

dowry once again or to marry another woman

on account of infatuation.

IV. Magnitude of crime

When the crime is enormous in proportion. For instance when multiple murders say of all or almost all the members of a family or a large number of persons of a particular caste, community, or locality, are committed. V. Personality of victim of murder

When the victim of murder is (a) an innocent child who could not have or has not provided even an excuse, much less a provocation, for murder (b) a helpless woman or a person rendered helpless by old age or infirmity (c) when
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the victim is a person vis-`-vis whom the murderer is in a position of domination or trust (d) when the victim is a public figure generally loved and respected by the community for the services rendered by him and the murder is committed for political or similar reasons other than personal reasons.”

In Machhi Singh the Court held that for practical application the rarest of rare cases principle must be read and understood in the background of the five categories of murder cases enumerated in it. Thus the standardisation and classification of cases that the two earlier Constitution Benches had resolutely refrained from doing finally came to be done in Machhi Singh.

28. In Machhi Singh the Court crafted the categories of murder in which `the Community’ should demand death sentence for the offender with great care and thoughtfulness. But the judgment in Machhi Singh was rendered on 20 July, 1983, nearly twenty five years ago, that is to say a full generation earlier. A careful reading of the Machhi Singh categories will make it clear that the classification was made looking at murder mainly as an act of maladjusted individual criminal(s). In 1983 the country was relatively free from organised and professional crime. Abduction for Ransom and Gang Rape and murders committed in course of those offences were yet to become a menace for the society
27

compelling the Legislature to create special slots for those offences in the Penal Code. At the time of Machhi Singh, Delhi had not witnessed the infamous Sikh carnage. There was no attack on the country’s Parliament. There were no bombs planted by terrorists killing completely innocent people, men, women and children in dozens with sickening frequency. There were no private armies. There were no mafia cornering huge government contracts purely by muscle power. There were no reports of killings of social activists and `whistle blowers’. There were no reports of custodial deaths and rape and fake encounters by police or even by armed forces. These developments would unquestionably find a more pronounced reflection in any classification if one were to be made to day. Relying upon the observations in Bachan Singh, therefore, we respectfully wish to say that even though the categories framed in Machhi Singh provide very useful guidelines, nonetheless those cannot be taken as inflexible, absolute or immutable. Further, even in those categories, there would be scope for flexibility as observed in Bachan Singh itself.

29. The matter can be looked at from another angle. In Bachan Singh it was held that the expression “special reasons” in the context of the provision of Section 354(3) obviously means “exceptional reasons” founded on the exceptionally grave circumstances of the particular case relating to the crime as well as the criminal. It was further said that on
28

conviction for murder and other capital offences punishable in the alternative with death under the Penal Code, the extreme penalty should be imposed only in extreme cases. In conclusion it was said that the death penalty ought not to be imposed save in the rarest of rare cases when the alternative option is unquestionably foreclosed. Now, all these expressions “special reasons”, “exceptional reasons”, “founded on the exceptional grave circumstances”, “extreme cases” and “the rarest of the rare cases” unquestionably indicate a relative category based on comparison with other cases of murder. Machhi Singh for the purpose of practical application sought to translate this relative category into absolute terms by framing the five categories. (In doing so, it is held by some, Machhi Singh considerably enlarged the scope for imposing death penalty that was greatly restricted by Bachan Singh!).

30. But the relative category may also be viewed from the numerical angle, that is to say, by comparing the case before the Court with other cases of murder of the same or similar kind, or even of a graver nature and then to see what punishment, if any was awarded to the culprits in those other cases. What we mean to say is this, if in similar cases or in cases of murder of a far more revolting nature the culprits escaped the death sentence or in some cases were even able to escape the criminal justice system altogether it would be highly unreasonable and unjust to pick on the condemned person and confirm the death penalty awarded to
29

him/her by the courts below simply because he/she happens to be before the Court. But to look at a case in this perspective this Court has hardly any field of comparison. The court is in a position to judge `the rarest of rare cases’ or an `exceptional case’ or an `extreme case’ only among those cases that come to it with the sentence of death awarded by the trial court and confirmed by the High Court. All those cases that may qualify as the rarest of rare cases and which may warrant death sentence but in which death penalty is actually not given due to an error of judgment by the trial court or the High Court automatically fall out of the field of comparison. More important are the cases of murder of the worst kind, and their number is by no means small, in which the culprits, though identifiable, manage to escape any punishment or are let off very lightly. Those cases never come up for comparison with the cases this Court might be dealing with for confirmation of death sentence. To say this is because our Criminal justice System, of which the court is only a part, does not work with a hundred percent efficiency or anywhere near it, is not to say something remarkably new or original. But the point is, this Court, being the highest court of the Land, presiding over a Criminal Justice System that allows culprits of the most dangerous and revolting kinds of murders to slip away should be extremely wary in dealing with death sentence and should resort to it, in the words of Bachan Singh, only when the other alternative is unquestionably foreclosed. We are not
30

unconscious of the simple logic that in case five crimes go undetected and unpunished that is no reason not to apply the law to culprits committing the other five crimes. But this logic does not seem to hold good in case of death penalty. On this logic a convict of murder may be punished with imprisonment for as long as you please. But death penalty is something entirely different. No one can undo an executed death sentence.

31. That is not the end of the matter. Coupled with the deficiency of the Criminal Justice System is the lack of consistency in the sentencing process even by this Court. It is noted above that Bachan Singh laid down the principle of the rarest of rare cases. Machhi Singh, for practical application crystallised the principle into five definite categories of cases of murder and in doing so also considerably enlarged the scope for imposing death penalty. But the unfortunate reality is that in later decisions neither the rarest of rare cases principle nor the Machhi Singh categories were followed uniformly and consistently. In Aloke Nath Dutta vs. State of West Bengal, 2006 (13) SCALE 467, Sinha J. gave some very good illustrations from a number of recent decisions in which on similar facts this Court took contrary views on giving death penalty to the convict (see paragraphs 154 to 182, pp.504-510 SCALE). He finally observed that `courts in the matter of sentencing act differently although the fact situation may appear to be somewhat similar’ and further `it is
31

evident that different benches had taken different view in the matter’. Katju J. in his order passed in this appeal said that he did not agree with the decision in Aloke Nath Dutt in that it held that death sentence was not to be awarded in a case of circumstantial evidence. Katju J. may be right that there can not be an absolute rule excluding death sentence in all cases of circumstantial evidence (though in Aloke Nath Dutta it is said `normally’ and not as an absolute rule). But there is no denying the illustrations cited by Sinha J. which are a matter of fact.

32. The same point is made in far greater detail in a report called, “Lethal Lottery, The Death Penalty in India” compiled jointly by Amnesty International India and Peoples Union For Civil Liberties, Tamil Nadu & Puducherry. The report is based on the study of Supreme Court judgments in death penalty cases from 1950 to 2006. One of the main points made in the report (see chapter 2 to 4) is about the Court’s lack of uniformity and consistency in awarding death sentence.

33. The truth of the matter is that the question of death penalty is not free from the subjective element and the confirmation of death sentence or its commutation by this Court depends a good deal on the personal predilection of the judges constituting the bench.

34. The inability of the Criminal Justice System to deal with all major crimes equally effectively and the want of uniformity in the sentencing process by the Court lead to a marked imbalance in the end results. On
32

the one hand there appears a small band of cases in which the murder convict is sent to the gallows on confirmation of his death penalty by this Court and on the other hand there is a much wider area of cases in which the offender committing murder of a similar or a far more revolting kind is spared his life due to lack of consistency by the Court in giving punishments or worse the offender is allowed to slip away unpunished on account of the deficiencies in the Criminal Justice System. Thus the overall larger picture gets asymmetric and lop-sided and presents a poor reflection of the system of criminal administration of justice. This situation is matter of concern for this Court and needs to be remedied.

35. These are some of the larger issues that make us feel reluctant in confirming the death sentence of the appellant.

36. Coming now to the facts of the case it is undeniable that the appellant killed Shakereh in a planned and cold blooded manner but at least this much can be said in his favour that he devised the plan so that the victim could not know till the end and even for a moment that she was betrayed by the one she trusted most. Further though the way of killing appears quite ghastly it may be said that it did not cause any mental or physical pain to the victim. Thirdly, as noted by Sinha J. the appellant confessed his guilt at least partially before the High Court.

37. We must not be understood to mean that the crime committed by the appellant was not very grave or the motive behind the crime was not
33

highly depraved. Nevertheless, in view of the above discussion we feel hesitant in endorsing the death penalty awarded to him by the trial court and confirmed by the High Court. The absolute irrevocability of the death penalty renders it completely incompatible to the slightest hesitation on the part of the court. The hangman’s noose is thus taken off the appellant’s neck.

38. But this leads to a more important question about the punishment commensurate to the appellant’s crime. The sentence of imprisonment for a term of 14 years, that goes under the euphemism of life imprisonment is equally, if not more, unacceptable. As a matter of fact, Mr. Hegde informed us that the appellant was taken in custody on 28 March, 1994 and submitted that by virtue of the provisions relating to remission, the sentence of life imprisonment, without any qualification or further direction would, in all likelihood, lead to his release from jail in the first quarter of 2009 since he has already completed more than 14 years of incarceration. This eventuality is simply not acceptable to this Court. What then is the answer? The answer lies in breaking this standardisation that, in practice, renders the sentence of life imprisonment equal to imprisonment for a period of no more than 14 years; in making it clear that the sentence of life imprisonment when awarded as a substitute for death penalty would be carried out strictly as directed by the Court. This Court, therefore, must lay down a good and
34

sound legal basis for putting the punishment of imprisonment for life, awarded as substitute for death penalty, beyond any remission and to be carried out as directed by the Court so that it may be followed, in appropriate cases as a uniform policy not only by this Court but also by the High Courts, being the superior Courts in their respective States. A suggestion to this effect was made by this Court nearly thirty years ago in Dalbir Singh and others vs. State of Punjab, (1979) 3 SCC 745. In paragraph 14 of the judgment this Court held and observed as follows: “14. The sentences of death in the present appeal are liable to be reduced to life imprisonment. We may add a footnote to the ruling in Rajendra Prasad case. Taking the cue from the English legislation on abolition, we may suggest that life imprisonment which strictly means imprisonment for the whole of the men’s life but in practice amounts to incarceration for a period between 10 and 14 years may, at the option of the convicting court, be subject to the condition that the sentence of imprisonment shall last as long as life lasts, where there are exceptional indications of murderous recidivism and the community cannot run the risk of the convict being at large. This takes care of judicial apprehensions that unless physically liquidated the culprit may at some remote time repeat murder.”

[Emphasis added]

We think that it is time that the course suggested in Dalbir Singh should receive a formal recognition by the Court.

39. As a matter of fact there are sufficient precedents for the Court to take such a course. In a number of cases this court has substituted death
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penalty by life imprisonment or in some cases for a term of twenty years with the further direction that the convict would not be released for the rest of his life or until the twenty year term was actually served out. In this case too Sinha J. passed exactly the same order. After declining to confirm the death sentence given to the appellant he proceeded to give the following direction.

“However, while saying so, we (sic) direct that in a case of this nature `life sentence’ must be meant to be `life sentence’. Such a direction can be given, as would appear from some precedents.”

Sinha J. then mentioned the following five cases in which this Court had passed similar orders.

40. In Subhash Chander vs. Krishan La & others, (2001) 4 SCC 458, five accused persons, including Krishan Lal were put on trial for committing multiple murders. The trial court acquitted one of the accused but convicted the rest of them and sentenced each of them to death. In the death reference/appeals preferred by the convicted accused, the High Court confirmed the conviction of all the four accused but commuted their death sentence to life imprisonment. One Subhash Chander (PW-2) came to this Court in appeal. On a consideration of the material facts this Court felt that the High Court was not justified in commuting the sentence of death of at least one accused, Krishan Lal. But then the counsel appearing on his behalf implored that instead of
36

death penalty this Court might order for imprisonment of Krishan Lal for the remaining period of his life. This Court took note of the counsel’s submission as follows:

“Faced with the situation Mr. U. R. Lalit, Senior Counsel appearing for the aforesaid respondents submitted that instead of depriving Krishan Lal (A-1) of his life, the Court can pass appropriate order to deprive the aforesaid accused person of his liberty throughout his life. Upon instructions, the learned Senior Counsel submitted that the said Krishan Lal, if sentenced to life imprisonment would never claim his premature release or

commutation of his sentence on any ground. We record such a submission made on behalf of the said accused, upon instructions.”

(Emphasis added)

This Court accepted the plea made by the counsel and passed the following order:

“However, in the peculiar circumstances of the case, apprehending imminent danger to the life of Subhash Chander and his family in future, taking on record the statement made on behalf of Krishan Lal (A-1), we are inclined to hold that for him the imprisonment for life shall be the imprisonment in prison for the rest of his life. He shall not be entitled to any commutation or premature release under Section 401 of the Code of Criminal Procedure, Prisoners Act, Jail Manual or any other statute and the rules made for the purposes of grant of commutation and remissions.”

(Emphasis added)

In Subhash Chander this court referred to an earlier judgment in State of M.P. vs. Ratan Singh, (1976) 3 SCC 470, in which it was held that a
37

sentence of imprisonment for life means a sentence for the entire life of the prisoner unless the appropriate Government chooses to exercise its discretion to remit either the whole or a part of the sentence under Section 401 of the Code of Criminal Procedure. The Court also referred to the earlier decisions in Sohan Lal vs. Asha Ram, (1981) 1 SCC 106 (This is a mistake since Sohan Lal is a completely different case; apparently the reference was to Maru Ram vs. Union of India on page 107 of the same report), Bhagirath vs. Delhi Administration, (1985) 2 SCC 580 and Zahid Hussein vs. State of West Bengal, (2001) 3 SCC 750.

41. In Shri Bhagwan vs. State of Rajasthan, (2001) 6 SCC 296, the appellant, who was 20 years old at the time of commission of the offence, had come to this Court, condemned to death by the trial court and the High Court. According to prosecution, he had killed five members of a family by mercilessly battering them to death. The manner of killing was brutal and the circumstances of the crime exhibited crass ingratitude on the appellant’s part. The motive was theft of gold ornaments and other articles belonging to the victim family. In this case, K. G. Balakrishnan, J. (as the Hon’ble the Chief Justice was at that time) who wrote the judgment for the Court commuted the death sentence awarded to the appellant to imprisonment for life subject to the direction that he would not be released from the prison until he had served out at least 20 years of imprisonment including the period already undergone by him. In this
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case there is also a very useful discussion with regard to the provisions of commutation and remission in the Code of Criminal Procedure and the prison rules to which we shall advert later on in this judgment.

42. In Prakash Dhawal Khairnar (Patil) vs. State of Maharashtra, (2002) 2 SCC 35, the condemned appellant had committed the murder of his own brother, their mother and four members of his brother’s family because the deceased brother was not partitioning the property which the appellant claimed to be joint family property. In the totality of circumstances this Court set aside the death sentence awarded to the appellant but directed that for the murders committed by him, he would suffer imprisonment for life and further that he would not be released from prison until he had served out at least 20 years of imprisonment including the period already undergone by him. For giving such a direction, the court referred to the decisions in Shri Bhagwan (supra) and Dalbir Singh V. The State of Punjab, (1979) 3 SCC 745.

43. In Ram Anup Singh & others V. State of Bihar, (2002) 6 SCC 686, there were a father and his two sons before this court. They had killed the father’s brother, the brother’s wife, his daughter and his son-in-law. On conviction for the murders the father was sentenced to life imprisonment but the two sons were given the death penalty. This Court once again interfered and set aside the death sentence awarded by the trial court and confirmed by the High Court to the two sons and instead
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sentenced them to suffer rigorous imprisonment for life with the condition that they would not be released before completing an actual term of 20 years including the period of imprisonment already undergone by them. Reference was made to the decisions in Shri Bhagwan, Dalbir Singh and Prakash Dhawal Khairnar (Patil) (supra).

