The Curious Case of Varinder Kumar
By Vipin Narayan, Advocate, HC
19/06/2020The Curious Case of Varinder Kumar
(By Vipin Narayan, Advocate, High Court of Kerala)
A Three Judge Bench of the Hon’ble Supreme Court in Mohanlal v. State of Punjab (2018 (3) KLT 852 (SC)) made the following declaration of law;
“The right of the accused to a fair investigation and fair trial guaranteed under Article 21 of the Constitution will stand negated in that event, with arbitrary and uncanalised powers vested with the police in matters relating to the NDPS Act and similar laws carrying a reverse burden of proof”.
“In view of the conflicting opinions expressed by different two Judge Benchesof this Court, the importance of a fair investigation from the point of view of an accused as a guaranteed constitutional right under Article 21 of the Constitution of India, it is considered necessary that the law in this regard be laid down with certainty……….
….. It is therefore held that a fair investigation, which is but the very foundation of fair trial, necessarily postulates that the informant and the investigator must not be the same person. Justice must not only be done, but must appear to be done also. Any possibility of bias or a predetermined conclusion has to be excluded. This requirement is all the more imperative in laws carrying a reverse burden of proof………………
….The prosecution is held to be vitiated because of the constitutional guarantee of a fair investigation.”
The judgment and the conclusions made therein was based on Article 21 which is the most sacrosanct article contained in the Constitution of India. Strangely, the Hon’ble Supreme Court within a span of 5 months of ‘Mohanlal’ passed a judgement in Varinder Kumar v. State of H.P.(same author) 2019 (1) KLT 615 (SC),wherein it was held that the law laid down in ‘Mohanlal’ has only prospective application and it does not apply to pending prosecutions, trials and appeals prior to ‘Mohanlal’. A reading of ‘Varinder Kumar’, would show that the Supreme Court was really concerned and worried by the fact that ‘Mohanlal’ has become a “spring board” for acquittals. The judgment in ‘Varinder Kumar’ raises serious questions about prospective overruling in criminal cases and much more serious question of restricting the applicability of Article 21 of the Constitution of India.
Prospective Application of Law
The principle of prospective overruling borrowed from the American jurisprudence,is a tool used by the Courts to save settled issues and to prevent their reopening thereby avoiding uncertainty and reducing further proceedings/litigations. The rationale behind said principle is that cases which have attained finality should not be disturbed because the overturning of the decision is bound to cause hardship to those who had faithfully followed and trusted the earlier decision. In Golak Nath(1967 KLT OnLine 1230 (SC) = AIR 1967 SC 1643), the Supreme Court expounded the principle of prospective overruling for the first time and hereafter the principle was applied by the Supreme Court in several other cases. The reading of the cases where prospective overruling was adopted, will show that it was only when the Court was faced with a difficult situation or that the facts were such that setting aside what had happened earlier would create very unpleasant situation or utmost hardship, the Court had ventured to do the unusual. Prospective overruling or prospective application of law is not the rule or convention. There was no jurisprudential basis for applying the doctrine of prospective overruling in the case of ‘Mohanlal’.The reliance placed on Sonu(2017 (3) KLT OnLine 2062 (SC) = (2017) 8 SCC 570)is farfetched. In Sonu, the Court in fact did not apply prospective overruling. In Harsh Dhingracase(2001 (3) KLT OnLine 1010 (SC) = (2001) 9 SCC 550),the case was about the allotment of land and the reason for applying prospective overruling is quite evident from the judgment itself.
A reading of ‘Varinder Kumar’ would reveal that there was no such situation or occasion to justify prospective application theory. The only situation that was present discernible from the judgment was that the Court was worried about cases ending in acquittal if ‘Mohanlal’ were to be applied to past and pending investigations. But really, the question is whether the Supreme Court should worry if a case ends in acquittal for the reason that the constitutional guarantee of a fair investigation and fair trial guaranteed under Art.21 of the Constitution of India was violated.
Extinguishment of Article 21 to the accused prior to Mohanlal
By stating that the law laid down in ‘Mohanlal’ has only prospective application and it does not apply to pending prosecutions, trials and appeals prior to ‘Mohanlal’, the Supreme Court has obliterated the fundamental right of the accused guaranteed under Art.21 of the Constitution of India by curtailing its application to past and pending investigations. Looking at the law so far settled, it seems to be undoable. The law settled by the Supreme Court has been unsettled by it by denying the law to those accused persons against whom investigations were conducted in blatant violation of the law as ‘Varinder Kumar’ has been confined only to future investigations. The Supreme Court in ‘Varinder Kumar’ has curtailed the constitutional guarantee of a fair investigation/fair trial under Art.21 of the Constitution,available to an accused in cases prior to ‘Mohanlal’. It means that the accused persons who stands on the same footing as Mohanlal are denied the benefit of the judgment in ‘Mohanlal’ due to the volte-facemade in ‘Varinder Kumar’. It is worth remembering that, it was the Supreme Court which ruled that a citizen cannot waive his fundamental rights which are inseparable and inalienable (Basheshar Nath, AIR 1959 SC 149).
The ratio in ‘Varinder Kumar’ denying the constitutional guarantee to an accused similarly placed as Mohanlal would undoubtedly be an infraction of the “equality and equal protection clause” enshrined under Article 14 of the Constitution of India. The Supreme Court records in paragraph 15 of ‘Varinder Kumar’ that
“The facts in the present case are equally telling with regard to the accused…
There is history of convictions of the appellant also”.
It is a strange understanding that a person with a previous conviction will not have the constitutional guarantee of fair investigation/fair trial. The Hon’ble Supreme Court in Kashmira Singh v. State of M.P. (1952 KLT OnLine 804 (SC) = AIR 1952 SC 159), had cautioned itself about being impartial and dispassionate about the alleged facts of the case and to decide the case only on the evidence available. It was observed:
“The murder was a particularly cruel and revolting one and for that reason it will be necessary to examine the evidence with more than ordinary care lest the shocking nature of the crime can induce an instinctive reaction against a dispassionate judicial scrutiny of the facts and law.”
