Suit for Declaration of Title and Recovery of Possession by Auction
Purchaser in Court Sale — An Analysis of Statute and Case Laws

(By R.Surendran, Advocate, High Court of Kerala)

Did the Code of Civil Procedure Amendment Act 1976 (Act No.104 of 1976) open a new avenue for auction purchasers enabling them to file a suit for declaration of title and recovery of possession even if they failed to make application under Rule 95 of Order XXI of C.P.C., within the time allowed by the Article 134 of Limitation Act? Vigilant auction purchasers approach the execution court well within one year, the time allowed by the Article 134 of Limitation Act.  But what happens when there is failure or omission to apply for delivery of property within the one-year time from the date on which the sale becomes absolute, as prescribed by Art.134 of Schedule to Limitation Act, 1963? When the auction purchaser fails to make application for delivery under Rule 95 of Order XXI of C.P.C., question often arises whether the auction purchaser can later resort to Section 5 of the Specific Relief Act in the manner provided by the Code of Civil Procedure, 1908 and get a relief of declaration of title and recovery of possession?

2.  The decision of High Court of Kerala in Aravindakshan Nair N.G. and Ors. v. Binoy Kurian reported in (2017 (3) KLT 135),persuaded me to probe into the subject further. The Honourable High Court held that auction purchaser who failed to take delivery under Rule 95 of Order XXI of C.P.C. could sue for recovery of possession and declaration of his title within 12 years, in view of Article 65 of Schedule to Limitation Act, 1963.

3.  It was canvassed before the High Court that S.12 and Explanation II(b) of S.47 C.P.C., read along with O.XXI R.95 C.P.C., when clubbed with the legal principles in Art.134 of Limitation Act, would clearly make out that a person, who has not resorted to the procedure in O.XXI R.95 C.P.C. may lose his right to recover property after the time prescribed in Art.134 of Limitation Act. The learned Judge on a theoretical plane agreed with this line of argument but expressed helplessness because of the precedential principles. The decision of the three-Judge Bench decision reported in (AIR 1973 SC 2423) (Harnandrai Badridas v. Debidutt Bhagwati Prasad) was not accepted by the High Court for the reason that this decision was pronounced by the Supreme Court before amendment of the C.P.C. by Act 104 of 1976, which came into effect on 01.02.1977.  It was also held that the contentions raised by the appellants that the suit is barred under Article 134 of Limitation Act by virtue of the provisions in Section 12 and Section 47 C.P.C. and also under Order XXI Rule 95 C.P.C. cannot be accepted by the High Court, and can be urged only before the Apex Court.

4.  Had the Honourable High Court considered the effect of the amendment of Section 47 C.P.C., by Act 104 of 1976, and the statute that existed prior to the 1976 amendment,the court would have reached an entirely different conclusion.  It is not the law that every judgement rendered prior to an Amendment Act would cease to have its significance after amendment. The binding effect of the decision in Pattam Khader Khan v. Pattam Sardar Khan,(by a two-Judge Bench) reported in (1996 (2) KLT SN 42 (C.No.47) SC
alsoought to have been analysed. In other words, the Honourable High Court ought to have investigated into the ratio of the three-Judge Bench decision reported in Harnandrai Badridas v. Debidutt Bhagwati Prasad(AIR 1973 SC 2423) and analysed whether the ratio decidendihas been anyway unsettled, altered, interdicted, diluted or displaced or has become redundant in view of the amendment of the Section 47 of C.P.C. by Act 104 of 1976 or distinguished by the two-Judge bench decision in Pattam Khader Khan v. Pattam
Sardar Khan(1996 (2) KLT SN 42 (C.No.47) SC).

5. In order to understand the ratio in the judgement reported in (AIR 1973 SC 2423) (Harnandrai Badridas v. Debidutt Bhagwati Prasad)correctly, we have to first understand the Section 47 of C.P.C. as stood in 1973 on the one hand and the provision prior to the 1956amendment on the other hand. The Section 47 of C.P.C. as stood before 1956 amendment is reproduced as follows:

Section 47.Questions to be determined by the Court executing decree:

(1) All questions arising between the parties to the suit in which the decree was passed,or their representatives, and relating to the execution, discharge or satisfaction of the decree shall be determined by the Court executing the decree and not by a separate suit.