44. The fifth decision mentioned by Sinha J. was in Mohd. Munna vs. Union of India, (2005) 7 SCC 417. In this case it was basically held that in the absence of an order of remission formally passed by the appropriate government, there was no provision in the Penal Code or in the Code of Criminal Procedure under which a sentence of life imprisonment could be treated as for a term of 14 years or 20 years and further that a convict undergoing imprisonment for life could not claim remission as a matter of right.

45. To this list of five cases mentioned by Sinha J. one could add one or two more.

46. In Jayawant Dattatraya Suryarao vs. State of Maharashtra, (2001) 10 SCC 109, this Court had before it a batch of five analogous cases. There were three appeals on behalf of three of the accused convicted by the trial court; another appeal by the State in regard to the accused who were acquitted by the trial court and a death reference in regard to one of the appellants, Subhashsingh Shobhanathsingh Thakur (A-6) who was given sentences of death on two counts, one under the
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provisions of the Terrorist and Disruptive Activities (Prevention) Act (TADA) and the other under section 120-B of the Penal Code. According to the prosecution case the appellants, along with a number of other co-accused, armed with highly sophisticated weapons had raided J.J.Hospital in Mumbai where the victim, a member of another underworld gang, was admitted for treatment. In the hospital they made indiscriminate firing killing not only their target but also two policemen who were on guard duty and injuring several others. The court confirmed the conviction of appellant No.6 but modified the sentence from death penalty to imprisonment for life – till rest of life. For the direction given by it the court referred to the decisions in Subhash Chander (supra), State of Madhya Pradesh (supra), Shri Bhagwan (supra), Sohan Lal (supra), Bhagirath vs. Delhi Administration (supra) and Zahid Hussein (supra).

47. In Nazir Khan & others Vs. State of Delhi, (2003) 8 SCC 461, three of the appellants before the Court were sentenced to death for committing offences punishable under Section 364-A read with Section 120-B, IPC. They were also convicted under the provisions of Terrorist and Disruptive Activities (Prevention) Act (TADA) with different terms of imprisonment for those offences. This Court, however, commuted the death sentence of the three appellants but having regard to the gravity of the offences and the dastardly nature of their acts directed for their
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incarceration for a period of 20 years with the further direction that the accused-appellants would not be entitled to any remission from the term of 20 years. Reference was made to the earlier decisions in Ashok Kumar vs. Union of India, (1991) 3 SCC 498 and Sat Pal vs. State of Haryana, (1992) 4 SCC 172.

48. On a perusal of the seven decisions discussed above and the decisions referred to therein it would appear that this Court modified the death sentence to imprisonment for life or in some cases imprisonment for a term of twenty years with the further direction that the convict must not be released from prison for the rest of his life or before actually serving out the term of twenty years, as the case may be, mainly on two premises; one, an imprisonment for life, in terms of section 53 read with section 45 of the Penal Code meant imprisonment for the rest of life of the prisoner and two, a convict undergoing life imprisonment has no right to claim remission. In support of the second premise reliance is placed on the line of decisions beginning from Gopal Vinayak Godse vs. The State of Maharashtra, 1961 (3) SCR 440 and coming down to Mohd. Munna vs. Union of India(supra).

49. In course of hearing of the appeal before us strong doubts were raised over the application of the second premise for putting a sentence of imprisonment beyond remission. It was contended that to say that a convict undergoing a sentence of imprisonment had no right to claim
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remission was not the same as the Court, while giving the punishment of imprisonment, suspending the operation of the statutory provisions of remission and restraining the appropriate government from discharging its statutory function.

50. In this connection an interesting development was brought to our notice. We were informed that Subhashsingh Shobhanathsingh Thakur whose death sentence was modified by this Court to imprisonment for life – till rest of life by its judgment dated 5 November, 2001 in Jayawant Dattatraya Suryarao vs. State of Maharashtra, (supra) has filed a writ petition under Article 32 of the Constitution before this Court (Writ Petition (Criminal) No. 36 of 2008: Subhashsingh Shobhanathsingh Thakur vs. The State of Maharashtra) challenging, on substantially the same grounds, the order of the Court, in so far as it directed for the non application of the statutory provisions of remission to his case.

51. Our attention was also invited to a decision of this Court in State (Government of NCT of Delhi) vs. Prem Raj, (2003) 7 SCC 121. In this case, Prem Raj, the accused respondent before the court was convicted by the trial court under Section 7 read with Section 13(1)(d) and 13(2) of the Prevention of Corruption Act and was sentenced to undergo rigorous imprisonment for two years and a fine of Rs.500/- under Section 7. He was additionally sentenced to undergo imprisonment for 3-1/2 years and
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a fine of Rs.1, 000/- under Section 13(2) of the Act, subject to the direction that the two sentences would run concurrently. In appeal, on a plea made on the question of sentence, a learned Single Judge of the High Court enhanced the amount of fine to Rs.15, 000/- in lieu of the sentences of imprisonment and directed that on deposit of the amount of fine the State government, being the `appropriate government’ would formalize the matter by passing an appropriate order under Section 433 (c) of the Code of Criminal Procedure. This Court, on appeal by the State, held that the question of remission lay within the domain of the appropriate government and it was not open to the High Court to give a direction of that kind. In the case of Prem Raj the Court referred to two earlier decisions in Delhi Administration vs. Manohar Lal, (2002) 7 SCC 222 and State of Punjab vs. Kesar Singh, (1996) 5 SCC 495 and in paragraph 13 of the decision observed as follows : “An identical question regarding exercise of power in terms of Section 433 of the Code was considered in Delhi Admn. (now NCT of Delhi) vs. Manohar Lal. The Bench speaking through one of us (Doraiswamy Raju,J.) was of the view that exercise of power under Section 433 was an executive discretion. The High Court in exercise of its revisional jurisdiction had no power conferred on it to commute the sentence

imposed where a minimum sentence was provided for the offence. In State of Punjab vs. Kesar Singh, this Court observed as follows [though it was in the context of Section 433(b)]: (SCC pp.595-96, para 3)” “The mandate of Section 433 Cr. P. C. enables the Government in an appropriate case to commute the sentence of a convict and to prematurely order his
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release before expiry of the sentence as imposed by the courts…..That apart, even if the High Court could give such a direction, it could only direct

consideration of the case of premature release by the Government and could not have ordered the

premature release of the respondent itself. The right to exercise the power under Section 433 Cr. P. C. vests in the Government and has to be exercised by the Government in accordance with the rules and established principles. The impugned order of the High Court cannot, therefore, be sustained and is hereby set aside.”

Relying upon the aforesaid two decisions this Court set aside the order of the court but left it open to the accused to move the appropriate Government for such relief as may be available in law. It was further clarified that it would be at the sole discretion of the Government to exercise the power conferred on it in accordance with law.

52. Before us it was submitted that just as the Court could not direct the appropriate government for granting remission to a convicted prisoner, it was not open to the Court to direct the appropriate government not to consider the case of a convict for grant of remission in sentence. It was contended that giving punishment for an offence was indeed a judicial function but once the judgment was pronounced and punishment awarded the matter no longer remained in the hands of the Court. The execution of the punishment passed into the hands of the executive and under the scheme of the statute the Court had no control over the execution.

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53. In our view, the submission is wholly misconceived and untenable and the decision in the case of Prem Raj has no application to the issue under consideration.

54. At this stage, it will be useful to take a very brief look at the provisions with regard to sentencing and computation, remission etc. of sentences. Section 45 of the Penal Code defines “life” to mean the life of the human being, unless the contrary appears from the context. Section 53 enumerates punishments, the first of which is death and the second, imprisonment for life. Sections 54 and 55 give to the appropriate Government the power of commutation of the sentence of death and the sentence of imprisonment for life respectively. Section 55A defines “appropriate Government”. Section 57 provides that in calculating fractions of terms of punishment, imprisonment for life shall be reckoned as equivalent to imprisonment for twenty years. It is now conclusively settled by a catena of decisions that the punishment of imprisonment for life handed down by the Court means a sentence of imprisonment for the convict for the rest of his life. (See the decisions of this Court in Gopal Vinayak Godse vs. The State of Maharashtra &others, (1961) 3 SCR 440 (Constitution Bench); Dalbir Singh & others vs. State of Punjab, (1979) 3 SCC 745; Maru Ram vs. Union of India, (1981) 1 SCC 107 (Constitution Bench); Naib Singh vs. State of Punjab, (1983) 2 SCC 454; Ashok Kumar alias Golu vs. Union of India, (1991) 3 SCC 498; Laxman
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Naskar (Life Convict) vs. State of W.B.,, (2000) 7 SCC 626; Zahid Hussein vs. State of West Bengal, (2001) 3 SCC 750; Kamalanantha vs. State of Tamil Nadu, (2005) 5 SCC 194; Mohd.Munna vs. Union of India, (2005) 7 SCC 416 and C.A.Pious vs. State of Kerala, (2007) 8 SCC 312).

55. It is equally well-settled that Section 57 of the Penal Code does not in any way limit the punishment of imprisonment for life to a term of twenty years. Section 57 is only for calculating fractions of terms of punishment and provides that imprisonment for life shall be reckoned as equivalent to imprisonment for twenty years. (See : Gopal Vinayak Godse (supra) and Ashok Kumar alias Golu (supra). The object and purpose of Section 57 will be clear by simply referring to Sections 65, 116, 119, 129 and 511 of the Penal Code.

56. This takes us to the issue of computation and remission etc. of sentences. The provisions in regard to computation, remission, suspension etc. are to be found both in the Constitution and in the statutes. Articles 72 and 161 of the Constitution deal with the powers of the President and the Governors of the State respectively to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence. Here it needs to be made absolutely clear that this judgment is not concerned at all with the Constitutional provisions that are in the nature
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of the State’s sovereign power. What is said hereinafter relates only to provisions of commutation, remission etc. as contained in the Code of Criminal Procedure and the Prisons Acts and the Rules framed by the different States.

57. Section 432 of the Code of Criminal Procedure deals with the power to suspend or remit sentences and Section 433 with the power to commute sentences. Section 433A, that was inserted in the Code by an amendment made in 1978, imposes restriction on powers of remission or commutation in certain cases. It reads as follows: “Restriction on powers of remission or

computation in certain cases – Notwithstanding

anything contained in section 432, where a sentence of imprisonment for life is imposed on conviction of a person for an offence for which death is one of the punishment provided by laws or where a sentence of death imposed on a person has been commuted under section 433 into one of imprisonment for life, such person shall not be released from prison unless he had at least fourteen years of imprisonment.”

Section 434 gives concurrent power to the Central Government in case of death sentence and Section 435 provides that in certain cases the State Government must act only after consultation with the Central Government.

58. From the Prison Act and the Rules it appears that for good conduct and for doing certain duties etc. inside the jail the prisoners are given some days’ remission on a monthly, quarterly or annual basis. The days
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of remission so earned by a prisoner are added to the period of his actual imprisonment (including the period undergone as an under trial) to make up the term of sentence awarded by the Court. This being the position, the first question that arises in mind is how remission can be applied to imprisonment for life. The way in which remission is allowed, it can only apply to a fixed term and life imprisonment, being for the rest of life, is by nature indeterminate.

59. Mr. U. U. Lalit, learned counsel appearing for the Informant, suggested that for applying remission to a sentence of imprisonment for life it would be necessary to first commute the sentence to a fixed term, say for a term of 20 years and then to apply the remissions earned by the prisoner to the commuted period and that would work out to 14 years of actual incarceration.

60. To throw light on the question Mr. Hegde submitted a note on remission of sentences of imprisonment as followed in the State of Karnataka, with specific reference to the facts of this case. The note also encloses the relevant extracts from the Karnataka Prison Rules, 1974 and the Karnataka Prison Manual, 1978. Chapter XII of the Karnataka Prison Manual deals with the remission system; Rule 215 defines remission of sentence and provides for three kinds of remissions, namely, ordinary remission, special remission and remission by the State Government. But
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what is significant for our purpose is the stipulation made in Rule 214(c) which reads as follows:

“The sentence of all prisoners sentenced to

imprisonment for life or to more than 20 years

imprisonment in the aggregate to imprisonment for life and imprisonment for exceeding in the aggregate 20 years, shall for the these Rules be deemed to be sentence of imprisonment for 20 years

.

(Emphasis added)

In the note submitted by the counsel it is explained that the cases of life convicts are first considered for remission by an Advisory Board constituted under Rule 814. The proposals for premature release of life convicts, convicted after 18 December, 1978 (the date of introduction of Section 433A in the Code) are placed before the Advisory Board, as provided under Government Order No. HD 92 PRR 88, dated 17 July, 1989 on completion of 13 years and 8 months of imprisonment including the under trial period. The recommendations of the Board go to the Inspector General of Prisons together with all the records and are finally placed before the Government for considering the premature release of the prisoners on completing 14 years of imprisonment. The State Government considers the recommendations of the Advisory Board and gives directions either for the forthwith release of the prisoner or that the prisoner would be released in the ordinary course on the expiry of the sentence, less the period of remission earned. In case of a life convict if
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no order of premature release is passed there can be no release by the mere lapse of time since a life sentence is for the rest of life.

61. To the question whether any specific orders are passed by the Government to commute the sentence of life imprisonment to imprisonment for 20 years or less, the answer is given in the note, as follows:

“In addition to what is stated in para 3.1, it may be added that cases of life imprisonment pass through the Advisory Board and their recommendations are

examined by the Head of the Department viz.,

Additional Director General of Police and Inspector General of Prisons who later forwards them to the Government for passing final orders. That is how the sentence of life imprisonment is commuted for a term of 20 years or less as per provisions of Sections 54 and 55 of the IPC and Section 433A Cr. P. C.”

It is further stated in the note as follows:

“Experience shows that in respect of life convicts an assumption can be made that the total sentence is 20 years and if the convict earns all categories of remissions in the normal course it may come to 6 years which is less than one third of 20 years. This is also in consonance with Order 214(C) of the Prisons Manual which for the purposes of the rules deems a sentence of imprisonment for life to be a sentence of imprisonment for twenty years.”

[Emphasis added]

In the note, it is further stated that in the event the appellant’s sentence is modified to life imprisonment, his case for premature release would come up before the Advisory Board in January 2009. The Board shall
51

then make its recommendation in light of the instructions contained in Chapter XLIV of the Karnataka Prisons Manual. The recommendation of the Board will be examined by the Head of the Department and thereafter the State Government will pass appropriate orders regarding commutation of his sentence.

62. We also got some enquiries made on the issue of premature release of a life convict in the State of Bihar and came to learn that the process follows basically a similar pattern. In Bihar too the order for early release of a convicted prisoner is passed by the State Government in the Department of Law (Justice) on the basis of recommendations made by the Bihar State Sentence Remission Board. But there also the significant thing is the conversion of life imprisonment into imprisonment for a fixed term. In this regard the Government Letter No.A/PM-03/81-550 dated 21 January, 1984 was brought to our notice. The letter begins by stating the Government decision that for grant of remission to a life convict and for his release from prison, imprisonment for life will be deemed to be imprisonment for a term of 20 years. Then in paragraph 1 in the letter, in its original form it was stated that a life convict would not be entitled to the benefit of set off under Section 428 of the Code of Criminal Procedure, 1973 for the period of incarceration as an under trial. Paragraph 1 of the letter was, however, deleted by letter No. 3115 dated 23 May, 1985 following the decision of this Court in Bhagirath vs.
52

Delhi Administration (supra). Paragraph 2 of the letter as it originally stood stipulated that an accused who is given the punishment of imprisonment for life in a capital offence or whose death sentence is commuted to life imprisonment under Section 433 of the Code as well as an accused who was awarded life sentence after 18 December, 1978 would be released from prison (a) only on completion of 14 years of actual imprisonment; and (b) when the total period of their imprisonment and the days of remission add up to 20 years. Paragraph 2 of this letter too was later deleted by Government letter No. 2939, dated 29 June, 2007 that provided that the decision to release a convict undergoing life imprisonment for a capital offence or whose death sentence is commuted to life imprisonment would be taken by the State Government or by the State Sentence Remission Board constituted by the Government.