Acquittal - Not a Failure of System
Acquittal in terms of Section 232 Cr.P.C. would mean that there is no evidence to convict the accused. One need to understand that an acquittal is not a failure of the system. Even where the system had in fact worked to its best, the accused may be acquitted by a Court on the ground of lack of evidence to record a conviction. The acquittal of an accused does invite public outcry and a lot of commotion. It is more so in cases where there is undesirable media attention. Trial by media putting pressure on the Court is creating havoc now-a-days. The higher courts have evolved principles of law based on fair trial which is duly recognized as a right enshrined under Art. 21 of the Constitution. Of course, unmerited acquittals should be a concern of the Supreme Court or the society at large. An acquittal based on infringement of fair investigation/fair trial in violation of Art.21 of the Constitution should never worry the Supreme Court, it being the ultimate protector and guardian of the fundamental rights.
In the journey set forth to avoid acquittals “spring boarding” from ‘Mohanlal’, the Supreme Court has, in fact, created a hard case in the interpretation of the law and of the Constitution. Justice should be impersonal and impartial both as a social and legal phenomenon. Judgments should not be guided only by emotion or to settle the so called fervor created. The judgment of the highest Constitutional Court should be in conformity with the constitutional provisions and should not pave the way for violating the fundamental rights of any person. By attempting to clear the difficulty caused due to ‘Mohanlal’, the Supreme Court through ‘Varinder Kumar’ has set a bitter precedent. Hope the ratio is revisited at the earliest ensuring equal justice to all accused persons who are similarly placed as Mohanlal.
E-Way Justice – A Conundrum Amidst Covid-19 ?!
By Shibili Naha, Advocate, HC
19/06/2020E-Way Justice – A Conundrum Amidst Covid-19 ?!
(By Shibili Naha, Advocate, High Court of Kerala, Ernakulam)
Being adept and being able to adapt is sine qua non for any innovation or progressive reform. But the haphazard process would be counterproductive. Law and Justice to be effective are to be real and substantive. “Only Virtual” would literally mean injustice.
The focus ought to be to save time,avoid cumbersome procedures and to ensure proper and timely dispensation of justice.
Devicing it as a tool of curtailing one’s expression and depriving access to the polity would be oppressive and arbitrary.
The ‘E’ mantra has to be enabling and not eliminating. The covid pandemic outbreak has taught us lessons worth a life time. Social Distancing was the basic mantra to keep the virus at bay. But this is only a temporary protocol. There can be no social distancing for justice delivery in letter and spirit. Lawyers and the Judges are in fact social engineers making their endeavours beyond the cyber spectrum. Artificial intelligence doesn’t cater to the dispensation of justice beyond the letters of law. It certainly must encompass the innate principles of equity,good conscience and natural justice. It’s law for man and not man for law. I am not oblivious of the fact that technology can do wonders. But I am equally mindful of the disasters as well. Therefore, the court rooms here are to stay,for it is essentially meant for those avowed objects.
Lest it should mark the death knell of an age old system and extinguish a species in itsef.That’s all,my Lords.
The Saga of Corruption in Kerala Advocates Welfare Fund
By R. Rajendran, Advocate, National Secretary, Bharatheeya Abhibhashaka Parishad
12/06/2020The Saga of Corruption in Kerala Advocates Welfare Fund
(By R.Rajendran, Advocate, National Secretary, Bharatheeya Abhibhashaka Parishad)
“It is also to bear in mind that the amount from the Welfare Fund is a solace to the Advocates and their family in the ‘Hey day’ in life and it shall be released as and when applied for it by the beneficiary. Therefore, if any fraudulent acts like the one at hand is permitted, it will cause fetter to the rights of the advocates”opined by the Division Bench of Kerala High Court on 20.05.2020 headed by The Honourable Chief Justice Mr.S. Manikumar along with Mr.Justice Shaji P.Chaly, while dismissing a Writ Appeal (2020 (3) KLT 501) filed by Mr.K.N.Anil Kumar, a sitting member of Kerala Bar Council. Mr.Anil Kumar filed W.A.No.422 of 2020 challenging the dismissal order of Single Bench in W.P.(C) No.34256 of 2018 (2020 (2) KLT 436 - Mr.Justice P.B.Suresh Kumar) which was filed by him challenging the decision of Bar Council of India to conduct enquiry into the irregularities committed by the Trustee Committee members of the Kerala Advocates Welfare Fund. The Division Bench clearly observed and delivered the judgment “hoping that a full-fledged enquiry would be conducted by the Committee into the entire affairs of the Welfare Fund Trustee Committee with respect to the pilferage of `7 crores, which is an admitted fact by all concerned.”
The background of these petitions are that there arose a serious financial corruption charge in Kerala Advocates Welfare Fund wherein it is alleged that about 10 crore rupees were looted by the concerned from the fund. By that time The Bar Council of India formed a 4 member committee, to conduct enquiry into the matter, headed by Justice (Rtd.)
Mr.Deepak K.Trivedi, retired Judge from Gujarat High Court. The other members are Justice B.C.Kandpal, a retired Judge of Utharkhand High Court, Mr.Vijay Bhatt and Mr.Bhoj Chander Thakur, members of BCI. The petitioner was of the opinion that the Bar Council of India has no power or right to appoint such a committee to enquire the matter and hence he approached the High Court, but the Single and Division Bench dismissed his plea and permitted the Committee to proceed further. Mr.Anil Kumar was a member of the Trustee Committee during the alleged corruption period. The office bearers of the Bar Council were not ready to co-operate with Justice Deepak K.Trivedi committee and did not hand over the documents related to the corruption.
The financial misappropriation which took place in the fund is a serious issue and the amount which is looted from the fund is entitled to its members. Now the persons who are and who were in charges of welfare fund wants to escape themselves and to save somebody, who are the real culprits of big corruption, by putting a scapegoat in to the stage by name Chandran. No prudent man can believe that an accountant alone can misappropriate a huge amount to the tune of Rupees 10 crore from a statutory body of lawyers without the help, assistance and silent permission of its office bearers.