(2) The Court may, subject to any objection as to limitation or jurisdiction, treat aproceeding under this Section as a suit or a suit as a proceeding and may, if necessary, order payment of additional court-fees.

(3) Where a question arises as to whether any person is or is not the representative of a party, such question shall, for the purposes of this Section, be determined by the Court.

Explanation: For the purposes of this Section, a plaintiff whose suit has been dismissed and a defendant against whom a suit has been dismissed, are parties to the suit.

6.  On a perusal of the above section as it stood prior to 1956 Amendment Act, it is clear that the case of an auction purchaser was not at all directly dealt with in the provision.  Therefore the question, whether an enquiry in an application under Rule 95 of Order XXI of C.P.C. would fall within the scope of Section 47 of C.P.C. etc.or by way of separate suit, usually was a matter of debate in various courts at that point of time.This question was resolved by the Act No.66 of 1956 as per which the Explanation was substituted with a new Explanation, which was brought into force on 1.1.1957. The said new Explanation brought every auction purchaser also within the definition of ‘party to the suit’.  After the amendment, the Explanation in Section 47, C.P.C. read as follows:

Explanation: For the purposes of this Section, a plaintiff whose suit has been dismissed, a defendant against whom a suit has been dismissed and a purchaser at a sale in execution of the decree are parties to the suit.

7.  But still, the sub-section (2) of Section 47 C.P.C.continued to be in the statute book till the day before 1.2.1977. As per the sub-section (2), the Court may, subject to any objection as to limitation or jurisdiction, treat a proceeding under this section as a suit or a suit as a proceeding and may, if necessary, order payment of additional court-fees.  Therefore sub-section (2) continued to operate as a provision for entertaining separate suits and treating such suit as an application under Section 47(1) of C.P.C. or vice versain a very limited area.  The sub-section (2) was omitted only with effect from 1.2.1977 on the commencement of Act No.104 of 1976.

8.  In Chera Chacko v. Kumaran Kesavanreported in (1962 KLT 848), it was held,

“We hold that a suit for a declaration that the execution sale is void and for redemption on that basis, will not lie as the same raises a question which relates to execution, discharge or satisfaction of the decree. As we hold that the suit is barred on account of S.47 of the Civil Procedure Code, and that the suit cannot be treated as an application under that section as the period of limitation under Art.181 expired before the date of the suit, no other question arises for decision in this appeal.”

In Ammukkutty Amma Malathy Amma v. Varu Jose, reported in (1963 KLT 635 (F.B.)) a Full Bench of Kerala High Court held that a separate suit for recovery of possession with a prayer for declaration that the auction sale is void, is not maintainable.

9.  Prior to the commencement of Act No.66 of 1956 there were two conflicting views regarding the status of a decree holder who later becomes an auction purchaser and the question whether his application under Rule 95 of Order XXI of C.P.C. would come within sub-section (1) of Section 47 of C.P.C. There was a Full Bench decision of the Calcutta High Court in Kailash Chandra Tarafdar v. Gopal Chandra Poddar (I.L.R.53 Cal.781) followed by the Madras High Court, while on the other hand there was a decision of the Lahore High Court in Ram Singh Gopal Singh and Anr. v. Abdullah Habibullah (I.L.R.26 Lah.252), which has been followed in various Full Bench decisions by the Allahabad High Court and also by the Patna High Court and the Bombay High Court.The Lahore view was that the decree holder/auction purchaser ceases to be a party to the suit and the Calcutta view was that he would remain as a party to the suit.  The question was hence considered and decided by the Supreme Court in Harnandrai Badridas v. Debidutt Bhagwati Prasad (AIR 1973 SC 2423)
(a three-Judge Bench decision comprising of Hon’ble A.M.Grover, K.K.Mathew and Mukherjea J.J.).  The suit was instituted prior to the commencement of Act No.66 of 1956 and continued and decreed after the commencement of Act No.66 of 1956.  The sale in execution of decree was conducted after the commencement of Act No.66 of 1956.

10.  The appeal reached before the Supreme Court on certificate of fitness issued by the Calcutta High Court in view of the cleavage in opinion of different High Courts.  The main contention of the appellant before the appellate court as well as before Supreme Court was that as soon as a receiver in execution has executed a conveyance in favour of an auction purchaser the decree stands satisfied and there is an end of the execution proceedings so that the question of the auction-purchaser getting possession of the property is a matter which has nothing to do with the execution, discharge or satisfaction of the decree. Such a question does not fall to be determined by the executing court but can be decided only in a separate suit, was the further contention.