63. It is thus to be seen that both in Karnataka and Bihar remission is granted to life convicts by deemed conversion of life imprisonment into a fixed term of 20 years. The deemed conversion of life imprisonment into one for fixed term by executive orders issued by the State Governments apparently flies in the face of a long line of decisions by this Court and we are afraid no provision of law was brought to our notice to sanction such a course. It is thus to be seen that life convicts are granted remission and released from prison on completing the fourteen year term without any sound legal basis. One can safely assume that the position would be
53

no better in the other States. This Court can also take judicial notice of the fact that remission is allowed to life convicts in the most mechanical manner without any sociological or psychiatric appraisal of the convict and without any proper assessment as to the effect of the early release of a particular convict on the society. The grant of remission is the rule and remission is denied, one may say, in the rarest of the rare cases.

64. Here, it may be noted that this has been the position for a very long time. As far back as in 1973, in Jagmohan Singh (supra) a Constitution Bench of this Court made the following observation: “In the context of our criminal law which punishes murderer, one cannot ignore the fact that life

imprisonment works out in most cases to a dozen years of imprisonment and it may be seriously

questioned whether that sole alternative will be an adequate substitute for the death penalty.”

(Emphasis added)

Five years after Jagmohan, Section 433A was inserted in the Code of Criminal Procedure, 1973 imposing a restriction on the power of remission or commutation in certain cases. After the introduction of Section 433A another Constitution Bench of this Court in Bachan Singh (supra) made the following observation:

“It may be recalled that in Jagmohan this Court had observed that, in practice, life imprisonment amounts to 12 years in prison. Now, Section 433A restricts the power of remission and commutation conferred on the appropriate Government under Sections 432 and 433,
54

so that a person who is sentenced to imprisonment for life or whose death sentence is commuted to

imprisonment for life must serve actual imprisonment for a minimum of 14 years.”

Thus all that is changed by Section 433A is that before its insertion an imprisonment for life in most cases worked out to a dozen years of imprisonment and after its introduction it works out to fourteen years’ imprisonment. But the observation in Jagmohan that this cannot be accepted as an adequate substitute for the death penalty still holds true.

65. Earlier in this judgment it was noted that the decision in Shri Bhagwan (supra) there is a useful discussion on the legality of remission in the case of life convicts. The judgment in Shri Bhagwan, in paragraph 22, refers to and quotes from the earlier decision in State of M.P. vs. Ratan Singh (supra) which in turn quotes a passage from the Constitution Bench decision in Gopal Vinayek Godse (supra). It will be profitable to reproduce here the extract from Ratan Singh:

“4. As regards the first point, namely, that the prisoner could be released automatically on the expiry of 20 years under the Punjab Jail Manual or the Rules framed under the Prisons Act, the matter is no longer res integra and stands concluded by a decision of this Court in Gopal Vinayak Godse v. State of

Maharashtra, (1961) 3 SCR 440 where the Court,

following a decision of the Privy Counsel in Pandit Kishori Lal v. King Emperor, AIR 1954 PC 64

observed as follows:

55

“Under that section a person transported for life or any other terms before the enactment of the said section would be treated as a person sentenced to rigorous imprisonment for life or for the said term. If so the next question is whether there is any provision of law whereunder a sentence for life imprisonment, without any formal remission by

appropriate Government, can be automatically treated as one for a definite period. No such provision is found in the Indian Penal Code, Code of Criminal Procedure or the Prisons Act.

* * * * *

A sentence of transportation for life or

imprisonment for life must prima facie be treated as transportation or imprisonment for the whole of the remaining period of the convicted person’s natural life”.

The Court further observed thus:

“But the Prisons Act does not confer on any

authority a power to commute or remit sentences; it provides only for the regulation of prisons and for the treatment of prisoners confined therein. Section 59 of the Prisons Act confers a power on the State

Government to make rules, inter alia, for rewards for good conduct. Therefore, the rules made under the Act should be construed within the scope of the ambit of the Act……Under the said rules the order of an appropriate Government under Section 401 Criminal Procedure Code, are a pre-requisite for a release. No other rule has been brought to our notice which confers an indefeasible right on a prisoner sentenced to transportation for life to an unconditional release on the expiry of a particular term including

remissions. The rules under the Prisons Act do not substitute a lesser sentence for a sentence of

transportation for life.

56

The question of remission is exclusively within the province of the appropriate Government; and in this case it is admitted that, though the appropriate Government made certain remissions under Section 401 of the Code of Criminal Procedure, it did not remit the entire sentence. We, therefore, hold that the petitioner has not yet acquired any right to release’. It is, therefore, manifest from the decision of this Court that the Rules framed under the Prisons Act or under the Jail Manual do not affect the total period which the prisoner has to suffer but merely amount to administrative instructions regarding the various remissions to be given to the prisoner from time to time in accordance with the rules. This Court further pointed out that the question of remission of the entire sentence or a part of it lies within the exclusive domain of the appropriate Government under Section 401 of the Code of Criminal Procedure and neither Section 57 of the Indian Penal Code nor any Rules or local Acts can stultify the effect of the sentence of life imprisonment given by the court under the Indian Penal Code. In other words, this Court has clearly held that a sentence for life would ensure till the lifetime of the accused as it is not possible to fix a particular period the prisoner’s death and remissions given under the Rules could not be regarded as a substitute for a sentence of transportation for life.” Further, in paragraph 23, the judgment in Shri Bhagwan observed as follows:

“In Maru Ram vs. Union of India, (1981) 1 SCC 107, a Constitution Bench of this Court reiterated the aforesaid position and observed that the inevitable conclusion is that since in Section 433A we deal only with life sentences, remissions lead nowhere and cannot entitle a prisoner to release. Further, in Laxman Naskar (Life Convict) vs. State of W.B. & Anr., (2000) 7 SCC 626, after referring to the

decision of the case of Gopal Vinayak Godse vs.
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State of Maharashtra, (1961) 3 SCR 440, the court reiterated that sentence for “imprisonment for life” ordinarily means imprisonment for the whole of the remaining period of the convicted person’s natural life; that a convict undergoing such sentence may earn remissions of his part of sentence under the Prison Rules but such remissions in the absence of an order of an appropriate Government remitting the entire balance of his sentence under this section does not entitled the convict to be released automatically before the full life term if served. It was observed that though under the relevant Rules a sentence for

imprisonment for life is equated with the definite period of 20 years, there is no indefeasible right of such prisoner to be unconditionally released on the expiry of such particular term, including remissions and that is only for the purpose of working out the remissions that the said sentence is equated with definite period and not for any other purpose.” The legal position as enunciated in Pandit Kishori Lal, Gopal Vinayak Godse, Mau Ram, Ratan Singh and Shri Bhagwan and the unsound way in which remission is actually allowed in cases of life imprisonment make out a very strong case to make a special category for the very few cases where the death penalty might be substituted by the punishment of imprisonment for life or imprisonment for a term in excess of fourteen years and to put that category beyond the application of remission.

66. The matter may be looked at from a slightly different angle. The issue of sentencing has two aspects. A sentence may be excessive and unduly harsh or it may be highly disproportionately inadequate. When an appellant comes to this court carrying a death sentence awarded by the trial court and confirmed by the High Court, this Court may find, as in
58

the present appeal, that the case just falls short of the rarest of the rare category and may feel somewhat reluctant in endorsing the death sentence. But at the same time, having regard to the nature of the crime, the Court may strongly feel that a sentence of life imprisonment that subject to remission normally works out to a term of 14 years would be grossly disproportionate and inadequate. What then the Court should do? If the Court’s option is limited only to two punishments, one a sentence of imprisonment, for all intents and purposes, of not more than 14 years and the other death, the court may feel tempted and find itself nudged into endorsing the death penalty. Such a course would indeed be disastrous. A far more just, reasonable and proper course would be to expand the options and to take over what, as a matter of fact, lawfully belongs to the court, i.e., the vast hiatus between 14 years’ imprisonment and death. It needs to be emphasized that the Court would take recourse to the expanded option primarily because in the facts of the case, the sentence of 14 years imprisonment would amount to no punishment at all.

67. Further, the formalisation of a special category of sentence, though for an extremely few number of cases, shall have the great advantage of having the death penalty on the statute book but to actually use it as little as possible, really in the rarest of the rare cases. This would only be a
59

reassertion of the Constitution Bench decision in Bachan Singh (supra) besides being in accord with the modern trends in penology.

68. In light of the discussions made above we are clearly of the view that there is a good and strong basis for the Court to substitute a death sentence by life imprisonment or by a term in excess of fourteen years and further to direct that the convict must not be released from the prison for the rest of his life or for the actual term as specified in the order, as the case may be.

69. In conclusion we agree with the view taken by Sinha J. We accordingly substitute the death sentence given to the appellant by the trial court and confirmed by the High court by imprisonment for life and direct that he shall not be released from prison till the rest of his life.

70. This appeal stands disposed off with the aforesaid directions and observations.

……………………………

J.

[B.N.Agrawal]

……………………………

J.

[G.S.Singhvi]

60

……………………………J.

[Aftab Alam]

New Delhi,

July 22, 2008.

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Adultery in India

Section 497 in The Indian Penal Code, 1860 497.

Adultery.– Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such case the wife shall not be punishable as an abettor.

Judgment by Delhi High Court:

 

Sh. Sandwip Roy vs Sh. Sudarshan Chakraborty on 4 June, 2007

Author: A Sikri

Bench: A Sikri

JUDGMENT

A.K. Sikri, J.

Page 1967

1. The Petitioner (accused) and the Respondent (complainant), in the instant case, are both residents of Chitranjan Park, New Delhi. Complainant is a married person with two children out of the wedlock. He was married on 4.12.1987 at Dhanbad. The Petitioner is stated to be an old friend of the complainant and known to him for last number of years. The Petitioner is an unmarried man and had been a frequent visitor to the family of the complainant.

2. On 22.10.1998, a divorce petition was filed by the complainant against his wife on the ground of adultery. The Petitioner was also imp leaded as respondent No. 2 in the said divorce petition as the allegation was that the Petitioner was living in adultery with the complainant’s wife number of times. Four months after filing the divorce petition, the complainant on the basis of these very allegations also filed a complaint under Sections 497 & 506 IPC on 9.2.1999. However, some time later the complainant withdrew the divorce petition on 24.11.1999 making a statement that he had compromised the matter with his wife and both had started living together and, therefore, he did not want to pursue the said petition. However, the complainant pursued the complaint against the Petitioner herein.

3. This complaint was initially dismissed by the Learned MM vide order dated 11.9.2003. The complainant, however, Page 1968 preferred revision petition against this order and after hearing the said revision petition, the Learned ASJ passed the order dated 23.12.2003, whereby, remanding the case back to the Learned MM and directing him to reconsider the question of summoning of the Petitioner. On remand, the Learned MM passed the following order on 24.12.2003:

File and order of Court of Shri Lal Singh, ASJ received. Since case is remanded back, so case be registered.

Sessions Court in its findings have already held that there is a prima facie evidence against the accused and offence of adultery is already made out. Hence on basis of findings given by the Ld. ASJ, I find prima facie case under Section 497 IPC against accused. No offence under Section 506 IPC is made out even after reconsidering the evidence. Accordingly, issue summons to accused on PF/Speed post and through process server of court on 20.1.2004.

4. The Petitioner had, in the meantime, preferred petition under Section 482 of the Cr.P.C. against the order dated 23.12.2003 passed by Learned ASJ remanding the case back to the MM. This petition was disposed of by this Court vide order dated 13.2.2004, inter alia, observing:

…It is obvious that a remand order which is based on an allegation that the Magistrate has not summoned the accused inspite of material on record cannot be an order on merits of the case but is a direction to the Magistrate to reconsider the material placed before him in the complaint in accordance with law.

5. After this order was passed, the Petitioner moved an application for recalling summoning orders dated 24.12.2003. This application has been rejected by the Learned MM vide order dated 30.10.2004. The Learned MM, inter alia, observed that in view of the judgment in the case ofAdalat Prasad v. Rooplal Jindal and Ors. 113 (2004) DLT 356 (SC), the application for recalling was not maintainable. He also referred to the order dated 23.12.2003 of the Learned ASJ. The aforesaid two orders passed by the Learned MM are challenged primarily on two grounds:

1) With the withdrawal of divorce petition by the complainant on 24.11.1999, the acts of adultery had been condoned by the complainant and, therefore, it was not open to the complainant to pursue the complaint. In support, he referred to the judgment of the Supreme Court in the case of Smt. Chandra Mohini Srivastava v. Shri Avinash Prasad Srivastava and Ors. AIR 1967 Supreme Court 581 and Jasimaddin Sheikh v. Ichohak Mistri Vol. I Calcutta Weekly Notes

498.

2) There was no application of mind by the Learned MM in passing the impugned order as he had not recorded his own satisfaction but was influenced by the orders dated 23.12.2003 passed by Learned ASJ which he could not do. Order dated 13.2.2004 passed by this Court clinches this issue as the Court directed that the Magistrate was to reconsider the material placed before him in the complaint in Page 1969 accordance with the law and to come to his own conclusion. His submission was that MM’s order did not amount to taking “cognizance of an offence which was a pre condition” as held by the Supreme Court in CREF Finance Ltd. v. Shree Shanthi Homes (P) Ltd. and Anr. . He also referred to the judgment of Supreme Court in the case of Pepsi Foods and Ors. v. Special Judicial Magistrate . In support of the submission that summoning of

the accused person was indeed a grave matter and it was the duty of the Magistrate to carefully scrutinize the evidence brought on record and then examine if prima facie any offence had been committed by the Petitioner herein and since the Learned MM had not applied his independent mind, the order was bad in law. He also submitted that Adalat Prasad v. Rooplal Jindal and Ors.(supra) case was wrongly applied. As the impugned order dated 24.12.2003 was passed by the Learned MM without giving his own reasons and merely on the basis of observations of the Court of Sessions, conditions precedent for issuing the process under Section 204 CrPC were not satisfied.

6. Learned counsel for the Respondent, on the other hand, argued that the Respondent/complainant withdrew the divorce petition in the interest of his children as he had patched up with his wife but in no way he condoned the acts of adultery committed by the Petitioner. Therefore, it was permissible for him to continue with the complaint filed against the Petitioner. He further submitted that the impugned orders passed by the Learned MM were perfectly valid. The Learned MM had applied his mind and instead of recording his reasons in detail has referred to the reasoning given by the Learned ASJ on the basis of which he could take cognizance and issue summoning orders.

7. The Hon’ble Supreme Court in Smt. Chandra Mohini Srivastava v. Shri Avinash Prasad Srivastava and Ors. (supra), which was a case under Hindu Marriage Act and petition for divorce was filed on the ground of adultery, held that the fact that the husband cohabited with his wife even after knowledge that she had been guilty of cohabiting with another person would be sufficient to constitute condensation and once the acts of adultery had been condoned, the husband could not seek divorce on this ground. This judgment therefore has no relevancy in the context of Section 497 IPC proceedings.

8. The divorce petition filed by the complainant was withdrawn by making the following statement:

Statement of Shri Sudarshan Chakraverty, Petitioner in person. On S.A. Respondent No. 1 i.e. Smt. Sunetra Chakraverty i.e. my legally wedded wife and two children born from our wedlock during the pendency of the petition, I have compromised the matter with my wife and we have started living together and as such I do not want to pursue the petition, and withdraw.

Page 1970

9. It is clear from the aforesaid statement that not only complainant had compromised the matter with his wife, but both have also started living together. Thus, it cannot be denied that the complainant had condoned the acts of adultery committed by his wife. The question, therefore is, as to whether on this basis, wife’s paramour, namely the Petitioner herein, can also say that his acts are condoned as well and the complainant could not pursue the criminal complaint against him. Before answering this question, let me scan through the law on adultery in criminal jurisprudence.