The Kerala Advocates Welfare Fund started in the year 1980 for the payment of retirement benefits to Advocates in the State of Kerala and for matters connected there with or incidental thereto. It was in the financial year of 1976-77, the then Finance Minister announced during his budget speech that the Government is proposing to set up an Advocates Welfare Fund and the administration of the Fund would be entrusted to the Bar Council of Kerala. Though a bill for the establishment of Advocate Welfare Fund was drafted and published, it lapsed due to the dissolution of the Assembly. The same was included in the budget speech of 1980-81 and it came into force in the year 1980.
The main sources to the Fund as per Section 3 of the Act are 20% of the enrollment fee levied by Bar Council, amount set part from the Legal Benefit Fund constituted under Section 76(2) of The Kerala Court Fees and Suit Valuation Act, application fees and annual subscription collected from the members of the Fund (membership to Welfare Fund is voluntary and all lawyers are not members to the Fund. Annual subscription will be varying depending upon the standing of the members) and all sums collected by way of sale of Welfare Fund stamps.
As per Section 9 of the Act the Trustee Committee formed by the Government shall administer the Fund. The Trustee Committee is specified in Section 4 of the Act. The Trustee Committee shall consist of Advocate General of Kerala, who shall be the ex-officio Chairman, Law Secretary to Government, (ex-officio), a member nominated by the Government, Three Bar Council Members nominated by BCK, Treasurer of the Bar Council shall be the ex-officio Treasurer, Secretary of the Bar Council shall be the ex-officio Secretary and the President of Kerala Bar Federation(ex-officio). As per Section 20 of the Act, non-official members of the Trustee Committee shall be eligible for travelling allowances and daily allowance.
After the amendment dated 8.11.2016 to the Act, a member in the Fund will be eligible for a maximum benefit of `10,00,000/- and the eligibility period is extended from 35 years to 40 years. A member is eligible for ` 25,000/- for each completed years and is eligible for a maximum amount of ` 10,00,000/- (25,000 x 40=10,00,000/-). As per Section 16(2) the minimum amount due to death is ` 5,00,000/-. If a member forced to receive eligible Welfare Fund amount from the Fund due to unforeseen reasons before his retirement, he has to surrender his Sannathuand thereafter he cannot continue as a lawyer. This provision is against the provisions of Advocates Act, which is a Central Act. Advocates Act permits a lawyer to continue as a lawyer unless he is disqualified by the reason stated in the Act. This is one of the major anomaly in the Welfare Fund Act and it needs to be corrected.
By Section 10 of the Act the accounts of the Trustee Committee shall be audited by a Chartered Accountant appointed by the Bar Council and the accounts certified by the auditor together with audit report shall be forwarded to the Bar Council by the Trustee Committee. (Refer Section 10(4) & 10(5)). The Secretary of the Bar Council is the chief executive authority of the Trustee Committee and responsible for carrying out its decisions (Section 11(a)) and he shall operate the bank account of the Trustee Committee and shall prepare its minutes (Section 11(d)). As per Rule 6(2) of the Advocates Welfare Fund Rules, the Secretary shall be the custodian of the stamps and he shall maintain the records and registers including printing order register, stock register, cash book and receipt books with inner foil.
As the provisions and proceedings are very clear in the Act, the corruption which occurred in the Fund is very high. Though there is specific provision for auditing the account of the fund annually, from 2007 to 2017 no audit was conducted. It is the duty of the Bar Council to appoint an auditor and it is the duty of the Trustee Committee to submit the audited account along with the certificate to Bar Council. There is gross negligence and dereliction of duty by both the statutory body members and it resulted in rampant corruption in the fund. In the year 2017 when an adhoc committee was in charge of the Bar Council it found that there was no mandatory annual accounting and auditing in the fund and then initiated accounting process for the said period. In a reply under The Right to Information Act dated 03-01-2018 the Trustee Committee explained that, ‘after perusing the accounts for the years 2007-08 to 2009-10, auditor had pointed out several irregularities. Though several opportunities were given by the ad hoc Committee, Bar Council of Kerala, to concerned incumbent viz Sri.M.K.Chandran, accountant to offer explanation regarding the irregularities, no satisfactory reply was given and accordingly, Trustee Committee at its meeting held on 12.8.2017 decided to initiate disciplinary proceedings against Sri.M.K.Chandran. As part of disciplinary proceedings initiated based on irregularities, noticed by the auditor including swindling of money, malversation and defalcation, M.K.Chandran accountant has been placed under suspension pending disciplinary proceedings and now the matter is pending investigation by the VACB.Only after completion of enquiry further information can be divulged’ .
The Bar Council issued a charge memo in which 19 charges was alleged against Mr.Chandran including that books of accounts of the Welfare Fund are not properly maintained, No stock register is maintained for the sale of welfare fund stamps, proper records for welfare fund stamps have not been maintained etc. It is stated in the memo that there is deficiency of `15,03,572.30/- in bank account balance for the period from 2011-12. The RTI reply reveals the method of misappropriation of money from the account. It reveals that the actual amount was not remitted in the account but bank counter foils were manipulated and wrong amounts were entered into the account book. For example Chalan No.89 shows that on 29.6.2012 `5,18,058/- is remitted in the bank account. But actually the remittance in the bank account is only ` 58/- . After getting the sealed bank counter foil, entered the figures 5,18,0 on the left side of the figure 58/- in the Chalan and thus filed the Chalan by showing that an amount of ` 5,18,058/- is remitted. But the actual remittance is only ` 58/- and the rest of the amount i.e., ` 5,18,000/-will go to the pockets of the persons who looted the fund. According to Bar Council, from 29.6.2012 to 27.6.2013 in 12 entries a total amount of ` 8,16,000/-was looted by these people. The entire audited account is not yet published by the Trustee Committee. But it is presumed that an average amount not less than rupees 10 crore is lost from the fund.