11.  After referring to the decision reported in 1892 (1892) 19 Ind App.166 (PC) of the Privy Council and the decision in Ganapathy v. Krishnamachariar, 45 Ind App.54:
(AIR 1917 PC 121), the Supreme Court favoured a liberal construction of Section 47 and held that a decree holder who has been a party to the decree will never shed his character as such party merely upon purchasing the property at the execution sale. It was observed that a decree holder purchases the property in execution of his decree with the permission of the Court and there is no reason why he should not retain his character of a party to the suit until the delivery of possession to him of the property purchased by him. Considering the above, it was held that, if any question is raised by the judgment debtor at the time of delivery of possession concerning the nature of the rights purchased and if the judgment debtor offers any resistance to delivery of possession the question must be one which relates to the execution, discharge and satisfaction of the decree and arises between the parties to the suit. Therefore the legal position is settled in respect of decree holder purchasing property in auction sale that he continues to be a party and the question of delivery of property falls within the scope of Section 47 of C.P.C.

12.  After referring to the learned commentator of the 13th Edition of Sir Dinshaw Mulla’s Code of Civil Procedure,and the decision of the Privy Council in Ganapathy’scase
(AIR 1917 PC 121) it was observed that there has been an amendment of S.47 as a result of which the purchaser at a sale in execution of a decree, whether he is the decree holder or not, is unquestionably a party to the suit for the purpose of S.47. The amendment referred to by the Supreme Court was the substitution of the Explanation as per Act No.66 of 1956, as per which the auction purchaser also was brought within the scope of Section 47 C.P.C.Considering the above, the Apex Court unequivocally held that all questions arising between the auction purchaser and the judgment debtor must be determined by the executing Court and not by a separate suit. Therefore the legal position is settled in respect of any person purchasing property in auction sale that he is a party and the question of delivery of property falls within the scope of Section 47 of C.P.C.

13.  Now the question is whether the amendment as per Act No.104 of 1976 any way reversed the legal position settled by the Apex Court so as to disregard or discard the judgement in AIR 1973 SC 2423(Harnandrai Badridas v. Debidutt Bhagwati Prasad) as obsolete? Do the new Explanations I and II, brought in by way of substitution as per the C.P.C. Amendment Act, 1976 (Act No.104 of 1976)open a new arena for the auction purchaser to maintain a suit for declaration of title and recovery of possession, notwithstanding the specific bar in sub-section (1) of Section 47 of C.P.C. that was never touched by any of the amendments since its inception in 1908?

14.  The sole Explanation brought into force as per Section 5 of Act No.66 of 1956 has been substituted by two Explanations as per Section 20 of the C.P.C. Amendment Act, 1976 (Act No.104 of 1976) with effect from 1.2.1977, and the Section 47 now reads as follows:

Section 47. Questions to be determined by the Court executing decree:

(1) All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree shall be determined by the Court executing the decree and not by a separate suit.

(2) (Omitted.)

(3) Where a question arises as to whether any person is or is not the representative of a party, such question shall, for the purposes of this section, be determined by the Court.

“Explanation I.-- For the purposes of this Section, a plaintiff whose suit has been dismissed and a defendant against whom a suit has been dismissed are parties to the suit.

Explanation II.- (a) For the purposes of this Section, a purchaser of property at a sale in execution of a decree shall be deemed to be a party to the suit in which the decree is passed; and

(b) all questions relating to the delivery of possession of such property to such purchaser or his representative shall be deemed to be questions relating to the execution, discharge or satisfaction of the decree within the meaning of this section.”

These Explanations coupled with the deletion of sub-section (2) of Section 47 C.P.C., with more clarity reaffirms that no suit will lay at the instance of an auction purchaser and his remedy is only to approach under Rule 95 of Order XXI of C.P.C.  Once he failed to approach under this provision his remedy is lost forever. According to me the statute after 1976 amendment has become more clear and put more rigor to hold a view that even the right to file a suit referred to in the deleted sub-section (2) of section 47, has been taken away.  Further, by way of amendment to Section 2(2) of C.P.C. the order passed under Section 47 C.P.C. has ceased to be a decree and no appeal is maintainable.The Kerala High Court in Kuriakose v. P.K.Narayanan Nair(1980 KLT 948) held,

“From the manner in which Section 2(2) was amended and the object with which it was done, it is fairly clear that the legislative intent was to affect the vested rights and not to retain them. The amendment was deliberately introduced to deprive, retrospectively as well as of course prospectively, the parties of the right of appeals.”