10. Chapter XX of the Indian Penal Code deals with ‘Offences Relating to Marriage’. Section 497 of the IPC, with which we are concerned, makes adultery as offence. It reads as under:

Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such case the wife shall not be punishable as an abettor.

11. The cognizance of this offence can, however, be taken by the Court only upon a complaint made by some person aggrieved by the offence. This is provided in Section 198(1) of the Code of Criminal Procedure. Sub-section (2) of Section 198 Cr.P.C. provides that, for the purposes of Sub-section (1), “no person other than the husband of the woman shall be deemed to be aggrieved by any offence punishable under Section 497 or Section 498 of the Penal Code”. Therefore, the complaint can be filed only by the husband of the woman with whom the accused person had sexual intercourse as he is the only one who is made ‘aggrieved person’ by the aforesaid deeming provision.

12. Interestingly, before the Indian Penal Code was enacted under the British Rule, adultery was not a crime in India either for men or for women. This is stated in Macaulay’s Code which was the first draft of the Indian Penal Code framed in 1837. Macaulay’s argument was that in the social infrastructure that existed in those times, the secondary and economically dependent position of women was not conducive to punish adulterous men. So far as women are concerned, his opinion was that considering the social purdah among Hindus, especially among aristocratic, high-caste and affluent families, the question of adultery among women did not arise. Besides, Macaulay was convinced that since polygamy was an everyday affair at that time, the wife was socially conditioned to accept her husband’s adulterous relationship. She neither felt humiliated nor was it a culture shock for her. However, the Law Commission of India under the British rule declared adultery a crime committed only by men. In that recommendation of the Law Commission, the law on adultery was drafted in 1860 making only men as the offenders who could be punished for adultery. It did not agree with Macaulay’s stand that any punishment for adultery would be detrimental for the dependent wife and would threaten the unity of the family. The Law Commission’s stand was based on the premise that adultery struck at the very core of the family unit, eroded all close ties within the family, and all that the family as society’s Page 1971 basic social unit stood for. The exclusion of women from the category of offenders was based on the reality that women were already living in humiliating and oppressive conditions within the family.

13. The Law Commission of India in its 42nd report given in the year 1973 recommended inclusion of women as well. This recommendation was justified on the basis of changed, status and position of women. It suggested that the sexist disparity in the law on adultery be removed by bringing women within the scope of the law.

14. The constitutionality of the Section 497 IPC came under challenge before the Supreme Court in the case of Sowmithri Vishnu v. Union of India (UOI) and Anr. and 1985 Supp. (1) SCC 137. The argument was that Section 497 IPC violated Article 14 as well as Article 21 of the Constitution. Article 14 argument was based on the premise that there was an irrational classification between men and women as it unjustifiably denied to the women the right which was given to the men. Three contentions were raised in support of this argument namely : (1) Section 497 confers upon the husband the right to prosecute the adulterer but, it does not confer any right upon the wife to prosecute the woman with whom her husband has committed adultery; (2) Section 497 does not confer any right on the wife to prosecute the husband who has committed adultery with another woman; and, (3) Section 497 does not take in cases where the husband has sexual relations with an unmarried woman, with the result that husbands have, as it were, a free license under the law to have extra-marital relationship with unmarried women. It was, thus, contended that Section 497 of the IPC was flagrant instance of ‘gender discrimination’, ‘legislative despotism’ and ‘male chauvinism’, inasmuch as the provision contained in section was a kind of ‘Romantic Paternalism’ which stemmed from the assumption that women, like chattels, are the property of men. The argument on Article 21 of the Constitution proceeded on the premise that the right to life includes the right to reputation and, therefore, if the outcome of a trial is likely to affect the reputation of a person adversely, he or she might be entitled to appear and be heard in that trial. It was the submission that if the accused is held guilty of adultery, it would tarnish the reputation of the wife of the convict as well but she was not given any right to be heard.

15. These arguments did not find favor with the superior most Court and the petition was dismissed. Answering the argument on Article 14, the Court observed that by its very definition of offence of adultery contained in Section 497 of IPC, such an offence could be committed by a man and not by a woman and, therefore, could not be conferred upon the wife to prosecute the woman with whom her husband had committed adultery. The Court observed that the argument was made for recasting definition by extending the ambit of offence of adultery which could not be done as such arguments Page 1972 go to the policy of the law and not to its constitutionality, unless, while implementing the policy, any provision of the Constitution is infringed. Following observations from the said judgment are worth a quote:

Though it is true that the erring spouses have no remedy against each other within the confines of Section 497 of the Penal Code, that is to say, they cannot prosecute each other for adultery, each one has a remedy against the other under the civil law, for divorce on the ground of adultery. ‘Adulter’ under the civil law has a wider connotation than under the Penal Code. If we were to accept the argument of the Petitioner, Section 497 will be obliterated from the statute book and adulterous relations will have a more free play than now. For then, it will be possible to convict anyone of adultery at all. It is better, from the point of view of the interests of the society, that at least a limited class of adulterous relationship is punishable by law. Stability of marriage is not an ideal to be scorned.

16. The debate into the proprietary of this provision has again surfaced after the recommendation of the Justice Malimath Committee. While suggesting the reforms in criminal justice system of the country in its Report given in the year 2003, the Committee suggested suitable amendment of Section 497 of the IPC by including women also as offenders and suggesting that Section 497 IPC should be recasted as “whosoever has sexual intercourse with the spouse of any other person is guilty of adultery”. The Committee expressly stated: “The object of this Section (i.e. Section 497 of the IPC) is to preserve the sanctity of marriage. Society abhors marital infidelity. Therefore, there is no reason for not meting out similar treatment to the wife who has sexual intercourse with a man (other than her husband).” The debate, therefore, is as to whether the adulterous wife should also be included in the category of offenders and be prosecuted. National Commission for Women has, however, not only objected to this suggestion of inclusion of the wife but it has gone to the extent of recommending that the adultery should be converted from a criminal offence to a civil offence. It has, however, observed that this should be done after the national consensus on the issue. It has also, at the same time, added that Section 198 of the Cr.P.C. be amended in order to allow women to file complaints against unfaithful husbands and prosecute them for their promiscuous behavior.

17. Thus, whereas one extreme view is that not only Section 497 should remain on the statute book but its scope should be enlarged to include the woman as well who was complicit in the act of sex, the other extreme view is to totally abrogate this provision from the penal statute and make it only a civil wrong.

18. What do psychologist think about adultery? Psychology has a completely different story to tell. Psychologist Lucy Gray says that there is no single person on earth who does not have an extra-marital relationship – be it sexually or mentally. “If anybody denies it, he/she is either a hypocrite or not worth it.” In the dictionary of psychology, adultery is neither a sin nor a sacred act. It is more a matter of body than of the heart. It is first and last, a satisfaction of the sexual urge. Sexual fidelity is not the same as love. An adulterer may be as genuinely in love with his spouse as she is in love with him.

Page 1973

19. The libertarian view is also the same which advocates that governments have no entitlements to pry into the private lives of their citizens, much less regulate them. They also argued that every immoral act cannot be considered a crime because there are areas in which legal provisions and moral doctrines may not coincide and may even be in conflict. If legal and moral doctrines appear to be in conflict because principles of morality are changing, it is necessary to bring about amendments and revisions in the old legal principles to fit into changing moral doctrines.

20. Interestingly, the Committee appointed by the Government of the day to suggest the amendments in the criminal law, headed by Prof. N.R. Madhava Menon has also suggested removal of Section 497 of the IPC from the statute book. While listing adultery among the offences that should be removed from the category of criminal acts, the Madhava Menon Panel has said that by treating an adulterer as a criminal actually becomes an obstacle in any rapprochement between husband and wife, besides making the accused vulnerable to extortionist policemen. Says the draft report : “There is a universal tendency to put down all types of social conduct with the use of criminal sanctions without examining the use of possible alternative means of social control and without studying the impact of such step on the status of criminal justice in the Country.” In his paper on National Policy on Criminal Justice for India submitted with the Government of India in January, 2007 while suggesting that there should be reclassification of crimes which can be fit in four different types of criminal codes, the committee discussed ‘De-criminalization and Diversion’. The recommendation goes like this:

There is a universal tendency to put down all types of anti-social conduct with the use of criminal sanctions without examining the use of possible alternative means of social control and without studying the impact of such step on the status of criminal justice in the Country. There is a view that police is not the appropriate agency to enforce such laws which provide opportunities for corruption and harassment of innocent persons. tort action may remedy the injury and civil disabilities can deter persons from such conduct. Supreme Court has recently called for judicial impact studies before initiating legislation and desired to make provision for implementational costs on a meaningful, scientific basis. In fact, there is increasing demand among behavioral scientists to de-criminalize some of the existing offences. The National Women’s Commission reportedly asked for treating adultery as a civil offence. Another group of social activists wanted unnatural offences and attempt to commit suicide to be taken out of the Penal Code. A large number of offences spread over special and local laws are also considered fit to be treated with non-criminal sanctions. A number of such special laws should carry a ‘sun-set’ clause under which its active life be limited to a fixed period unless extended by the legislature. It is time to embrace de-criminalization as a part of national policy and seek advise of expert bodies like Law Commission to make recommendations in this regard periodically.

21. With this ongoing debate, we have yet to see as to how the Parliament reacts to it and whether Section 497 IPC is retained and offending women Page 1974 are also included thereby enlarging the scope of this section or legislature goes to the other extreme by abrogating Section 497 IPC altogether and adultery is decriminalized by treating it as a social offence rather than criminal offence as suggested by Justice Malimath Committee. As of today, however, Section 497 IPC exists on Statute Book and Courts have, therefore, to apply the same in its present form. The debate assumes significance in the present context inasmuch as the complainant has bought peace with his wife apparently on the ground that he did so to save the family ties.

22. Adultery is a ground for divorce as well. The husband is disqualified from seeking divorce in case he condones the act of adultery committed by his wife. Section 497 IPC, however, does not talk of ‘condensation’ but only ‘connivance’. Thus, where the husband of the wife, connived with the wife who committed sexual intercourse, he cannot prosecute that man. Whereas connivance would mean the involvement of the husband when the sexual intercourse was performed by another man with his wife, the `condensation’ implies pardoning, remission or forgiveness of the adulterer after the act which has the effect of releasing the injury. In that sense the condensation differs from connivance. However, in many cases the two are scarcely distinguishable since a person condones what he compromises and compromise implies condensation.

23. There are cases where before filing the complaints the husband had divorced his wife, the criminal complaints of the husband was dismissed. This course was adopted by the Supreme Court itself in the case of Sowmithri Vishnu v. Union of India (UOI) and Anr. (supra). However, in that case the husband had filed divorce on the ground of desertion and adultery and the divorce was granted only on the ground of desertion and the question of adultery was not gone into. The Supreme Court observed:

There was general agreement before us that since the Petitioner’s husband has already obtained divorce against her on the ground of desertion, no useful purpose will be served by inquiring into the allegation whether she had adulterous relationship with Dharma Ebenezer, against whom the husband has lodged a complaint under Section 497 of the Penal Code. Accordingly, we quash that complaint and direct that no further proceedings will be taken therein.

24. In Hukum Din v. Allachi (1879) P.R. No. 27, the Punjab Chief Court dismissed the husband’s complaint when it appeared that he had, after the act complained of and before filing the complaint, had divorced his wife.

25. Same course of action was adopted by the Calcutta High Court in the case of Jasimaddin Sheikh v. Ichohak Mistri (supra). Division Bench of Calcutta High Court found that evidence on record proved that Fatima, wife of the complainant, could not be convicted of the offence under Section 497 IPC. Following observation of the judgment contain the principle of law:

He could be convicted of an offence under Section 497, I.P.C., if there was no condensation on the part of the husband, and I do think that the Page 1975 circumstances of the case warrant the conclusion, that the offence, if any, had been condoned by the husband by his omission to take any steps since the last six or seven years against the Petitioner, and therefore, no conviction under Section 497, I.P.C., could be legally had in this case. See Queen v. G.R. Smith 4 W.R. 31.

What amounts to connivance or collusion on the part of the husband has been explained in several English cases. See Gipps v. Gipps II H.L. Cas. I. Even the civil remedy of the husband, viz., dissolution of marriage is gone when there has been such delay as to lead to the conclusion that the Petitioner had either connived at the adultery or was wholly indifferent to it. See F. Willams v. Williams I.L.R. 3 Cal. 688 and Holloway v. Holloway I.L.R. 5 All. 71 I do not think that the husband can at this distance of time come before a Criminal Court, and be allowed to prosecute the Petitioner successfully under Section 497, I.P.C., or Section 498, I.P.C. I accordingly recommend that the sentence and conviction be set aside.

26. However, in the present case, it is not necessary to rest the decision only on this basis. Even on the facts of this case, I feel that earlier order of the learned MM passed on 11.9.2003 dismissing the complaint was correct.

27. For this, I may revert to some of the salient facts of the case at hand. The complainant had first filed Divorce Petition against his wife on 22.10.1998. Within few months thereafter, i.e. on 6th February, 1999, complaint in question was filed under Sections 497 & 506 of IPC. By that time, complainant had not settled the matter with his wife as far as Divorce Petition under Hindu Marriage Act is concerned, which was withdrawn much thereafter i.e. on 24.11.1999. Obviously, in the Divorce Petition, the complainant had made allegations against his wife of committing acts of adultery with the petitioner herein and carnal relations between them as he wanted divorce on that ground. Since it was a petition to seek divorce on the ground of adultery, the petitioner was also imp leaded as Respondent No. 2 in the said petition.

28. Likewise, in the complaint filed on 06.02.1999, the complainant had levelled similar allegations against his wife and the petitioner, which were on the same lines as in the divorce petition. As per the complaint, the allegation is that, in the month of July, 1997, the complainant noticed some change in the attitude, behavior and conduct of his wife and that she was not taking interest towards the complainant. For a number of times, she was found missing without information to the complainant or to the children or to the father of the complainant. Complainant as well as his father inquired from her as to why she had been “going number of times out of the house and even visiting the accused frequently in the absence of the complainant”. It is also alleged that the wife of the complainant had no cogent reason to give and reply about his frequently visiting the accused. Complainant and his father found that she had been trying to avoid the questions and reply of aforesaid fact. This created doubts in his mind. It is also alleged that complainant’s wife was working in a school as a teacher. School timings were 9.00 AM to 01.00 PM. However, for a number of times, she came in late Page 1976 evening without assigning a good reason, which also caused alarm to the complainant and his other family members. He also alleged that she started neglecting both the minor children and for a number of times, complainant’s father as well as children complained about this behavior to the complainant. Complainant’s father also found that she was talking to some person “for hours together and the voice was that of a male person”.

29. It is also alleged that the complainant came to know from his father and children that the petitioner had been visiting the wife of the complainant in his absence, specially when the complainant used to be out of station and the petitioner used to remain in the bed room of the complainant with his wife for hours together and even sometimes, they used to lock the room from inside. When his wife avoided the answers to the questions put to her and even started fighting, abusing and misbehaving with the complainant, in order to get the real facts, the complainant installed a Dictaphone and a parallel line of the telephone so that the complainant could record conversation of his wife with any person. It is further alleged in the complaint that he was successful in recording the conversation of his wife with the petitioner and from this conversation, he came to know “that the accused and the wife of the complainant Smt. Sunetra Chakraborty has extra marital relations with each other and their conversation clearly establish that they had been indulging in sex with each other”.

30. It is alleged that when he confronted his wife and showed the Dictaphone and other conversation recored by him, his wife confessed that she had friendly relations with the petitioner and there was no extra marital relations and she agreed that she would not talk to the petitioner again. The complainant warned his wife and thereafter, the relation of the complainant and his wife remained cordial. However, after a couple of months, the complainant again started “smelling the repetition of the act of his wife and he started feeling that there had been again frequent visits of the accused in the house of the complainant in his absence and about the fact that the wife of the complainant was leaving the house without any information of her coming late in the evening and she was again talking for hours together on telephone with some male persons and even it was again repeatedly informed to the complainant that the accused was visiting the wife of the complainant and they were meeting with each other outside the house of the complainant.