Can an ordinary prudent man believe this story that an accountant who is only a staff of the Bar Council Office, manipulated this much of amount from the fund? It is the Secretary of the Bar Council who is the ex-officio Secretary of the Trustee Committee to operate and keep the minutes of the Trustee Committee account. A plain perusal of the bank Pass Book alone was sufficient to understand the irregularities. It is the duty of the Secretary to keep the register of welfare fund stamps along with stock register. How can we blame an accountant for the latches of Secretary? It is the duty of the Trustee Committee members to see that the annual account is audited and everything is perfect in the fund. Why the Bar Council failed to appoint Chartered Accountant to audit the account of the fund for long years from 2007-2017? Can we say that this huge financial misappropriation took place without the knowledge and consent of the concerned? Now the Bar Council and the then Trustee Committee members are not ready to take the responsibilities of this looting for which they found a scapegoat in accountant Chandran. The Bar Council issued a charge memo against the Secretary and conducted an internal enquiry by the Executive Committee of the Bar Council and finally he was taken back to the job.
Vigilance and Anti-Corruption Bureau is conducting enquiry on the issue but Chandran alone is in the array of accused. The Secretary who is in charge of the fund and account and responsible for keeping register and stock register for the welfare fund stamp is not in the purview of enquiry. The then Trustee Committee members for the period from 2007-17 who are responsible to administer the fund are not in the purview of enquiry. Is it a proper enquiry? The persons who are legally liable to protect the Fund are legally liable for the corruption. Dereliction of duty, silent consent for corruption and failure to discharge duty should also be enquired. This saga of corruption should be investigated by an independent agency and the entire Trustee Committee members for the period should come under the purview of investigation. How can we recover this huge amount of crores of rupees and from whom this amount can be recovered? The entire Trustee Committee members should be held liable for the loss of amount from the Fund and they are to be made answerable and this amount should be recovered from them. The Bar Council of Kerala should go for an independent impartial investigation by an independent agency, under the guidance of High Court and if the Bar Council is reluctant, then the entire Lawyer community of Kerala should unite above partisan politics and should fight for justice.
Rape – A Serious Blow to the Supreme Honour of Woman
By Parippally R. Raveendran, Former Member Bar Council of India
12/06/2020Rape – A Serious Blow to the Supreme Honour of Woman
(By Parippally R. Raveendran, Former Member, Bar Council of India,
Special Public Prosecutor)
1. Rape is the gravest form of violence against a woman. The meaning of the word “rape” as contained in ‘Random House Dictionary of English Language’ is “the act of physically forcing a woman to have sexual intercourse.”
2. According to National Crime Record Bureau (NCRB) 2013 Annual Report, 24923 rape cases were reported across India in 2012. Out of these 24470 were committed by someone known to the victim (98% of case). India has been characterized as one of the countries with the lowest per capita rate of rape. The 10 countries ranked as the most dangerous for the woman by the survey conducted between March 26 and May 4 are Syria, Somalia, Saudi Arabia, Pakistan, Democratic Republic of Congo, Yemen, Nigeria and
United States. Particularly in US where a rape occurs in every 10 minutes, there are an average 55000 victims of rape and approximately 80000 of offenders in every year in that country (Reliance placed on Paripoornanath Varma, Sex Offences in India and Abroad 1977) 62-63.
3. The national conviction rate in India for offences in Indian Penal Code is around 46%. The State with highest conviction rate is Kerala (84%). Every fourth rape victim in India is a minor as per the reports of Press Trust of India, New Delhi, 10 January 2020.
Seven years after the Nirbhaya Case India has made a little progress in preventing crime against woman. According to statistics, a woman is raped in India every 20 minutes. In December 2019 more than 32500 cases of rape were registered with the police. In 2017 about 90 per day according to the latest trend available.
According to the National Crime Record Bureau (NCRB) 1,56,327 rape cases were taken for trial in 2018. Out of these trial was completed in 17313 cases, result in conviction only 4708 cases, there was acquittal in 11,133 rape case in India and conviction rate is 27.2 %.
4. Rape is a grave crime against the society in which the assault is on the body, mind and the privacy of the victim. The prosecutrix in the aforesaid crime reduced to vegetable, as it shakes the very core of her life. The most perverted crime is lowering the reputation, status, dignity and honour of the woman. The trauma which generates from the crime invokes tremendous response from the public at large and it causes psychological and mental harm to the prosecutrix.
The offence of crime is violative of the fundamental right enshrined in the Constitution under Article 21. On account of the sexual violence the assailant, not only causes physical injuries but leaves a scar and social stigma on the womanhood and it affects her dignity, honour, reputation and social status.
Section 375
Rape - A man is said to commit ‘rape’ if he-
(a) Penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or
(b) Inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her do so with him or any other person; or
(c) Manipulates any part of the body of a woman so as to cause penetration into the vagina, the urethra or anus or any part of body of such woman or makes her do so with him or any other person; or
(d) Applies his mouth to the vagina, anus, urethra of a women or makes her to do so with him or any other person, under the circumstances falling under any of the following seven 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 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 eighteen years of age.
Seventhly -- When she is unable to communicate consent.
Explanation 1. For the purpose of this section,” vagina” shall also include labia majora.
Explanation 2. Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non verbal communication, communicates willingness to participate in the specific sexual act:
Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of the fact, be regarded as consenting to the sexual activity.
Exception 1. -- A medical procedure or intervention shall not constitute rape.
Exception 2. -- Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.
5. The victim of rape suffers both physically and psychologically. The psychological trauma is severe for a rape victim. The Supreme Court has given a clear picture of trauma which a rape victim suffers due to the commission of this offence. The court observed that “ A rapist not only violates the victim’s privacy and personal integrity, but inevitably causes serious psychological as well as physical harm in the process. Rape is not merely a physical assault- it is often destructive of the whole personality of the victim” (State of Punjab v. Gurmit Singh(1996 (1) KLT OnLine 916 (SC) = (1996) 2 SCC 384), State of Rajasthanv. N.K.(2000 (2) KLT SN 21 (C.No.23) SC = (2000) 5 SCC 30).