In Kondiba Dagadu Kadam v. Savitribai Sopan Gujar & Ors.,reported in (1999 (2) KLT OnLine 1006 (SC) observed that the amending Act was introduced on the basis of variousLaw Commission Reports recommending for making appropriate provisions in the C.P.C. which were intended to minimise the litigation, to give the litigant fair trial in accordance with accepted principles of natural justice, to expedite the disposal of civil suits and proceedings so that justice is not delayed, to avoid complicated procedure, to ensure fair deal to the poor sections of the community and restrict the second appeals only on such question which are certified by the Courts to be substantial question of law. This observation was made while considering the scope of Section 100 of C.P.C.

15. The Supreme Court (a three-Judge Bench) in Nandarani Mazumdar v. Indian Airlines & Ors.reported in (AIR 1983 SC 1201) also took the view that a separate suit is not maintainable in respect of matters relating to execution, discharge and satisfaction of decree.  But the suit was considered as an application under Section 47 of C.P.C. in view of Section 47(2) of C.P.C. and decided the dispute.

16.  The Supreme Court inGanapat Singh (Dead) by LRs v. Kailash Shankar reported in (AIR 1987 SC 1443) examined the scope of Section 47 after the 1976 amendment,examined the Explanation-II and held,

“Under Clause (a) of Explanation II the auction-purchaser shall be deemed to be a party to the suit in which the decree is passed. Under Clause (b), all questions relating to the delivery of possession shall be deemed to be questions relating to the execution, discharge or satisfaction of the decree within the meaning of Section 47. Section 47 bars determination of any question relating to the execution, discharge or satisfaction of the decree in a suit. Such question shall be determined by the executing court. As has been already noticed, in view of Clause (a) of Explanation II, the auction-purchaser shall be deemed to be a party to the suit in which the decree is passed and under Clause (b) of Explanation II all questions relating to delivery of possession shall be deemed to be questions relating to the execution, discharge or satisfaction of the decree. Such questions, therefore, are to be determined by the court executing the decree and not by a separate suit.”

The Apex Court proceeded further and negatived the contention that Article 136 of the Schedule to Limitation Act would govern an application for delivery of possession made by auction purchaser and held,

“An application for delivery of possession of immovable property purchased in execution cannot, by any stretch of imagination, be construed as an application for execution of a decree for possession of property so as to invoke the provision of Article 136 of the Limitation Act. Merely because the auction-purchaser will be deemed to be a party in the suit in which the decree has been passed, as provided in Clause (a) of Explanation II to Section 47 of the Code, and by virtue of Clause (b) of Explanation II all questions relating to delivery of possession of the property shall be deemed to be questions relating to execution, discharge or satisfaction of the decree within the meaning of Section 47, an application for delivery of possession under Order XXI Rule 95 of the C.P.C. cannot be equated with an application for the execution of a decree for possession so as to apply 12 years’ period of limitation as prescribed by Article 136 of the Limitation Act.”

This judgement of the Apex Court was not modified in any of the subsequent judgements.  The Supreme Court, in none of its judgements ever interpreted the above Explanations to hold that the legal position settled in AIR 1973 SC 2423 (Harnandrai Badridas v. Debidutt Bhagwati Prasad), by a three-Judge Bench or the judgement in Ganapat Singh (Dead) by LRs v. Kailash Shankarreported in (AIR 1987 SC 1443) has been anyway changed or reversed its course to hold that a separate suit will lie.  Quite unfortunately the decision in Ganapat Singh (Dead) by LRs v. Kailash Shankarreported in AIR 1987 SC 1443 was not at all brought to the notice of the Supreme Court in Pattam Khader Khan v. Pattam Sardar Khan (1996 (2) KLT SN 42 (C.No.47) (SC)or to the notice of the learned Single Judge while deciding the case Aravindakshan Nair N.G. and Ors. v. Binoy Kurian.