31. He was also informed by some close friends that the petitioner and complainant’s wife were found together in Lodhi Hotel. Complainant again became alarmed and confronted his wife. Though initially, she started fighting but after some time, broke and later confessed her extra marital relations with the petitioner. She also confessed that the petitioner had allured her and on the said allurement and misrepresentation, the petitioner had committed an act of adultery number of times with her. This is, however, alleged that before this confession, the complainant was successful in recording through Dictaphone, kept mechanically and fitted with telephone instrument, on 15.10.1998 by virtue of which, it was confirmed that the accused had committed offence of adultery and there were extra marital relations between two of them. He came to know through the said Dictaphone Page 1977 that petitioner had committed act of petitioner with his wife on 10.09.1997 and 11.09.1997 when petitioner booked a room in Lodhi Hotel. He further came to know that this act was repeated on 03.10.1997 in Lodhi Hotel. It is alleged that his wife confessed about having this sexual intercourse with the petitioner on all the aforesaid three dates in Lodhi Hotel. She also confessed that besides the aforesaid acts in Lodhi Hotel, the petitioner had committed such act with her for a number of times in one of the rooms on the first floor of the house, in the absence of the complainant.

32. She also confessed that the petitioner had, for the first time, mixed some intoxicated tablet in the cold drinks and took some obscene photographs and on production of those photographs, he blackmailed the wife of the complainant by threatening her that he will display all the photographs to her relations and in order to avoid the aforesaid act of the accused, she bowed down to the threatening act of the petitioner and became his victim.

33. As mentioned above, the aforesaid allegations of sexual union between the petitioner and complainant’s wife are made at the time when the complainant had not patched up with his wife in this complaint. Though, it is alleged that as per the purported confession of his wife, first time, petitioner indulged in sexual intercourse with complainant’s wife after mixing some intoxicated tablet in the cold drink and thereafter, he forced her to do this act repeatedly as he had taken some obscene photographs of that act, on the basis of which he blackmailed here time and again. At the same time, the allegations are also to the effect that the two were having long relationship with each other; she has been going with the petitioner at various places; petitioner had been visiting the complainant’s house in the absence of complainant; they had been talking to each other for number of hours and those talks are tape-recorded also.

34. As per the complainant himself, these talks are tape-recorded. On the basis of the said recording, the complainant allegedly came to know that his wife had extra marital relations with the petitioner and “there conversation clearly establish that they had been indulging in sex with each other”. Thus he allegedly came to know of the fornication and extra martial copulation on the basis of so called tape recorded conversation. When he confronted his wife on the first occasion with the said tape-recorded conversation, she confessed that she was having only friendly relations with the petitioner and was not having extra marital relations. On the advice and intervention of parents of the complainant, she promised not to talk again with the petitioner. She did not mention that the petitioner had intoxicated her cold drink and committed the heinous act of sexual intercourse and thereafter, blackmailed her by showing the obscene photographs.

35. At this stage, though the complainant alleges that from the tape-recorded conversation, he came to know that the two were having extra marital relationship and adulterous relationship, but when his wife said that there was no such relationship and they were only friendly with each other and she promised not to talk to him again, the complainant warned her and did not proceed with the matter further. In fact, he states that for some time, his relationship with his wife remained cordial, though, after couple of months, Page 1978 he again started smelling the repetition of the act of his wife. Second time, when he again tape-recorded the conversation on Dictaphone, she revealed the alleged story of intoxicating the cold drink.

36. In this backdrop, we may now go through the statement which she made before the learned Metropolitan Magistrate at pre-summoning stage. This statement is made at the time when she and the complainant had buried their differences and the complainant again accepted her as his wife condoning the acts of adultery and resumed the matrimonial relationship. In her statement, she mentions that the petitioner asked to accompany her to Lodhi Hotel where he took her on 10 & 11 September, 1997 and 3rd October, 1997 where she was given cold drinks and some intoxication.

37. This gives an impression that everything happened in September, 1997. On the other hand, in the statement of the complainant, he started noticing the change in behavior of the his wife in the month of July, 1997 and the other allegations which are made coupled with tape-recording the conversation on Dictaphone, for the first time, show that it happened before September, 1997 though it cannot be said with certainty, as the statements are somewhat vague about the dates. Fact remains that in such a scenario, where the complainant’s wife was a willing partner in the adulterous acts or was forced to do so, could be ascertained, had the complainant produced the tape-recorded conversation. For some reason to him, he has kept back the same. There is also reference to letters written by the complainant’s wife to the petitioner though, she has now stated in her statement before the learned Metropolitan Magistrate that she was forced to write those letters. All this material is not produced on the basis of which alone the complainant could substantiate the allegation of adultery. Adverse inference, therefore, could be drawn against him.

38. When the learned Metropolitan Magistrate heard the arguments on the first occasion, he passed order dated 11.09.2003, deciding not to summon the petitioner and dismissing the complaint. He took note of the fact that the complainant had not produced the material evidence in Court and concealed the same, and, therefore, adverse presumption could be drawn even against him at that stage. The presumption which he drew was that either there was no such proof as alleged in the complaint or if it is there, it does not favor him. Following portion of the order is relevant:

Complainant has not produced material evidence in court and concealed the same so adverse presumption can be drawn even against him at this stage. It can be presumed that either no such proof as alleged in complaint is available or does not favor him. It is alleged by complainant in the complaint that he came to know from the telephonic conversations (which was recorded) taken between his wife and accused that both had indulged in sexual intercourse and accused thus committed adultery. However, no such tape recorded conversation is produced in court though available with complainant. From those telephonic conversations complainant came to know about the offence of adultery committed but due to non production of material evidence it is difficult to believe the story of the complainant based upon vague and general Page 1979 allegations. Though it is difficult to collect direct evidence of adultery but when own admission and confession of accused having committed offence in the form of tape recorded conversation is available then that would be the best evidence. Non production of the same goes against complainant.

Secondly, as per the complainant, accused booked one room in Lodhi Hotel on some particular dates such as 10 and 11 September, and 3rd October, where the alleged sexual intercourse taken place between accused and CW-1 but no record of that hotel was produced to show that infact any such room was booked. Though such type of extra marital sexual intercourse is committed in very private manner by taking all precautions to conceal but at least some circumstances should be shown by the complainant which leads to the inference that any such intercourse had taken place or any steps were taken in order to facilitate intercourse or adultery. Non production of record of the hotel to show that accused and wife of complainant when there, booked one room and in what capacity they lived and for how much period and what they described about them selves in hotel register are some of the facts, non disclosure of which is fatal to the case of complainant.

39. In his order, he also mentioned that though in the complaint, it was alleged that in the absence of complainant, petitioner used to come to his house and the petitioner and complainant’s wife would lock themselves in the bed room, the complainant neither examined his father nor children but allegedly stated that the complainant about this behavior of the petitioner and complainant’s wife. He also commented about the statement of complainant’s in the following manner:

CW-1 was a consenting party to the sexual intercourse. Her own conduct makes her also an offender or abettor. Though as per law she cannot be prosecuted or punished for offence under section 497 IPC but her statement is required to be considered very cautiously even at this stage where court has to see only prima facie case. The allegations levelled are vague and general in nature. The statement of CW-1 regarding coming to know about the adultery by complainant is run counter to the averments made in the complaint. According to CW-1 she informed her husband about sexual intercourse with accused and then telephonic conversations was recorded by their planning but according to complainant he came to know about the adultery first time when secretly conversation was recorded. Accused also started sending recorded audio cassettes but no such cassette is produced in court. The allegations levelled regarding threats to kill and defame are general and vague in nature without particular instances, date and place so cannot be relied upon.

40. In this backdrop, second argument of learned Counsel for the petitioner assumes importance. Against the aforesaid order, Revision Petition was filed and the learned ASJ, while allowing the Revision Petition, remanded the case back to the learned Metropolitan Magistrate. He observed that there were clear allegations of having sexual intercourse with the wife of the Page 1980 complainant. Learned Metropolitan Magistrate was wrongly influenced by the fact that the wife of the complainant was a consenting partner inasmuch as consent of the wife is immaterial unless the husband also has no objection and therefore, officence of adultery was clearly made out. He also observed that testimony of the complainant’s wife was starting evidence and non-production of the recorded conversation would be immaterial. I feel that the learned ASJ passed cryptic order by mentioning that only there were allegations of adultery, the prima facie case was made out. The order of the learned Metropolitan Magistrate giving reasons why he was dismissing the complaint, was not properly appreciated. The learned Metropolitan Magistrate had subsequently mentioned that he was conscious of the fact that the consent of the wife would be of no relevance but rightly pointed out that in a case like this, her testimony was to be considered with circumspection.

41. Interestingly, while setting aside the order, the learned ASJ remanded back the case for reconsideration for summoning the accused persons. However, the same learned Metropolitan Magistrate now did not reconsider the case by observing that Sessions Court had already given its finding that there were prima facie evidence against the petitioner and passed the summoning order. Order of the ASJ is dated 23rd December, 2003 and the summoning orders were passed by the learned Metropolitan Magistrate on the very next date i.e. on 24th December, 2003.

42. Petitioner had, in the meantime, challenged the order of learned ASJ by filing petition under Section 482 in this Court, which was disposed of vide order dated 13.02.2004 observing that the order of the ASJ was not on merits but only a direction to the Magistrate to reconsider the material placed before him in the complaint in accordance with law. Obviously, in view of this, order dated 24th December, 2003, though already passed, would be wrong as Magistrate was to reconsider the material placed before him in the complaint and not to go mechanically by the observations made by ASJ. This is how the order of ASJ is interpreted by this Court and on that interpretation, summoning order is clearly bad in law as Magistrate has not applied his own mind afresh.

43. In view of my aforesaid analysis, the matter need not be remanded back to the learned Metropolitan Magistrate. I am of the view that there is no sufficient material produced against the petitioner. This is coupled with the fact that the complainant has withdrawn his Divorce Petition both against his wife and the petitioner, no useful purpose would be served in continuing with these proceedings. The Summoning orders are, therefore, quashed and the complaint is dismissed.

44. There shall be, however, no orders as to costs.

Assault or criminal force to woman with intent to outrage her modesty.

Sec.354 of Indian Penal Code,1973 Assault or criminal force to woman with intent to outrage her modesty.– Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will there by outrage her modesty, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both

Section 355. Assault or criminal force with intent to dishonour person, otherwise than on grave provocation

Whoever assaults or uses criminal force to any person, intending thereby to dishonour that person, otherwise than on grave and sudden provocation given by that person, shall be punished with imprisonment for a term which may extend to two years, or with fine, or with both.

Punishment—Imprisonment for 2 years, or fine, or both—Non-Cognizable—Bailable—Triable by any Magistrate—Compounded by the person assaulted or to whom criminal force is used

When Can be a Rape.

Section 375 in The Indian Penal Code, 1860

375. Rape.– A man is said to commit” rape” who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:- First.- Against her will. Secondly.- Without her consent. Thirdly.- With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt. Fourthly.- With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married. Fifthly.- With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent. Sixthly.- With or without her consent, when she is under sixteen years of age. Explanation.- Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape. Exception.- Sexual

Sakshi vs Union Of India (Uoi) And Ors. on 26 May, 2004

Equivalent citations: AIR 2004 SC 3566, 2004 (2) ALD Cri 504

Author: G Mathur

Bench: S R Babu, G Mathur

JUDGMENT

G.P. Mathur, J.

1. This writ petition under Article 32 of the Constitution has been filed by way of public interest litigation, by Sakshi, which is an organisation to provide legal, medical, residential, psychological or any other help, assistance or charitable support for women, in particular those who are victims of any kind of sexual abuse and/or harassment, violence or any kind of atrocity or violation and is a violence intervention center. The respondents arrayed in the writ petition are (1) Union of India; (2) Ministry of Law and Justice; and (3) Commissioner of Police, New Delhi. The main reliefs claimed in the writ petition arc as under :

A) Issue a writ in the nature of a declaration or any other appropriate writ or direction declaring inter alia that “sexual intercourse” as contained in Section 375 of the Indian Penal Code shall include all forms of penetration such as penile/vaginal penetration, penile/oral penetration, penile/anal penetration, finger/vaginal and finger/anal penetration and object/vaginal penetration;

B) Consequently, issue a writ, order or direction in the nature of a direction to the respondents and its servants and agents to register all such cases found to be truly on investigation, offences falling within the broadened interpretation of “sexual intercourse” set out in prayer (A) aforesaid as offences under Section 375, 376 and 376A to 376D of the Indian Penal Code, 1860;

C) Issue such other writ order or direction as this Hon’ble Court may deem appropriate in the present facts and circumstances.

The petition is thus restricted to a declaratory relief and consequential directions.

2. It is set out in the writ petition that the petitioner has noticed with growing concern the dramatic increase of violence, in particular sexual violence against women and children as well as the implementation of the provisions of Indian Penal Code namely Sections 377, 375/376 and 354 by the respondent authorities. The existing trend of the respondent authorities has been to treat sexual violence, other than penile/vaginal penetration, as lesser offences falling under either Section 377 or 354 of the IPC and not as a sexual offence under Section 375/376 IPC. It has been found that offences such as sexual abuse of minor children and women by penetration other than penile/vaginal penetration, which would take any other form and could also be through use of objects whose impact on the victims is in no manner less than the trauma of penile/vaginal penetration as traditionally understood under Section 375/376, have been treated as offences tailing under Section 354 of the IPC as outraging the modesty of a women or under Section 377 IPC as unnatural offenses.

3. The petitioner through the present petition contends that the narrow understanding and application of rape under Section 375/376 IPC only to the cases of penile/vaginal penetration runs contrary to the existing contemporary understanding of rape as an intent to humiliate, violate and degrade a woman or child sexually and, therefore, adversely affects the sexual integrity and autonomy of women and children in violation of Article 21 of the Constitution.

4. The petitioner submits that a plain reading of Section 375 would make it apparent that the term “sexual intercourse” has not been defined and is, therefore, subject to and is capable of judicial interpretation. Further the explanation to Section 375 IPC does not in any way limit the term penetration to mean penile/vaginal penetration. The definition of the term rape as contained in the Code is extremely wide and takes within its sweep various forms of sexual offenses. Limiting the understanding of “rape” to abuse by penile/vaginal penetration only, runs contrary to the contemporary understanding of sexual abuse law and denies majority of women and children access to adequate redress in violation of Article 14 and 21 of the Constitution. Statistics and figures indicate that sexual abuse of children, particularly minor girl, children by means and manner other than penile/vaginal penetration is common and may take the form of penile/anal penetration, penile/oral penetration, finger/vaginal penetration or object/ vaginal penetration. It is submitted that by treating such forms of abuse as offenses falling under Section 354 IPC or 377 IPC, the very intent of the amendment of Section 376 IPC by incorporating Sub-section 2(f) therein is defeated. The said interpretation is also contrary to the contemporary understanding of sexual abuse and violence all over the world.

5. The petitioner submits that mere has for some time now been a growing body of feminist legal theory and jurisprudence which has clearly established rape as an experience of humiliation, degradation and violation rather than an outdated notion of penile/vaginal penetration. Restricting an understanding of rape in terms sought to be done by the respondent authorities and its agents reaffirms the view that rapists treat rape as sex and not violence and thereby condone such behavior especially when it comes to sexual abuse of children.