6. Indian Penal Code, 1860-Sections 376 and 506-Accused, a school teacher, was convicted by trial Court for committing rape on his student of class 4-Report was lodged with police when girl was found to have become pregnant-High Court set aside conviction taking a view that age of victim was more than 16 years and no evidence showed that victim had not consented to the act and that time of alleged rape was improbabilised by medical evidence-State appeal-Radiological test indicated age of victim between 15 to
16-1/2 years-School record established her age to be 14 years and school record unerringly proved the date of birth of victim-Victim being less than 16 years, question of consent was of no consequence-High Court was wrong to hold that victim had failed to show that she had not consented-Factually also conclusion was erroneous-Victim was rustic illiterate and to examine such evidence with microscopic approach would be an insult to justice oriented judicial system-Delay in lodging FIR was duly explained-Acquittal order could not be sustained and conviction and sentence of 7 years imprisonment recorded by trial Court was liable to be restored. Indian Penal Code, 1860-Section 376-Victim of rape is not an accomplice-No rule of law that her testimony cannot be acted without corroboration in material particulars (State of H.P. v. Shreekant Shekari(2004 (6) Supreme 550).
7. Consensual sex is not an offence of crime. As per Section 90 of I.P.C. a consent is not such a consent as it intended by any section of this Code (IPC), if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence such fear or misconception; or if the consent is given by a person who, from unsoundness of mind, or intoxication, is unable to understand the nature and consequences that to which he gives consent; or unless the contrary appears from the context, with consent is given by a person who is under twelve years of age.
8. Consent is an act of reason accompanied with deliberation the mind weighing as in balance the good and evil on each side. In consensual sex the paramount consideration is the tacit consent of the prosecutrix. If the consent is obtained by fraud, it is not a valid consent. The consent can be inferred from the attending facts and circumstances of each case, if the prosecutrix is having social awareness and sufficient maturity to distinguish between what is evil and not evil.
9. Jowitts Dictionary of English Law (IInd Edition) Volume 1 1979 at page 422 the word consent has been explained as an act of reason accompanied with deliberation the mind weighing as in a balance, the good or evil on either side. It is further stated that consent supposes three things. A physical power, mental power and a free and serious use of them and if the consent be obtained by intimidation, force, mediated imposition, circumvention, surprise, or undue influence, it is to be treated as dilution and not as a deliberate and free act of mind (reliance placed on State of U.P. v. Chhoteylal(2011 (1) KLT SN 45 (C.No.60) SC =AIR 2011 SC 697).
10. Voluntary consent or consent under the misconception of fact is elaborately discussed by their Lordship Justice Santhosh Hegde and Justice B.P.Singh which is reported in Uday v. State of Karnataka (2003 (1) KLT OnLine 1108 (SC)). In that decision their Lordships held that consent given by the prosecutrix to sexual intercourse with the accused appellant on a promise that he would marry her and that is a false promise cannot be said to be given under a misconception of fact, a false promise i.e., not a fact within the meaning of the Penal Code. Referring on catena of decisions in the aforesaid case Uday v. State of Karnataka, the Apex Court held that under Section 90 of the Indian Penal Code the consent is vitiated only if it is given under a misconception of fact. A belief that the promise of marriage was meant to be fulfilled is not a misconception of fact. The question of misconception of fact will arise only if the act consented to, i.e., believed by the person consenting to be something else and on that pretext sexual intercourse is committed. In the case of Holmen v. Queen (1970 WAR 2) it was held that “there does not necessarily have to be complete willingness to constitute consent. A woman’s consent to intercourse may be hesitant, reluctant or grudging but if she consciously permits it, there is consent.
11. Regarding the consensual sex the said judgment refers in Para No.11 some of the decisions referred in Words and Phrases-permanent edition volume 8A. At page 205 it has been held that adult females ‘understanding of nature and consequence of sexual act must be intelligent understanding to constitute consent’. Consent within penal law, defining rape requires exercise of intelligence based on knowledge or of its significance and moral quality and there must be choice between resistance and assent. Legal consent, which will be held sufficient in prosecution for rape assumes a capacity to the person consenting to understand and appreciate the nature of the act committed, its immoral character and the probable and natural consequences this may attend it (See: People v. perry 26 Cal App 143).
12. Every consent involves a submission but the converse does not follow and a mere act of submission does not invoke consent. The case law reflects that the consent of the prosecutrix must be after the due deliberation and application of mind of the prosecutrix and she is weighing in her balance of mind, the distinction between good and evil.
The High Court of Kerala in Vijayan Pillai @ Balu v State of Kerala(1989(2) KLT SN 13 (C.No.14) Balakrishnan (J) observed;
“The vital question to be decided is whether the above circumstances are sufficient to spell out consent on the part of CW1. In order to prove that there was consent on the prosecutrix it must be established that she freely submitted herself while in free and unconstrained position of her physical and mental power to act in a manner she wanted.
13. A Division Bench of the Kolkatta High Court noticed the provisions of Section 90 and concluded:- The failure to keep the promise at a future uncertain date due to reasons not very clear on the evidence does not always amount to a misconception of the fact at the inception of the act itself. In order to come within the meaning of misconception of fact, the fact must have an immediate relevance. The matter would have been different if the consent was obtained by creating a belief that they were already married. In such a case the consent could be said to result from a misconception of fact. But here the fact alleged is a promise to marry we do not know when.
There Lordships further stated that if a full grown up girl consents to have a sexual intercourse on a promise of marriage that will occur on a future uncertain date and the sexual activity continues until she, became pregnant, it is an act of promiscuity on her part and not an act induced by misconception of fact.
In the said judgment the Apex Court had taken a view that the consent given by the prosecutrix to sexual intercourse with a person to whom she is deeply in love on a promise that he would marry her on a later date, cannot be said to be given under a misconception of fact. A false promise is not a fact within the meaning of the Code. The factum of consensual sex has been further discussed by Punjab High Court in Rao Harnarayan Singhand Kerala High Court in Vijayan Pillaihad found approval by the Apex Court in State of H.P. v. Mangoram((2000) 7 SCC 224).