17.  The Kerala High Court, in Aravindakshan Nair N.G. and Ors. v. Binoy Kurian reported in (2017 (3) KLT 135) relied on the decision of two-Judge bench decision in Pattam Khader Khan v. Pattam Sardar Khan(1996 (2) KLT SN 42 (C.No.47) (SC) to hold that a separate suit will lie.  On reading the judgment of the Supreme Court it is understood that the question before it was only one relating to the date of commencement of period of limitation for filing an application under Rule 95 of Order XXI of C.P.C.  The view taken by the Andhra Pradesh High Court that the period commences from the date of issuing the sale certificate was reversed.  That alone is the ratiodecidendiof that case.

18.  Thereafter the Apex Court proceeded to pass a remark in the next paragraph that was quoted by the learned single Judge in Aravindakshan Nair N.G. and Ors. v. Binoy Kurian(2017(3) KLT 135),

“There can be a variety of factors conceivable by which delay can be caused in issuing the sale certificate. The period of one-year limitation, now prescribed under Art.134 of the Limitation Act, 1963, in substitution of a three-year period prescribed under Art.180 of the Indian Limitation Act of 1908, is reflective of the legislative policy of finalizing proceedings in execution as quickly as possible by providing a quick forum to the auction purchaser to ask delivery of possession of the property purchased within that period from the date of the sale becoming absolute, rather than from the date of issuance of the sale certificate. On his failure to avail of such quick remedy the law relegated him to the remedy of a suit for possession in a regular way.”

19. The above said paragraph is not the ratio decidendiof the decision because, question of maintainability of a suit was not a matter in issue before the Apex Court or necessary for the decision already taken regarding the date of commencement of period of limitation for an application under Rule 95 of Order XXI of C.P.C. It was only a passing comment amounting to a mere ‘obiter dictum’.  The question of maintainability of a suit for recovery of possession at the instance of an auction purchaser,was not at all the question involved in that case or necessitating adjudication.  If the only sentence in the said paragraph, “On his failure to avail of such quick remedy the law relegated him to the remedy of a suit for possession in a regular way”, is construed as a ratio decidendiof that decision, then it was rendered without considering the well settled law in Harnandrai Badridas v. Debidutt Bhagwati Prasad(AIR 1973 SC 2423), by a three-Judge bench and the decision of Supreme Court in Ganapat Singh (Dead) by LRs v. Kailash Shankar reported in
AIR 1987 SC 1443 and hence per incuriam.Support is taken from the decision in Union of India and Ors. v. Dhanwanti Devi and Ors.,reported in (1996 (2) KLT OnLine 1111 (SC)  where it was held that a conclusion does not constitute precedent. If a co-ordinate Bench disagrees with the view of an earlier co-ordinate Bench, the only course open to the former is to refer the matter to the larger Bench. A judgement of such co-ordinate bench is per se per incuriam.

20.  A Constitution Bench of the Supreme Court in Shah Faesal and Ors. v. Union of India and Ors.reported in (2020 (2) KLT OnLine 1105 (SC)) held that the principal difference between the ratio of a case, and the obiter, has been elucidated by a three-Judge Bench decision of the Supreme Court inUnion of India v. Dhanwanti Devi (1996 (2) KLT OnLine 1111 (SC)) and quoted,

“It is not everything said by a Judge while giving judgment that constitutes a precedent. The only thing in a Judge’s decision binding a party is the principle upon which the case is decided and for this reason it is important to analyse a decision and isolate from it the ratio decidendi. A decision is only an authority for what it actually decides. The concrete decision alone is binding between the parties to it,but it is the abstract ratio decidendi, ascertained on a consideration of the judgment in relation to the subject matter of the decision, which alone has the force of law and which, when it is clear what it was, is binding. It isonly the principle laid down in the judgment that is binding law under Article 141 of the Constitution.”

21.  The Privy Council in Punjab Co-operative Bank Ltd. v. Commissioner of Income Tax, Lahore(AIR 1940 P.C. 230) held,  “... every judgment must be read as applicable to the particular facts proved or assumed to be proved, since the generality of the expressions, which may be found there, are not intended to be expositions of the whole law, but governed or qualified by the particular facts of the case in which such expressions are to be found.”