6. In this regard, reference is invited to the observations of a renowned expert on the issue of sexual abuse :

“……. in rape …. the intent is not merely to “take”, but to humiliate and degrade ….. Sexual assault in our day and age is hardly restricted to forced genital copulation, nor is it exclusively a male-on-female offence. Tradition and biologic opportunity have rendered vaginal rape a particular political crime with a particular political history, but the invasion may occur through the mouth or the rectum as well. And while the penis may remain the rapist’s favourite weapon, his prime instrument of vengeance…… it is not in fact his only tool. Sticks, bottles and even fingers are often substituted for the “natural” thing. And as men may invade women through other offices, so too, do they invade other men. Who is to say that the sexual humiliation suffered through forced oral or rectal penetration is a lesser violation of the personal, private inner space, a lesser injury to mind, spirit and sense of self ?” (Susan Brownmiller, Against Our Will 1986).

7. The petitioner further submits that the respondent authorities and their agents have failed to take into consideration the legislative purpose of Section 377 IPC. Reference has also been made to The Law Commission of India Report (No. 42) of 1971 pp. 281. While considering whether or not to retain Section 377 IPC, the Commission found as under :

“There are, however, a few sound reasons for retaining the existing law in India. First it cannot be disputed that homosexual acts and tendencies on the pan of one spouse may affect the married life and happiness of the other spouse, and from this point of view, making the acts punishable by law has social justification. Secondly, even assuming that acts done in private with consent do not in themselves constitute a serious evil, there is a risk involved in repealing legislation which has been in force for a long time…….. Ultimately, the answer to the question whether homosexual acts ought to be punished depends on the view one takes of the relationship of criminal law to morals. …. We are inclined to think that Indian society, by and large, disapproves of homosexuality and this disapproval is strong enough to justify it being treated as a criminal offence even where adults indulge in it in private.”

In view of the Commission’s conclusions regarding the purview of Section 377 IPC, the said section was clearly intended to punish certain forms of private sexual relations perceived as immoral. Despite the same, the petitioner submits, the respondent authorities have, without any justification, registered those cases of sexual violence which would otherwise fall within the scope and ambit of Section 375/376 IPC, as cases of moral turpitude under Section 377 IPC. It is submitted that the respondent authorities and their agents have wrongly strained the language of Section 377 IPC intended to punish “homosexual” behavior to punish more serious cases of sexual violence against women and children when the same ought to be dealt with as sexual offences within the meaning of Section 375/376 IPC in violation of Articles 14 and 21 of the Constitution of India.

8. It is submitted that Article 15(3) of the Constitution of India allows for the State to make special provision for women and children. It follows that “special provision” necessarily implies “adequate” provision. Further, that the arbitrary and narrow interpretation sought to be placed by the respondent authorities and their agents on Section 375/376 renders the effectiveness of redress under the said Sections and in particular under Section 376(2)(f) meaningless in violation of Article 15(3) of the Constitution of India. The petitioner has also referred to the U.N. Right of Child Convention ratified by the respondent No. 1 on 11^th December, 1993 as well as the U.N. Convention on the Elimination of Discrimination Against Women which was ratified in August 1993. In view of the ratification, the respondent No. 1 has created a legitimate expectation that it shall adhere to its International commitments as set out under the respective Conventions. In the present case, however, the existing interpretation of rape sought to be imposed by the respondent authorities and their agents is in complete violation of such International commitments as have been upheld by this Court.

9. By an order passed on 3.11.2000 the parties were directed to formulate issues which arise for consideration. Accordingly, the petitioner has submitted the following issues and legal propositions which require consideration by the Court :

(a) Given that modem feminist legal theory and jurisprudence look at rape as an experience of humiliation, degradation and violation rather than an outdated notion of penile/vaginal penetration, whether the term “rape” should today be understood to include not only forcible penile/vaginal penetration but all forms of forcible penetration including penile/oral penetration, penile/anal penetration, object or finger/vaginal and object or finger/anal penetration.

(b) Whether all forms of non-consensual penetration should not be subsumed under Section 373 of the Indian Penal code and the same should not be limited to penile, vaginal penetration only.

(c) In particular, given the widespread prevalence of child sexual abuse and bearing in mind the provisions of the Criminal Law (Amendment) Act, 1983 which specifically inserted Section 376(2)(f) envisaging the offence of “rape” of a girl child howsoever young below 12 years of age, whether the expression “sexual intercourse” as contained in Section 375 of the Indian Penal Code should correspondingly include all forms of penetration such as penile/vaginal penetration, penile/oral penetration, penile/anal penetration, finger/vagina and finger/anal penetration and object/vaginal penetration; and whether the expression “penetration” should not be so clarified in the Explanation to Section 375 of the Indian Penal Code.

(d) Whether a restrictive interpretation of “penetration” in the Explanation to Section 375 (rape) defeats the very purpose and intent of the provision for punishment for rape under Section 376(2)(f) “Whosoever commits rape on a woman when she is under twelve years of age.”

(e) Whether, penetration abuse of a child below the age of 12 should no longer be arbitrarily classified according to the ‘type’ of penetration (ignoring the ‘impact’ on such child) either as an “unnatural offence” under Section 377 IPC for penile/oral penetration and penile/anal penetration or otherwise as “outraging the modesty of a woman” under Section 354 for finger penetration or penetration with an inanimate object.

(f) Whether non-consensual penetration of a child under the age of 12 should continue to be considered as offences under Section 377 (“Unnatural Offences”) on par with certain forms of consensual penetration (such as consensual homosexual sex) where a consenting party can be held liable as an abettor or otherwise.

(g) Whether a purposive/teleological interpretation of “rape” under Section 375/376 requires taking into account the historical disadvantage faced by a particular group (in the present case, women and children) to show that the existing restrictive interpretation worsens that disadvantage and for that reason fails the test of equality within the meaning of Article 14 of the Constitution of India.

(h) Whether the. present narrow interpretation treating only eases of penile/vaginal penetration as rape, adversely affects the sexual integrity and autonomy of women and children in violation of Article 21 of Constitution of India.

10. Counter affidavit on behalf of respondents No. 1 and 2 has been filed by Mrs. G. Mukerjee. Director in the Ministry of Home Affairs. It is stated therein that Sections 375 and 376 have been substantially changed by the Criminal Law (Amendment) Act, 1983. The same Act has also introduced several new Sections viz. 376A, 376B, 376C and 376D IPC. These sections have bean inserted with a view to provide special/adequate provisions for women and children. The term “rape” has been clearly defined under Section 375 IPC. Penetration other than penile/vaginal penetration are unnatural sexual offences. Stringent punishments are provided for such unnatural offences under Section 377. The punishment provided under Section 377 is imprisonment for life or imprisonment of either description for a term which may extend to 10 years and shall also be liable to fine. Section 377 deals with unnatural offences and provides for a punishment as severe as that provided for rape in Section 376. Section 354 and 506 have been framed with a view to punish lesser offence of criminal assault in the form of outraging the modesty of a woman, whereas Sections 376 and 377 provide stringent punishment for sexual offences. The types of several offences as mentioned by the petitioner i.e. penile/anus penetration, penile/oral penetration, finger/anile penetration, finger/vaginal penetration or object/vaginal penetration are serious sexual offences of unnatural nature and are to be covered under Section 377 which provides stringent punishment. Therefore, the plea of petitioner that offences under Section 377 are treated as lesser offences is incorrect. It is also submitted in the counter affidavit that penetration of the vagina, anus or urethra of any person with any part of the body of another person other than penile penetration is considered to be unnatural and has to be dealt with under Section 377 IPC. Section 376(2)(f) provides stringent punishment for committing rape on a woman when she is under the age of 12 years. Child sexual abuse of any nature, other than penile penetration, is obviously unnatural and are to be dealt with under Section 377 IPC. It is further submitted that Section 354 IPC provides for punishment for assault or criminal force to woman to outrage her modesty. Unnatural sexual offences can not be brought under the ambit of this Section. Rape defined under Section 375 is penile/vaginal penetration and all other sorts of penetration are considered to be unnatural sexual offences. Section 377 provides stringent punishment for such offences. It is denied that provisions of Sections 375, 376 and 377 are violative of fundamental rights, under Articles 14, 15(3) and 21 of the Constitution of India. Sexual penetration as penile/anal penetration, finger/vaginal and finger/anal penetration and object and vaginal penetration are most unnatural forms of perverted sexual behavior for which Section 377 provides stringent punishment.

11. Ms. Meenakshi Arora, learned counsel for the petitioner has submitted that Indian Penal Code has to be interpreted in the light of the problems of present day and a purposive interpretation has to be given. She has submitted that Section 375 IPC should be interpreted in the current scenario, especially in regard to the fact that child abuse has assumed alarming proportion in recent times. Learned counsel has stressed that the words “sexual intercourse” in Section 375 IPC should be interpreted to mean all kinds of sexual penetration of any type of any orifice of the body and not the intercourse understood in the traditional sense. The words “sexual intercourse” having not been defined in the Penal Code, there is no impediment in the way of the Court to give it a wider meaning so that the various types of child abuse may come within its ambit and the conviction of an offender may be possible under Section 376 IPC, In this connection, she has referred to United Nations Convention On The Elimination Of All Forms Of Discrimination Against Women, 1979 and also Convention On The Rights Of The Child adopted by the General Assembly of the United Nations on 20^th February, 1989 and especially to Articles 17(e) and 19 thereof, which read as under :

Article 17

States Parties recognise the important function performed by the mass media and shall ensure that the child has access to information and material from a diversity of national and international sources, especially those aimed at the promotion of his or her social, spiritual and moral well-being and physical and mental health. To this end, States Parties shall —

(a) …………….. (Omitted as not relevant)

(e) Encourage the development of appropriate guidelines for the protection of the child from information and material injurious to his or her well-being, bearing in mind the provisions of Articles 13 and 18.

ARTICLE 19

1. States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical and mental violence, injury or abuse, neglect or negligent treatment maltreatment or exploitation including sexual abuse, while in the care of parent(s), legal guardian(s) or any other persons who has the care of the child.

2. Such protective measures should, as appropriate, include effective procedures for the establishment of social programmes to provide necessary support for the child and for those who have the care of the child, as well as for other forms of prevention and for identification, reporting, referral, investigation, treatment and follow-up of instances of child maltreatment described heretofore, and, as appropriate, for judicial involvement.

12. In support of her submission, learned counsel has referred to following passage of statutory interpretation by F.A.R. Bennion (Butterworths — 1984) at page 355-357 :

“While it remains law, an Act is to be treated as always speaking. In its application on any date, the language of the Act, though necessarily embedded in its own time, is nevertheless to be construed in accordance with the need to treat it as current law.

It is presumed that Parliament intends the Court to apply to an ongoing Act a construction that continuously updates its wording to allow for changes since the Act was initially framed.

In particular where, owing to developments occurring since the original passing of an enactment, a counter-mischief comes into existence or increases, it is presumed that Parliament intends the Court so to construe the enactment as to minimise the adverse effects of the counter-mischief.

The ongoing Act. In construing an ongoing Act, the interpreter is to presume that Parliament intended the Act to be applied at any future time in such a way as to give effect to the true original intention. Accordingly, the interpreter is to make allowances for any relevant changes that have occurred, since the Act’s passing, in law, social conditions, technology, the meaning of words, and other matters.

An enactment of former days is thus to be read today, in the light of dynamic processing received over the years, with such modification of the current meaning of its language as will now give effect to the original legislative intention. The reality and effect of dynamic processing provides the gradual adjustment. It is constituted by judicial interpretation, year in and year out. It also comprises processing by executive officials.”

In this connection, she has also referred to S. Gopal Reddy v. State of A.P. where the Court referred to the following words of Lord Denning in Seaford Court Estates Ltd. v. Asher (1949) 2 All ER 153 :

“…………… It would certainly save the Judges trouble if Acts of Parliament were drafted with divine prescience and perfect clarity. In the absence of it, when a detect appears a Judge cannot simply fold his hands and blame the draftsman. He must set to work on the constructive task of finding the intention of Parliament, and he must do this not only from the language of the statute, bat also from a consideration of the social conditions which gave rise to it and of the mischief which it was passed to remedy, and then he must supplement the written word so as to give ‘force and life’ to the intention of the legislature ……. A Judge should ask himself the question how, if the makers of the Act had themselves come across this ruck in the texture of it, they would have straightened it out ? He must then do as they would have done. A Judge must not alter the material of which the Act is woven, but he can and should iron out the creases.”

And held that it is a well known rule of interpretation of Statutes that the text and the context of the entire Act must be looked into while interpreting any of the expressions used in a Statute and that the Courts must look to the object which the Statute seeks to achieve while interpreting any of the provisions of the Act and a purposive approach is necessary. Accordingly, the words “at or before or after the marriage as consideration for the marriage” occurring in Section 2 of the Dowry Prohibition Act were interpreted to mean demand of dowry at the “negotiation stage” as a consideration for proposed marriage and “marriage” was held to include the “proposed marriage” that may not have taken place. Reference is also made to Directorate of Enforcement v. Deepak Mahajan and Anr. , wherein it was held that a mere mechanical interpretation of the words devoid of concept or purpose will reduce most of legislation to futility and that it is a salutary rule, well established, that the intention of the legislature must be found by reading the Statute as a whole. Accordingly, certain provisions of FERA and Customs Act were interpreted keeping in mind that the said enactments were enacted for the economic development of the country and augmentation of revenue. The Court did not accept the literal interpretation suggested by the respondent therein and held that Sub-section (1) and (2) of Section 167 Cr.P.C. are squarely applicable with regard to the production and detention of a person arrested under the provisions of Section 35 of FERA and Section 104 of Customs Act and that a Magistrate has jurisdiction under Section 167(2) Cr.P.C. to authorize detention of a person arrested by an authorised officer of the Enforcement Directorate under FERA and taken to the Magistrate in compliance of Section 35(2) of FERA.

13. Ms. Meenakshi Arora has submitted that this purposive approach is being adopted in some of other countries so that the criminals do not go unscathed on mere technicality of law. She has placed strong reliance on some decisions of House of Lords to substantiate her contentions and the most notable being R v. R (1991) 4 All ER 481 where it was held as under :

“The rule that a husband cannot be criminally liable for raping his wife if he has sexual intercourse with her without her consent no longer forms part of the law of England since a husband and wife are now to be regarded as equal partners in marriage and it is unacceptable that by marriage the wife submits herself irrevocably to sexual intercourse in all circumstances or that it is an incident of modern marriage that the wife consents to intercourse in all circumstances, including sexual intercourse obtained only by force. In Section 1(1) of the Sexual Offences (Amendment) Act, 1976, which defines rape as having ‘unlawful’ intercourse with a woman without her consent, the word ‘unlawful’ is to be treated as mere surplusage and not as meaning ‘outside marriage’, since it is clearly unlawful to have sexual intercourse with any woman without her consent.”

The other decision cited by learned counsel is Regina v. Burstow and Regina v. Ireland 1997 (4) All ER 74 where a person accused of repeated silent telephone calls accompanied on occasions by heavy breathing to women was held guilty of causing psychiatric injury amounting to bodily harm under Section 42 of Offences against the Person Act, 1861. In the course of the discussion, Lord Steyn observed that the criminal law has moved on in the light of a developing understanding of the link between the body and psychiatric injury and as a matter of current usage, the contextual interpretation of “inflict” can embrace the idea of one person inflicting psychiatric injury on another. It was further observed that the interpretation and approach should, so far as possible, be adopted which treats the ladder of offences as a coherent body of law. Learned counsel has laid emphasis on the following passage in the judgment :

“The proposition that the Victorian, legislator when enacting Sections 18, 20 and 47 of the Act 1861, would not have had in mind psychiatric illness is no doubt correct. Psychiatry was in its infancy in 1861. But the subjective intention of the draftsman is immaterial. The only relevant enquiry is as to the sense of the words in the context in which they are used. Moreover the Act of 1861 is a statute of the “always speaking” type : the statute must be interpreted in the light of the best current scientific appreciation of the link between the body and psychiatric injury.”