14. Before indulging in the sexual activity, even though there is a false promise on the part of the accused after the exercise of her intelligence her voluntary participation in the sexual act amounts to her tacit consent in the consensual sexual intercourse and therefore no offence of rape is made out from the promise of marriage. The Apex Court affirmed this legal position in Dileep Singh v. State of Bihar(2005 (1) KLT SN 18 (C.No. 20) SC)that in para 21 of the judgment “Consent supposes three things; a physical power, a mental power and a free and serious use of them. Hence if consent be obtained by intimidation, force, mediated imposition, circumvention, surprise or undue influence it is to be treated as delusion and not as a deliberate and free act of mind. In para 27 of the judgment the Supreme Court relying various other decisions of the Supreme Court demonstrated how the consent under Section 90 I.P.C. will workout. The failure to keep the promise at a future uncertain date due to reasons not very clear on the evidence does not always amount to a misconception of fact at the inception of the act itself. In order to come within the meaning of misconception of fact, the fact must have an immediate relevance. The matter would have been different if the consent was obtained by creating a belief that they were already married. In such a case the consent could be said to result from a misconception of fact. But here the fact alleged is a promise to marry, we do not know when. If a full grown up girl consents to the act of sexual intercourse on a promise of marriage and continues to indulge in such activity until she becomes pregnant it is an act of promiscuity on her part and not an act induced by misconception of fact.
15. In consensual sex the court has to consider whether before engaging in sexual activity the prosecutrix is aware of the consequences of her act. In certain cases the prosecutrix consented to the sexual intercourse, on account of her love and passion of the accused and not on account of the misrepresentation or fraud played by the accused. In such a case the court has to look into the material facts and circumstance of each case. The Supreme Court in Deepak Gulati v. State of Haryana(2013 (2) KLT 762 (SC)) held that there may be cases were prosecutrix agrees to have sexual intercourse on account of her love and passion for the accused, and not solely on account of misrepresentation made to her by the accused or where an accused on account of circumstances which he could not have foreseen, or which were beyond his control, was unable to marry her. Despite having every intention to do so, such cases must be treated differently.
A major lady having sufficient maturity engaged in sex with a man got pregnant and gave birth to a child. Apart from the promise of marriage the sexual relationship developed on account of the passion and love affair. In that case if the physical relationship between the parties are the outcome of the deep love and affection. It cannot be said that there was misconception of fact. This legal preposition is highlighted by Culcutta High Court in the decision reported in Pradip alias Babudas v. State of West Bengal (2018 (1) KLT OnLine 3155 (Cal.). A major lady giving consent to unbridled sex with the appellant and thereafter becoming pregnant and giving birth to male child subsequently the victim refused to marry appellant. Court held that the victim was subjected to forcible sexual intercourse by the appellant without her consent and will. The promise of marriage was not the only reason for having sex between parties but they involved in such physical relationship out of the love affair between themselves. This fact has been admitted by the victim in her cross examination. Therefore it cannot be said that the physical relationship between the parties was developed with the assurance of marriage. The victim did not even divulge such fact of pregnancy till the date of her delivery of male child-guilt of accused not established Accused held entitled to acquittal.
17. The consent under Section 90 of the I.P.C. will be attracted in a case of first intercourse and after that a promise to marry. The Chattisgrah High Court held that it is an act of promiscuity(indiscriminate sexual relationship) in para 6 and 7 of the judgment of Prit Puna RamPrajapathy v. State of Chattisgrah.
In Bibul Medhi v. State of Assam2008 Criminal Law Journal 1099 (GAU) held that every consent involves a submission but every submission is not consent and the mere fact that a women had submitted to the promise of the accused does not necessarily indicate that her consent existed unless the evidence on record establishes that the sexual act, which the prosecutrix has allowed was accompanied with deliberation after the mind and weighed as in a balance the good and evil on each side with the existing capacity and power to withdraw the assent according to one’s will or pleasure.
So the consensual sex is the voluntarily participation of the prosecutrix after applying her intelligence of mind and engaged after due deliberation of mind.
18. Consent on the part of the woman is the usual defence in a case for allegations of rape. Consent, however is the voluntary participation, not only after the exercise of intelligence based of knowledge of significance and moral quality of the act, but after having freely exercised the choice between resistance and assent. When the woman has submitted her body under the influence of fear or terror, it cannot be a valid consent. Absence of substantial external marks of violence on her person as a proof of resistance was held not to be sufficient to draw a conclusion of resistance against the commission of the offence. (Joseph v. State of Kerala1962 (2) Cri. LJ 668; AIR 1958 Pun.123, rel.on).
The consent obtained by fraud and on this point, the observation of Wills, J., in Queen v. Clarenceis as under: 1888 22 QBD 23(27 A)
“That consent obtained by fraud is no consent at all is not true as a general proposition either in fact or in law. If a man meets a woman in the street and knowingly gives her money in order to procure her consent by fraud, but it would be childish to say that she did not consent.
Section 129 of the C.G.S.T. Act – A Draconian Law?
By Gayathri Poti, Advocate, Ernakulam
06/06/2020Section 129 of the C.G.S.T. Act – A Draconian Law?
(By Gayathri Poti, Advocate, Ernakulam)
The transport of goods, intra-state or inter-state, is an integral facet of trade and business.Usually, the movement of such goods is preceded by the sale of such goods. Apart from regular transactions involving purchase and sale, there are other situations that warrant the transport of goods from one place to another, be it a stock transfer or transport of goods back from the premises of the job worker. Whilst several of these transactions giving rise to the transport of goods are bona fide transactions in which the tax payable, if any, is accounted for, there is always scope for unaccounted transfer of goods wherein the parties deliberately dodge payment of tax. It is to curb such illegal transactions that the legislature installed an elaborate system of verification of the genuineness of transfer or movement of goods from one place to another under the C.G.S.T. Act, 2017. This is a two-fold mechanism, the first part of which is set in motion by the prescription of certain documents that have to be compulsorily carried along during the transportation of goods. The second aspect of this mechanism is the installation of check-posts, where the authorized officers are required to verify if the relevant documents accompany such transport. However, it is important to note that such a system of ensuring compliance with the taxation norms is far from new. Rather, it can be said that the legislature has borrowed from the previous indirect tax regime, which comprised of similar measures to provide against tax evasion. In order to understand why the current apparatus for imposition of penalty for failing to produce requisite documents at the check post is flawed, it is vital to revisit the corresponding provisions under the previous indirect tax regime.