22. In another Judgement K.R.Lakshminarayana Rao v. New Premier Chemical Industriesreported in ((2005) 9 SCC 354),the Supreme Court considered the question of maintainability of a suit filed by an auction purchaser for declaration of title and recovery of possession upon his failure to make an application under Order XXI Rule 95 of C.P.C.  In execution of a decree for realisation of money, plaintiff decree holder himself purchased the suit property in the year 1972. The auction sale was confirmed in the year 1973. The auction sale was under challenge and finally the appeal arising from the executions application was dismissed in 1974. The sale certificate was issued in favour of the plaintiff/auction purchaser on 28.11.1980. The plaintiff/auction purchaser did not take any step to obtain delivery of possession of the said property within a period of one year in terms of O.XXI R.95 of the Code of Civil Procedure (C.P.C.). In the year 1998, the plaintiff/auction purchaser respondent filed a fresh suit praying for declaration of title and possession of the suit property, which was dismissed by the Trial Court.Before the Trial Court an objection was raised by the appellant to the effect that the suit was barred under S.47 whereupon a specific issue was framed, “Whether he proves that S.47 C.P.C. is a bar for this suit?”. The said issue was determined in favour of the defendant and against the plaintiff. The first appellate court affirmed the aforementioned finding. The High Court, relying on and on the basis of the decision in the case of Nandarani Mazumdar v. Indian Airlines (1983) 4 SCC 461:
AIR 1983 SC 1201) as also the decision in the case of M.C.Subbanna v. Nanjamma (1972 (1) Mys.LJ 183 : AIR 1972 Mys.190) held that even if the suit was not maintainable, the Court had ample power to direct that the plaint be treated as an application filed by the plaintiff under O.XXI R.95 C.P.C.  After considering the rival contentions, the Supreme Court considered the maintainability of the suit and held as follows:

“A bare perusal of the aforementioned provisions would leave no manner of doubt and in particular having regard to the amendments carried in C.P.C. by reason of the C.P.C. Amendment Act, 1976 that the steps for obtaining delivery of property in occupancy of the judgment debtor is required to be taken by the auction purchaser in terms of O.XXI R.95 C.P.C. and, thus, a separate suit to enforce such a right would, therefore, be not maintainable.”

It was also held that once the decree stands satisfied, the execution proceedings come to a end and in that view of the matter, a proceeding in the nature of one contemplated under O.XXI R.95 C.P.C. is required to be initiated for the purpose of obtaining delivery of possession of the property purchased in Court auction by the decree holder and such an application must be filed within the prescribed period of limitation as provided for under Art.134 of the Limitation Act, 1963.

23.  The above reported judgement also was not brought to the notice of the learned Single Judge while deciding the caseAravindakshan Nair N.G. and Ors. v. Binoy Kurian.The judgement in K.R.Lakshminarayana Rao v. New Premier Chemical Industriesreported in (2005) 9 SCC 354 is the binding authority from the Supreme Court on the question of
maintainability of suit by an auction purchaser for declaration of title and recovery of possession after the commencement of the amendment Act No.104 of 1976.

24. In view of the above it has to be understood that the decision in Pattam Khader Khan v. Pattam Sardar Khan (1996 (2) KLT SN 42 (C.No.47) SC) is not the authority on the
question of maintainability of a suit for recovery of possession or declaration of title at the instance of an auction purchaser, but  legal position settled in Harnandrai Badridas v. Debidutt Bhagwati Prasad (AIR 1973 SC 2423), by a three-Judge Bench continues to hold the correct legal position and binding precedent that such a suit is not maintainable even after the commencement of Act No.104 of 1976.Through the judgement in Ganapat Singh (Dead) by LRs. v. Kailash Shankar reported in (AIR 1987 SC 1443), the Apex Court affirmed that the said legal position continues even after the Act No.104 of 1976, without any change. The decision in K.R.Lakshminarayana Rao v. New Premier Chemical Industries reported in ((2005) 9 SCC 354) is the latest authority on the question.  Therefore the view taken by the High Court of Kerala inAravindakshan Nair N.G.and Ors. v. Binoy Kurian (2017 (3) KLT 135) does not lay down the correct legal position and it is to be reconsidered in appropriate cases in the light of the legal position settled in Harnandrai Badridas v. Debidutt Bhagwati Prasad (AIR 1973 SC 2423),Ganapat Singh (Dead) by LRs v. Kailash Shankar reported in (AIR 1987 SC 1443) andK.R.Lakshminarayana Rao v. New Premier Chemical Industries ((2005) 9 SCC 354), which are the binding precedents and the law laid down by the Supreme Court under Article 141 of the Constitution.

The 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.

The 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,
                                                                   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 (II^nd 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.