It has thus been contended that the words “sexual intercourse” occurring in Section 375 IPC must be given a larger meaning than as traditionally understood having regard to the monstrous proportion in which the cases of child abuse have increased in recent times. She has also referred to a decision of Constitutional Court of South Africa in the National Coalition for Gay and Lesbian Equality and Ors. v. The Minister of Home Affairs and Ors. — Case CCT 10/99 wherein it was held that Section 25(5) of the Aliens Control Act 96 of 1991, by omitting to confer on persons, who are partners in permanent same sex life partnerships, the benefits it extends to spouses, unfairly discriminates, on the grounds of their sexual orientation and marital status, against partners in such same-sex partnerships who are permanently and lawfully resident in the Republic. Such unfair discrimination limits the equality rights of such partners guaranteed to them by Section 9 of the Constitution and their right to dignity under Section 10. It was further held that it would not be an appropriate remedy to declare the whole of Section 25(5) invalid. Instead, it would be appropriate to read in, after the word “spouse” in the section, the words “or partner, in a permanent same-sex life partnership”.

14. Ms. Meenakshi Arora has also placed before the Court the judgments rendered on 10^th December, 1998 and 22^nd February, 2001 by the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991. Under Article 5 of the Statute of the International Tribunal, rape is a crime against humanity. Rape may also amount to a grave breach of the Geneva Conventions, a violation of the laws or customs of the war or an act of genocide, if the requisite elements are met and may be prosecuted accordingly. The Trial Chamber after taking note of the fact that no definition of rape can be found in international law, proceeded on the following basis :

“Thus, the Trial Chamber finds that the following may be accepted as the objective elements of rape :

(i) the sexual penetration, however slight :

(a) of the vagina or anus of the victim by the penis of the perpetrator or any other object used by the perpetrator; or

(b) of a mouth of the victim by the penis of the perpetrator;

(ii) by coercion or force or threat of force against the victim or a third person.”

In the second judgment of the Trial Chamber dated 22^nd February, 2001, the interpretation which focussed on serious violations of a sexual autonomy was accepted.

15. Shri R.N. Trivedi, learned Additional Solicitor General appearing for the respondents, has submitted that International Treaties ratified by India can be taken into account for framing guidelines in respect of enforcement of fundamental rights but only in absence of municipal laws as held in Vishaka v. State of Rajasthan and Lakshmi Kant Pandey v. Union of India . When laws are already existing, subsequent ratification of International Treaties would not render existing municipal laws ultra vires of Treaties in case of inconsistency. In such an event the State through its legislative wing can modify the law to bring it in accord with Treaty obligations. Such matters are in the realm of State policy and are, therefore, not enforceable in a Court of law. He has further submitted that in International law, ratified Treaties can be deemed interpreted in customary law unless the former are inconsistent with the domestic laws or decisions of its judicial Tribunals. The decision of the International Tribunal for the Crimes committed in the Territory of the Former Yugoslavia cannot be used for interpretation of Section 354 and 375 IPC and other provisions. Even decisions of International Court of Justice are binding only on the parties to a dispute or intervenors in view of Articles 92, 93 and 94 of the UN Charter and Articles 59 and 63 of the IJC Statutes. Learned counsel has also submitted that no writ of mandamus can be issued to the Parliament to amend any law or to bring it in accord with Treaty obligations. He has also submitted that Sections 354 and 375 IPC have been interpreted in innumerable decisions of various High Courts and also of the Supreme Court and the consistent view is that to hold a person guilty of rape, penile penetration is essential. The law on the point is similar both in England and USA. In State of Punjab v. Major Singh 1966 (Supp) SCR 266 it was held that if the hymen is ruptured by inserting a finger, it would not amount to rape. Lastly, it has been submitted that a writ petition under Article 32 of the Constitution would not lie for reversing earlier decisions of the. Court on the supposed ground that a restrictive interpretation has been given to certain provisions of a Statute.

16. In support of his submission Shri Trivedi has placed reliance on Volume 11(1) of Halsbury’s Laws of England para 514 (Butterworths –1990) wherein unlawful sexual intercourse with woman without her consent has been held to be an essential ingredient of rape. Reference has also been made to Volume 75 Corpus Juris Secundum para 10, wherein it is stated that sexual penetration of a female is a necessary element of the crime of rape, but the slightest penetration of the body of the female by the sexual organ of the male is sufficient. Learned counsel has also referred to Principles Of Public International Law by Ian Brownlie, where the learned author, after referring to some decisions of English Courts has expressed an opinion that the clear words of a Statute bind the Court even if the provisions are contrary to international law and that there is no such thing as a standard of international law extraneous to the domestic law by a Kingdom and that international law as such can confer no rights cognizable in the municipal courts. Learned counsel has also referred to Dicey and Morris on The Conflict of Laws wherein in the Chapter on the enforcement of foreign law, following Rule has been stated :

“English Courts will not enforce or recognise a right, power, capacity, disability or legal relationship arising under the law of a foreign country, if the enforcement or recognition of such right, power, capacity, disability or legal relationship would be inconsistent with the fundamental public policy of English law.”

With regard to penal law, it has been stated as under :

“The common law considers crimes as altogether local, and congnisable and punishable exclusively in the country where they are committed…. Chief Justice Marshall, in delivering the opinion of the Supreme Court, said : ‘The Courts of no country execute the penal laws of another’.”

17. This Court on 13.1.1998 referred the matter to the Law Commission of India for its opinion on the main issue raised by the petitioner, namely, whether all forms of penetration would come within the ambit of Section 375 IPC or whether any change in statutory provisions need to be made, and if so, in what respect ? The Law Commission had considered some of the matters in its 156^th Report and the relevant extracts of the recommendation made by it in the said Report, concerning the issue involved, were placed before the Court. Para 9.59 of the Report reads as under :

“9.59 Sexual-child abuse may be committed in various forms such as sexual intercourse, carnal intercourse and sexual assaults. The cases involving penile penetration into vagina are covered under Section 375 of the IPC. If there is any case of penile oral penetration and penile penetration into anus, Section 377 IPC dealing with unnatural offences, i.e., carnal intercourse against the order of nature with any man, woman or animal, adequately takes care of them. If acts such as penetration of finger or any inanimate object into vagina or anus are committed against a woman or a female child, the provisions of the proposed Section 354 IPC whereunder a more severe punishment is also prescribed can be invoked and as regards the male child, the penal provisions of the IPC concerning ‘hurt’, ‘criminal force’ or ‘assault’ as the case may be, would be attracted. A distinction has to be naturally maintained between sexual assault/use of criminal force falling under Section 354, sexual offences falling under Section 375 and unnatural offences falling under Section 377 of the Indian Penal Code. It may not be appropriate to bring unnatural offences punishable under Section 377 IPC or mere sexual assault or mere sexual use of criminal force which may attract Section 354 IPC within the ambit of ‘rape’ which is a distinct and graver offence with a definite connotation. It is needless to mention that any attempt to commit any of these offences is also punishable by virtue of Section 511 IPC. Therefore, any other or more changes regarding this law may not be necessary.”

Regarding Section 377 IPC, the Law Commission recommended that in view of the ongoing instances of sexual abuse in the country where unnatural offences is committed on a person under age of eighteen years, there should be a minimum mandatory sentence of imprisonment for a term not less than two years but may extend to seven years and fine, with a proviso that for adequate and special reasons to be recorded in the judgment, a sentence of less than two years may be imposed. The petitioner submitted the response on the recommendations of the Law Commission. On 10/18.2.2000, this Court again requested the Law Commission to consider the comments of representative organisations (viz. SAKSHI, IFSHA and AIDWA).

18. The main question which requires consideration is whether by a process of judicial interpretation the provisions of Section 375 IPC can be so altered so as to include all forms of penetration such as penile/vaginal penetration, penile/oral penetration, penile/anal penetration, finger/vagina and finger/anal penetration and object/vaginal penetration within its ambit. Section 375 uses the expression “sexual intercourse” but the said expression has not been defined. The dictionary meaning of the word “sexual intercourse” is hetrosexual intercourse involving penetration of the vagina by the penis. The Indian Penal Code was drafted by the First Indian Law Commission of which Lord Mecaulay was the President. It was presented to the Legislative Council in 1856 and was passed on October 6, 1860. The Penal Code has undergone very few changes in the last more than 140 years. Except for clause sixthly of Section 375 regarding the age of the woman (which in view of Section 10 denotes a female human being of any age) no major amendment has been made in the said provision. Sub-section (2) of Section 376 and Sections 376A to 376D were inserted by Criminal Law (Amendment) Act, 1983 but Sub-section (2) of Section 376 merely deals with special types of situations and provides for a minimum sentence of 10 years. It does not in any manner alter the definition of ‘rape’ as given in Section 375 IPC. Similarly, Section 354 which deals with assault or criminal force to woman with intent to outrage her modesty and Section 377 which deals with unnatural offences have not undergone any major amendment.

19. It is well settled principle that the intention of the Legislature is primarily to be gathered from the language used, which means that attention should be paid to what has been said as also to what has not been said. As a consequence a construction which requires for its support addition or substitution of words or which results in rejection of words as meaningless has to be avoided. It is contrary to all rules of construction to read words into an Act unless it is absolutely necessary to do so. Similarly it is wrong and dangerous to proceed by substituting some other words for words of the statute. It is equally well settled that a statute enacting an offence or imposing a penalty is strictly construed. The fact that an enactment is a penal provision is in itself a reason for hesitating before ascribing to phrases used in it a meaning broader than that they would ordinarily bear. (Principles of Statutory Interpretation by Justice G.P. Singh p.58 and 751 Ninth Edition).

20. Sections 354, 375 and 377 IPC have come up for consideration before the superior courts of the country on innumerable occasions in a period of almost one and a half century. Only sexual intercourse, namely, hetrosexual intercourse involving penetration of the vagina by the penis coupled with the explanation that penetration is sufficient to constitute the sexual intercourse necessary for the offence of rape has been held to come within the purview of Section 375 IPC. The wide definition which the petitioner wants to be given to “rape” as defined in Section 375 IPC so that the same may become an offence punishable under Section 376 IPC has neither been considered nor accepted by any Court in India so far. Prosecution of an accused for an offence under Section 376 IPC on radically enlarged meaning of Section 375 IPC as suggested by the petitioner may violate the guarantee enshrined in Article 20(1) of the Constitution which says that no person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence.

21. The decision of Constitutional Court of South Africa cited by learned counsel for the petitioner does not commend to us as the Court there treated “Gays and Lesbian in permanent same sex life partnerships” at par with “spouses” and took upon itself the task of Parliament in holding that in Section 25(5) of the Aliens Control Act, after the word “spouse”, the words “or partner in a permanent same sex life partnership” should be read. The decision of House of Lords in R. v. R. was given on its own facts which deserve notice. Here the wife had left her matrimonial home with her son on 21^st October, 1989 and went to live with her parents. She had consulted solicitors about matrimonial problems and had left a letter for the husband informing him that she intended to petition for divorce. On 23^rd October, 1989 the husband spoke to his wife on telephone indicating that it was his intention also to seek divorce. In the night of 12^th November, 1989 the husband forced his way into the house of his wife’s parents, who were out at that time and attempted to have sexual intercourse with her against her will. In the course of doing so he assaulted her by squeezing her neck with both hands. On the facts of the case the conviction of the husband may not be illegal. It is very doubtful whether the principle laid down can be of universal application. In Regina v. Burstow psychiatric injury was held to be bodily harm under Section 20, having regard to the meaning of the word in the usage of the present day. In our opinion the judgment of the International Tribunal can have no application here as Tribunal itself noted that no definition of rape can be found in International law and it was dealing with prosecution of persons responsible for serious violations of International Humanitarian Law committed in the Territory of former Yugoslavia. The judgment is not at all concerned with interpretation of any provision of domestic law in peace time conditions. The decisions cited by the learned counsel for the petitioner, therefore, do not persuade us to enlarge the definition of rape as given in Section 375 IPC which has been consistently so understood for over a century through out the country.

22. It may be noted that ours is a vast and big country of over 100 crore people. Normally, the first reaction of a victim of crime is to report the incident at the police station and it is the police personnel who register a case under the appropriate Sections of the Penal Code. Such police personnel are invariably not highly educated people but they have studied the basic provisions of the Indian Penal Code and after registering the case under the appropriate sections, further action is taken by them as provided in Code of Criminal Procedure. Indian Penal Code is a part of the curriculum in the law degree and it is the existing definition of “rape” as contained in Section 375 IPC which is taught to every student of law. A criminal case is initially handled by a Magistrate and thereafter such cases as are exclusively triable by Court of Session are committed the Court of Session. The entire legal fraternity of India, lawyers or Judges, have the definition as contained in Section 375 IPC engrained in their mind and the cases are decided on the said basis. The first and foremost requirement in criminal law is that it should be absolutely certain and clear. An exercise to alter the definition of rape, as contained in Section 375 IPC, by a process of judicial interpretation, and that too when there is no ambiguity in the provisions of the enactment is bound to result in good deal of chaos and confusion, and will not be in the interest of society at large.

23. Stare decisis is a well known doctrine in legal jurisprudence. The doctrine of stare decisis, meaning to stand by decided cases, rests upon the principle that law by which men are governed should be fixed, definite and known, and that, when the law is declared by court of competent jurisdiction authorised to construe if, such declaration, in absence of palpable mistake or error, is itself evidence of the law until changed by competent authority. It requires that rules of law when clearly announced and established by a Court of last resort should not be lightly disregarded and set aside but should be adhered to and followed. What it precludes is that where a principle of law has become established by a series of decisions, it is binding on the Courts and should be followed in similar cases. It is a wholesome doctrine which gives certainty to law and guides the people to mould their affairs in future.

24. In Mishri Lal v. Dhierendra Nath importance of this doctrine was emphasised for the purpose of avoiding uncertainty and confusion and paras 14, 15, 16 and 21 of the Reports read as under :

“14. This Court in Muktul v. Manbhari explained

the scope of the doctrine of stare decisis with reference to Haralsbury’s Laws of England and Corpus Juris Secundum in the following manner:

“The principle of stare decisis is thus stated in Halsbury’s Laws of England, 2^nd Edn.:

‘Apart from any question as to the courts being of coordinate jurisdiction, a decision which has been followed for a long period of time, and has been acted upon by persons in the formation of contracts or in the disposition of their property, or in the general conduct of affairs, or in legal procedure or in other ways, will generally be followed by courts of higher authority than the court establishing the rule, even though the court before whom the matter arises afterwards might not have given the same decision had the question come before it originally. But the Supreme Appellate Court will not shrink from overruling a decision, or series of decisions, which establish a doctrine plainly outside the statute and outside the common law, when no title and no contract will be shaken, no persons can complain, and no general course of dealing be altered by the remedy of a mistake.”

The same doctrine is thus explained in Corpus Juris Secundum –

‘Under the stare decisis rule, a principle of law which has become settled by a series of decisions generally is binding on the courts and should be followed in similar cases. This rule is based on expediency and public policy, and, although generally it should be strictly adhered to by the courts, it is not universally applicable.'”

15. Be it noted however that Corpus Juris Secundum adds a rider that

“previous decisions should not be followed to the extent that grievous wrong may result; and, accordingly, the courts ordinarily will not adhere to a rule of principle established by previous decisions which they are convinced is erroneous. The rule of stare decisis is not so imperative or inflexible as to preclude a departure therefrom in any case, but its application must be determined in each case by the discretion of the court, and previous decisions should not be followed to the extent that error may be perpetuated and grievous wrong may result.”

16. The statement though deserves serious consideration in the event of a definite finding as to the perpetration of a grave wrong but that by itself does not denude me time-tested doctrine of stare decisis of its efficacy. Taking recourse to the doctrine would be an imperative necessity to avoid uncertainty and contusion. The basic feature of law is its certainty and in the event of there being uncertainty as regards the state of law – the society would be in utter confusion the resultant effect of which would bring about a situation of chaos – a situation which ought always to be avoided.