Under the Kerala Value Added Tax Act, 2003, it is Section 47 that prescribed the procedure for inspection of goods that are in transit. As per sub-section (2) of Section 47, if an officer, upon inspection at the check post, has a reason to suspect that the goods under transport are not covered by proper and genuine documents or that the person transporting the goods is attempting to evade payment of the tax, he is empowered to detain the goods and allow for it to be transported only after the security is furnished by the owner of the goods or the vehicle. Pursuant to this, under sub-section (5), an inquiry is conducted by an officer appointed by the Government. Under sub-section (6), before conducting such an inquiry, the authorized officer is expected to serve a notice on the owner of the goods and provide him with an opportunity of being heard. After such enquiry, if the authorized officer finds that there has been an attempt to evade tax,he can pass an order imposing, on the owner of the goods, a penalty not exceeding twice the amount of tax attempted to be evaded. A conjoint reading of the above provisions makes it clear that that irrespective of the detention of the goods at the first stage, in which the check post officer suspects that the relevant documents are absent or that there is an attempt to evade tax, the final order penalizing the owner of goods can be passed only if the authorized officer comes to the concrete conclusion that the transport of such goods was an attempt to evade tax that legitimately due to the Government. The phrasing of sub-section (6), which permits for imposition of penalty only on a finding of an attempt to evade tax, is of significance. This is so because it shields those bona fide taxpayers whose transportation of goods suffer from procedural infirmities, while the transactionin itself is genuine. In other words, there is a requirement of mens rea that has to be satisfied before the authorized officer can impose the hefty penalty as provided for under the aforesaid sub-section. The authorized officer has to not only record that the transport of the goods lacked the requisite document but must also be convinced and able to establish that the absence of such documents during the transport was attributable to the attempt of the owner to evade tax. Therefore, mere non-availability of the documents during the movement of goods in itself would not call for penalty under Section 47. It is only when the documents are not made present during the transport because there is an intent to evade tax will there be grounds to issue an order under Section 47(6).
The Courts too have constantly reaffirmed the necessity to carve out a case of tax evasion for justifying the issuance of a penalty order by referring to the language employed in Section 29A of the Kerala General Sales Tax Act, 1963 which is in pari materia with Section 47(6) of the Kerala Value Added Tax Act, 2003. In Sunitha Diesel Sales & Services v. State of Kerala1,the consignment was subjected to penalty under S.29A of the Kerala General Sales Tax Act, 1963 on the ground that the delivery note was not in the form prescribed under the K.G.S.T. Act and that there was no proof of title of the good that was being transported. The High Court of Kerala observed that even though the documents, which would prove that the transaction was a sale-in-transit, was produced at a subsequent stage, the enquiry officer did not consider the same while passing the penalty order. The Court observed that in order to attract the provisions of S.29A, it is necessary for the assessing authority to establish that the assessee attempted to evade tax. It was held that though the petitioner was not carrying the relevant documents at the stage of transport of the goods, the fact that it was able to produce them at a later stage and explain the bona fidesof the transaction, would absolve the petitioner of the liability cast under S.29A (4) as there was an absence of tax evasion.The High Court of Kerala again, in India Food Exports v. State of Kerala,2 held that merely because the assessee produced the duplicate copy of the delivery note instead of the original would not attract penalty under Section 29A,since the assessee produced the original delivery note during the time of inquiry and thus proved that there was no mens rea to avoid tax. Similarly, in Sangeetha Ready Made World v. State of Kerala,3the Court held that a penalty order under S.29A(4) could not be imposed for a mere technical breach, the breach here being the absence of the registration number of the consignee. In Sagar Dye Chem v. State of Kerala,4 the Court observed that even though the assessee had failed to prepare a delivery note as mandated by the Act, the subsequent production of the books of account in which the sale had been recorded prior to the transport would serve as proof that there was no attempt by the assessee to evade tax and hence no penalty could be imposed.
The Central Goods and Services Tax Act, 2017 too mandates the carrying of certaindocuments when goods are being transported. Section 129 of the C.G.S.T. Act, 2017 provides for the procedure to be followed for the detention, seizure and release of conveyances in transit. A perusal of Section 129 will make clear the concerns surrounding itand an extract of the same is as follows:
“129. Detention, seizure and release of conveyances in transit:
(1) Notwithstanding anything contained in this Act, where any person transports any goods or stores any goods while they are in transit in contravention of the provisions of this Act or the Rules made thereunder, all such goods and conveyance used as a means of transport for carrying the said goods and documents relating to such goods and conveyance shall be liable to detention or seizure and after detention or seizure, shall be released, -
(a) on payment of the applicable tax and penalty equal to one hundred per cent of the tax payable on such goods and, in case of exempted goods, on payment of an amount equal to two per cent of the value of goods or twenty-five thousand rupees, whichever is less, where the owner of the goods comes forward for payment of such tax and penalty;
(b) on payment of the applicable tax and penalty equal to the fifty per cent of the value of the goods reduced by the tax amount paid thereon and, in case of exempted goods, on payment of an amount equal to five per cent of the value of goods or twenty-five thousand rupees, whichever is less, where the owner of the goods does not come forward for payment of such tax and penalty;
(c) upon furnishing a security equivalent to the amount payable under clause (a) or clause (b) in such form and manner as may be prescribed:
Provided that no such goods or conveyance shall be detained or seized without serving an order of detention or seizure on the person transporting the goods.
(2) The provisions of sub-section (6) of Section 67 shall, mutatis mutandis, apply for detention and seizure of goods and conveyances.
(3) The proper officer detaining or seizing goods or conveyances shall issue a notice specifying the tax and penalty payable and thereafter, pass an order for payment of tax and penalty under clause (a) or clause (b) or clause (c).
(4) No tax, interest or penalty shall be determined under sub-section (3) without giving the person concerned an opportunity of being heard.
(5) On payment of amount referred in sub-section (1), all proceedings in respect of the notice specified in sub-section (3) shall be deemed to be concluded.
(6) Where the person transporting any goods or the owner of the goods fails to pay the amount of tax and penalty as provided in sub-section (1) within seven days of such detention or seizure, further proceedings shall be initiated in accordance with the provisions of Section 130:
Provided that where the detained or seized goods are perishable or hazardous in nature or are likely to depreciate in value with passage of time, the said period of seven days may be reduced by the proper officer.”
On a combined reading of the substantive and procedural aspects of Section 129, it is clear that the order of detention is issued if there is a procedural irregularity with the transport of goods which are in contravention of the provisions of this Act or the Rules made thereunder.Subsequently, a notice is issued by the proper officer in which he proposes to impose tax and penalty owing to such irregularity. Then the owner of the goods is provided with an opportunity to tender an explanation against the purported infraction for which the goods and conveyance have been detained. The proceedings culminate with a final order, in which the proper officer determines the amount that is payable as tax and penalty, if any. The issue here lies with the fact that the section does not lay down parameters that the proper officer is expected to follow while passing the final order quantifying the tax and penalty payable. While sub-section (1) explicitly states that the grounds for issuing an order of detention is when the goods are being transported in contravention of the Act and rules, sub-section (3) which authorizes the proper officer to pass a final order, does not lay down any guidelines or factors that have to be taken into consideration before the final order is passed. As discussed above, the grounds for detaining the consignment under Section 47(2) of the K.V.A.T. Act is if the proper officer has a reason to suspect that (a) the goods are not covered by proper and genuine documents or (b) there is an attempt to evade tax, the final order imposing penalty under Section 47(6) can be passed only if the proper officer comes to the finding that there has been an attempt to evade tax and not merely on the grounds that the transport was not accompanied by the proper documents. In sub-section (3) of Section 129 of the C.G.S.T. Act, there is no mention of tax evasion as a pre-condition for passing the final order imposing penalty. An omission of such nature can have profound consequences as it obliterates the requirement of a finding of tax evasion to impose penalty. Therefore, the grounds for issuing the initial detention order and the final order subjecting the transaction to tax and penalty would be one and the same, the ground here being, the contravention of the provisions of the Act and Rules. Under such circumstances, even a procedural discrepancy would attract the obligation to suffer tax and penalty. This would result in disproportionately harsh repercussions as it would subject bona fide taxpayers, who might have unknowingly failed to comply with the rules surrounding the transport of goods, to both tax and penalty. For example, if the supplier issues an invoice for the transport and duly reflects it in his returns but fails to carry it during transport, he can be penalized under the said sub-section even if he produced a valid e-way bill during the transport. Had mens rea or intention to evade tax been made a rider to the imposition of penalty, as was done under the K.V.A.T. and K.G.S.T. period, honest taxpayers would have been protected against a situation such as the one above. Furthermore, if the assessee has already recorded the transaction in his books of accounts and duly paid tax, holding him responsible for a technical breach that took place during the transport of goods and imposing the tax component, as seen from sub-clause (a) and (b) and (c) of Section 129(1), despite the fact that tax has already been paid, would lead to double taxation.
The proposition that Section 129 has been framed in a manner that deliberately encompasses technical breaches is further strengthened by the fact that there is a higher degree of penalty if it is found that there was an attempt to evade tax during the transportation of goods. Section 130 of the Act is the provision that deals with confiscation of goods. The said section stipulates that goods and the conveyance are liable for confiscation if it is found, inter alia, that(a) it is being supplied or received in contravention of any of the provisions of this Act or the rules with intent to evade payment of tax (b) the person contravenes provisions of the Act or rules with an intent to evade tax. Once confiscation takes place, the goods and conveyance can be released only if the owner of the goods pays penalty under Section 122 and fine as determined by the authorized officer. This fine should not be more than the market value of the goods confiscated but the aggregate of the fine and penalty under Section 122 should not be less than the amount of penalty leviable under sub-section (1) of Section 129. The High Court of Gujarat, in Synergy Fertichem Pvt. Ltd. v. State of Gujarat,5delved into the distinction between Section 129 and 130 and indicated the guidelines to be followed in respect of these provisions.It was held that in order to detain goods-in-transit and invoke proceedings under Section 129, a mere contravention of the Act or Rules would be sufficient whereas confiscation proceedings for goods-in-transit, as per Section 130, could only be invoked if there was an attempt to evade tax. The Court further went on to clarify that the mere fact that the owner of goods had paid tax and penalty under Section 129 would not bar confiscation of his goods under Section 130 and that if the authorities found something incriminating against the owner of the goods in the course of the inquiry, if any, then it would be permissible to initiate confiscation proceedings under Section 130 of the Act.
Although there exists a different standard of penalty for an attempt to evade tax, it does not take away from the fact that the amount made payable by way of tax and penalty for a procedural breach under Section 129 is exorbitant and unwarranted. In fact, vires of Section 129 has already been challenged in various High Court sincluding, Rajasthan6and Kerala.7One of the main contentions raised by the petitioners in these cases is that the Section suffers from the vice of gross unreasonableness and disproportionality as it does not permit for the release of goods without payment of tax and penalty even if the owner is able to satisfy the proper officer of the bona fides of the transaction. Another contention raised before the Hon’ble High Court of Kerala is that the section does not make any distinction between a) taxable transactions and non-taxable transactions b)minor contraventions and major contraventions c) bona fide mistakes or intentional evasion as it provides for a uniform penalty of 100% across all situations. Therefore, in light of the fact that unequals are treated as equals, it is contended that the Section violates the test of reasonableness and equity as guaranteed under Article 14 of the Constitution. Though all of the petitions have been admitted, the matter is still pending before the respective Courts, and therefore, the constitutional validity of Section 129 is still in question.
Foot Note:
1. 1996 (2) KLT 571.
2. (2009) 21 VST 436.
3. 2008 (3) KLT SN 58 (C.No.71) = (2008) 17 VST 51.
4. (2003) 133 STC 478.
5. 2020 (33) G.S.T.L. 513.
6. CW/26491/2018.
7. W.P. (C) 859/2020.