21. In this context reference may also be made to two English decisions:

(a) in Admiralty Commrs. v. Valverda (Owners) 1938 AC 173 (AC at p. 194) wherein the House of Lords observed that even long established conveyancing practice, although not as authoritative as a judicial decision, will cause the House of Lords to hesitate before declaring it wrong, and

(b) in Button v. Director of Public Prosecution 1966 AC 591 the House of Lords observed :

“In Corpus Juris Secundum, a contemporary statement of American Law, the stare decisis rule has been stated to be a principle Of law which has become settled by a series of decisions generally, is binding on the courts and should be followed in similar cases. It has been stated that this rule is based on expediency and public policy and should be strictly adhered to by the courts. Under this rule courts are bound to follow the common law as it has been judicially declared in previously adjudicated cases and rules of substantive law should be reasonably interpreted and administered. This rule has to preserve the harmony and stability of the law and to make as steadfast as possible judicially declared principles affecting the rights of property, it being indispensable to the due administration of justice, especially by a court of last resort, that a question once deliberately examined and declared should be considered as settled and closed to further argument. It is a salutary rule, entitled to great weight and ordinarily should be strictly adhered to by the courts. The courts are slow to interfere with the principle announced by the decision, and it may be upheld even though they would decide otherwise were the question a new one, or equitable considerations might suggest, a different result and although it has been erroneously applied in a particular case. The rule represents an element of continuity in law and is rooted in the psychologic need to satisfy reasonable expectations, but it is a principle of policy and not a mechanical formula of adherence to the latest decision however recent and questionable when such adherence involves collision with a prior doctrine more embracing in its scope, intrinsically sounder and verified by experience.”

25. It may be noticed that on July 26, 1966, the House of Lords made a departure from its past practice when a statement was made to the following effect:

“Their lordships regard the use of precedent as an indispensable foundation upon which to decide what is the law and its application to individual cases. It provides at least some degree of certainty upon which individuals can rely in the conduct of their affairs, as well as a basis for orderly development of legal rules.

Their lordships nevertheless recognise that too rigid adherence to precedent may lead to injustice in a particular case and also unduly restrict the proper development of the law. They propose therefore to modify their present practice and, while treating former decisions of this House as normally binding, to depart from a previous decision when it appears right to do so.

In this connection they will boar in mind the danger of disturbing retrospectively the basis on which contracts, settlements of property and fiscal arrangements have been entered into and also the especial need for certainty as to the criminal law.

This announcement is not intended to affect the use of precedent elsewhere than in this House.”

26. While making the above statement a rule of caution was sounded that while departing from a previous decision when it appears right to do so, the especial need for certainty as to criminal law shall be borne in mind. There is absolutely no doubt or confusion regarding the interpretation of provisions of Section 375 IPC and the law is very well settled. The inquiry before the Courts relate only to the factual aspect of the matter which depends upon the evidence available on the record and not on the legal aspect. Accepting the contention of the writ petitioner and giving a wider meaning to Section 375 IPC will lead to a serious confusion in the minds of prosecuting agency and the Courts which instead of achieving the object of expeditiously bringing a criminal to book may unnecessarily prolong the legal proceedings and would have an adverse impact on the society as a whole. We are, therefore, of the opinion that it will not be in the larger interest of the State or the people to alter the definition of “rape” as contained in Section 375 IPC by a process of judicial interpretation as is sought to be done by means of the present writ petition.

27. The other aspect which has been highlighted and needs consideration relates to providing protection to a victim of sexual abuse at the time of recording his statement in court. The main suggestions made by the petitioner are for incorporating special provisions in child sexual abuse cases to the following effect:

(i) permitting use of a videotaped interview of the child’s statement by the judge (in the presence of a child support person),

(ii) allow a child to testify via closed circuit television or from behind a screen to obtain a full and candid account of the acts complained of.

(iii) The cross examination of a minor should only be carried out by the judge based on written questions submitted by the defense upon perusal of the testimony of the minor

(iv) Whenever a child is required to give testimony, sufficient breaks should be given as and when required by the child.

28. The Law Commission, in its response, did not accept the said request in view of Section 273 Cr.P.C. as in its opinion the principle of the said Section which is founded upon natural justice, cannot be done away in trials and inquiries concerning sexual offences. The Commission, however, observed that in an appropriate case it may be open to the prosecution to request the Court to provide a screen in such a manner that the victim does not see the accused while at the same time provide an opportunity to the accused to listen to the testimony of the victim and give appropriate instructions to his counsel for an effective cross-examination. The Law Commission suggested that with a view to allay any apprehensions on this score, a proviso can be placed above the Explanation to Section 273 of the Criminal Procedure Code to the following effect: “Provided that where the evidence of a person below sixteen years who is alleged to have been subjected to sexual assault or any other sexual offence, is to be recorded, the Court may, take appropriate measures to ensure that such person is not confronted by the accused while at the same time ensuring the right of cross-examination of the accused.”.

29. Ms. Meenakshi Arora has referred to a decision of the Canadian Supreme Court in Her Majesty The Queen, Appellant v. D.O.L., Respondent and the Attorney General of Canada, etc. (1993) 4 SCR 419, wherein the constitutional validity of Section 715.1 of the Criminal Code was examined. This section provides that in any proceeding relating to certain sexual offences in which the complainant was under age of eighteen years at the time the offence is alleged to have been committed, a videotape made within a reasonable time after the alleged offence in which the complainant describes the act complained of, is admissible in evidence, if the complainant while testifying adopts the contents of the videotape. The Court of Appeal had declared Section 715.1 unconstitutional on the ground that the same contravened Sections 7 and 11(d) of the Canadian Charter of Rights and Freedoms and could not be sustained under Section 1. The Supreme Court took note of some glaring features in such type of cases viz. the innate power imbalance which exists between abuser and the abused child; a failure to recognise that the occurrence of child sexual abuse is one intertwined with the sexual abuse of all women, regardless of age; and that the Court cannot disregard the propensity of victims of sexual abuse to fail to report the abuse in order to conceal their plight from institutions without the criminal justice system which hold stereotypical and biased views about the victimisation of women. The Court accordingly held that the procedures set out in Section 715.1 are designed to diminish the stress and trauma suffered by child complainants as a byproduct of their role in the criminal justice system. The “system induced trauma” often ultimately serves to re-victimise the young complainant. The Section was intended to preserve the evidence of the child and to remove the need for them to repeat their story many times. It is often repetition of the story that results in the infliction of trauma and stress upon a child who is made to believe that she is not being believed and that her experiences are not validated. The benefits such a provision would have in limiting the strain imposed on child witness who arc required to provide detailed testimony about confusing, embarrassing and frightful incidents of abuse in an intimidating, confrontational and often hostile court room atmosphere. Another advantage afforded by the Section is the opportunity for the child to answer delicate questions about the abuse in a more controlled, less stressful and less hostile environment, a factor which according to social science research, may drastically increase the likelihood of eliciting the truth about the events at hand. The videotape testimony enables the Court to hear a more accurate account of what the child was saying about the incident at the time it first came to light and the videotape of an early interview if used in evidence can supplement the evidence of a child who is inarticulate or forgetful at the trial. The Section also acts to remove the pressure placed on a child victim of sexual assault when the attainment of “truth” depends entirely on her ability to control her fear, her shame and the horror of being face to face with the accused when she must describe her abuse in a compelling and coherent manner. The Court also observed that the rules of evidence have not been constitutionalised into unaltered principles of fundamental justice. Neither should they be interpreted in a restrictive manner which may essentially defeat their purpose of seeking truth and justice. Rules of evidence, as much as the law itself, are not cast in stone and will evolve with time. The Court accordingly reversed the judgment of Court of Appeal and upheld the constitutionality of Section 715.1.

30. We will briefly refer to the statutory provisions governing the situation. Section 273 Cr.P.C. lays down that except as otherwise expressly provided, all evidence taken in the course of the trial or other proceedings shall be taken in the presence of the accused, or when his personal attendance is dispensed with, in the presence of his pleader. Sub-section (1) of Section 327 Cr.P.C. lays down that any Criminal Court enquiring into or trying any offence shall be deemed to be open Court to which the public generally may have access, so, far as the same can conveniently contain them. Sub-section (2) of the same Sections says that notwithstanding anything contained in Sub-section (1) the inquiry into the trial of rape or an offence under Section 376, Section 376A, Section 376B, Section 376C or Section 376D of the Indian Penal Code shall be conducted in camera. Under the proviso to this sub-section the Presiding Judge may, if he thinks fit, or on an application made by either of the parties, allow any particular person to have access to, or be or remain in, the room or building used by the court. It is rather surprising that the legislature while incorporating Sub-section (2) to Section 327 by amending Act 43 of 1983 failed to take note of offences under Section 354 and 377 IPC and omitted to mention the aforesaid provisions. Deposition of the victims of offences under Section 354 and 377 IPC can at times be very embarrassing to them.

31. The whole inquiry before a Court being to elicit the truth, it is absolutely necessary that the victim or the witnesses are able to depose about the entire incident in a free atmosphere without any embarrassment. Section 273 Cr.P.C. merely requires the evidence to be taken in the presence of the accused. The Section, however, does not say that the evidence should be recorded in such a manner that the accused should have full view of the victim or the witnesses. Recording of evidence by way of video conferencing vis-a-vis Section 273 Cr.P.C. has been held to be permissible in a recent decision of this Court in State of Maharashtra v. Dr. Praful B Desai . There is major difference between substantive provisions defining crimes and providing punishment for the same and procedural enactment laying down the procedure of trial of such offences. Rules of procedure are hand-maiden of justice and are meant to advance and not to obstruct the cause of justice. It is, therefore, permissible for the Court to expand or enlarge the meanings of such provisions in order to elicit the truth and do justice with the parties.

32. The mere sight of the accused may induce an element of extreme fear in the mind of the victim or the witnesses or can put them in a state of shock. In such a situation he or she may not be able to give full details of the incident which may result in miscarriage of justice. Therefore, a screen or some such arrangement can be made where the victim or witnesses do not have to undergo the trauma of seeing the body or the face of the accused. Often the questions put in cross-examination are purposely designed to embarrass or confuse the victims of rape and child abuse. The object is that out of the feeling of shame or embarrassment, the victim may not speak out or give details of certain acts committed by the accused. It will, therefore, be better if the questions to be put by the accused in cross-examination are given in writing to the Presiding Officer of the Court, who may put the same to the victim or witnesses in a language which is not embarrassing. There can hardly be any objection to the other suggestion given by the petitioner that whenever a child or victim of rape is required to give testimony, sufficient breaks should be given as and when required. The provisions of Sub-section (2) of Section 327 Cr.P.C. should also apply in inquiry or trial of offences under Section 354 and 377 IPC.

33. In State of Punjab v. Gurmit Singh this Court had highlighted the importance of provisions of Section 327(2) and (3) Cr.P.C. and a direction was issued not to ignore the mandate of the aforesaid provisions and to hold the trial of rape cases in camera. It was also pointed out that such a trial in camera would enable the victim of crime to be a little comfortable and answer the questions with greater ease and thereby improve the quality of evidence of a prosecutrix because there she would not be so hesitant or bashful to depose frankly as she may be in an open court, under the gaze of the public. It was further directed that as far as possible trial of such cases may be conducted by lady Judges wherever available so that the prosecutrix can make a statement with greater ease and assist the court to properly discharge their duties, without allowing the truth to be sacrificed at the altar of rigid technicalities.

34. The writ petition is accordingly disposed of with the following directions:

(1) The provisions of Sub-section (2) of Section 327 Cr.P.C. shall, in addition to the offences mentioned in the sub-section, would also apply in inquiry or trial of offences under Sections 354 and 377 IPC.

(2) In holding trial of child sex abuse or rape:

(i) a screen or some such arrangements may be made where the victim or witnesses (who may be equally vulnerable like the victim) do not see the body or face of the accused;

(ii) the questions put in cross-examination on behalf of the accused, in so far as they relate directly to the incident should be given in writing to the Presiding Officer of the Court who may put them to the victim or witnesses in a language which is clear and is not embarrassing;

(iii) the victim of child abuse or rape, while giving testimony in court, should be allowed sufficient breaks as and when required.

These directions are in addition to those given in State of Punjab v. Gurmit Singh.

35. The suggestions made by the petitioners will advance the cause of justice and are in the larger interest of society. The cases of child abuse and rape are increasing at alarming speed and appropriate legislation in this regard is, therefore, urgently required. We hope and trust that the Parliament will give serious attention to the points highlighted by the petitioner and make appropriate legislation with all the promptness which it deserves.

36. Before parting with the case, we must place it on record that Ms. Meenakshi Arora put in lot of efforts and hard labour in placing the relevant material before the Court and argued the matter with commendable ability.

G.P. Mathur, J.

37. For the reasons given in WP(Crl.) No. 33 of 1997 decided today, Special Leave Petitions are dismissed.

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Delhi Gang rape Case News:

Sources :

http://economictimes.indiatimes.com/news/politics-and-nation/delhi-gang-rape-case-draws-attention-of-american-media/articleshow/17729895.cms

2.The Times of India.

http://timesofindia.indiatimes.com/city/delhi/Delhi-gang-rape-case-Police-drive-away-protesters-from-India-Gate/articleshow/17731634.cms?

3.The NDTV

http://www.ndtv.com/article/cities/delhi-gang-rape-case-what-happened-that-night-308689

4.The Hindustan Times.

http://www.hindustantimes.com/India-news/NewDelhi/Delhi-gangrape-case-ex-CJI-to-constitute-CoI/Article1-979819.aspx

Section 376A. Intercourse by a man with his wife during separation:

Section 376A. Intercourse by a man with his wife during separation.—Whoever has sexual intercourse with his own wife, who is living separately from him under a decree of separation or under any custom or usage without her consent shall be punished with imprisonment of either description for a term which may extend to two years and shall also be liable to fine.

Rape Case in India:

Section 376 in The Indian Penal Code, 1860

Punishment for rape.-

(1) Whoever, except in the cases provided for by sub- section (2), commits rape shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine unless the woman raped is his own wife and is not under twelve years of age, in which case, he shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both:

Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years.

(2) Whoever,-

(a) being a police officer commits rape-

(i) within the limits of the police station to which he is appointed; or

(ii) in the premises of any station house whether or not situated in the police station to which he is appointed; or

(iii) on a woman in his custody or in the custody of a police officer subordinate to him; or

(b) being a public servant, takes advantage of his official position and commits rape on a woman in his custody as such public servant or in the custody of a public servant subordinate to him; or

(c) being on the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force or of a women’ s or children’ s institution takes advantage of his official position and commits rape on any inmate of such jail, remand home, place or institution; or

(d) being on the management or on the staff of a hospital, takes advantage of his official position and commits rape on a woman in that hospital; or

(e) commits rape on a woman knowing her to be pregnant; or

(f) commits rape on a woman when she is under twelve years of age; or

(g) commits gang rape, shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine: Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term of less than ten years. Explanation 1.- Where a women’ s is raped by one or more in a group of persons acting in furtherance of their common intention, each of the persons shall be deemed to have committed gang rape within the meaning of this sub- section. Explanation 2.-” women’ s or children’ s institution” means an institution, whether called and orphanage or a home for neglected women or children or a widows’ home or by any other name, which is established and maintained for the reception and care of women or children. Explanation 3.-” hospital” means the precincts of the hospital and includes the precincts of any institution for the reception and treatment of persons during convalescence or of persons requiring medical attention or rehabilitation.

Punishment for gang rape in India:

Central Government Act Section 376(2)(g) in The Indian Penal Code, 1860 (g) commits gang rape, shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine: Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term of less than ten years. Explanation 1.- Where a women’ s is raped by one or more in a group of persons acting in furtherance of their common intention, each of the persons shall be deemed to have committed gang rape within the meaning of this sub- section. Explanation 2.-” women’ s or children’ s institution” means an institution, whether called and orphanage or a home for neglected women or children or a widows’ home or by any other name, which is established and maintained for the reception and care of women or children.