Indian Penal Code & Code of Criminal Procedure: Recent Landmark Judgements

Khushi Lunawat

Judiciary being one of the most important organs of the government, deals with a major function of setting and stabilizing, Indian legal system by setting up of judicial precedents.

This article contains five major judgment declared by the Indian Supreme Court, related to some of the provisions of IPC and CrPC, in past 5 years (2015-2020). Some of the case laws referred in this article has set up an exemplary remark not only for future generation of India but for the entire world.

India being a largest democracy and having the lengthiest constitution, is still not as tangled as it seems and the credit for this can be given to all the organs of the government and to the citizens of this country.

CASES

CBI v. M. Sivamani, (2017) 14 SCC 855

Facts

In this case, CBI filed a charge sheet, in relation to the claim in Motor Accident Claim Tribunal (MACT), where the individual was seeking compensation of Rs 22, 00,000/- for the death of Mohamed Farooque in a road accident on October 11, 2002.  Later on, the motor accident claim tribunal reduced the claim amount to Rs 14, 97,000/-.

It was alleged by the respondent that after colliding with the auto-rickshaw, the deceased died but the individual died, after falling from the scooter himself. The National Insurance Corporation filed an appeal before the Madras High Court, ordering the Police-Branch Crime Investigation Department [‘CB CID’] to investigate.

A charge-sheet was presented by the CB CID. Later, the matter was taken over by the Central Bureau of Investigation [‘CBI’] and a charge-sheet was filed. Under Section 182 of the IPC, the respondent, an advocate, was charged with misrepresentation and providing false proof.

The respondent claimed that, pursuant to Section 195(1)(a)(i) of the CrPC, it is prohibited for the courts to take cognizance of offences pursuant to Section 182 of the IPC, unless the public servant concerned or his administrative superior has lodged a written complaint. It was argued that standardized specifications were not met. The High Court ruled in the respondent’s favor. The Supreme Court did, however, overturn the judgment of the High Court.

Issues

1. Whether High Courts come under the criteria of public authority or not?
2. Interpretation section 195(1)(a) in cases where the victim is remediless

Law/Rule

1. Section 195(1)(a)(i) of CrPC,
2. Section 182 of IPC,
3. 120B of IPC

Analysis/Application

The Supreme Court relied on the judgment of the Iqbal Singh Marwah constitutional bench, which held that it is appropriate to discard any interpretation that makes the victim remediless.

The Supreme Court also relied on the Perumal v. Janaki case, which held that if the High Court orders the complaint to be lodged, the bar pursuant to Section 195(1)(b)(ii) would not apply.

The Court pointed out the purpose behind this section, which is to prevent a private citizen from conducting false proceedings. The High Court’s order to order the inquiry was held to be equal to a lawsuit lodged by an administrative superior.

Conclusion

This judgement of Supreme Court can be criticized on many grounds. Firstly, a complaint under Section 195(1)(a) of the CrPC must be lodged by a public servant or by an administrative superior of that public servant.

This necessary requirement does not correspond to the High Court. For the purposes of this section, the words “Court” and “public servant or its administrative superior” are distinct and do not overlap. Further, pursuant to section 21 of IPC, the term ‘public authority’ does not include ‘Courts’ per se.

Secondly, the victim was not remediless as, section 120B was applicable. Thirdly, article 142 of the Constitution, states that the substantive procedure set by one statute cannot be ignored by another. This case, is a case of professional misconduct and should have been dealt by disciplinary committee of Bar Council.

Subramanian Swamy v. Union of India, (2015) 13 SCC 256

Facts

As provided for in Sections 499 and 500 of the Indian Penal Code and Sections 199(1) to 199(4) of the Criminal Procedure Code, 1973, several petitions were filed pursuant to Article 32 of the Constitution of India questioning the constitutional validity of the offense of criminal defamation. Several of the petitioners are politicians who have been charged with criminal defamation, such as Subramanian Swamy, Rahul Gandhi and Arvind Kejriwal. They challenged the constitutionality of the criminal defamation offense, arguing that their right to freedom of speech was hindered.

Issue

1. Whether the offense of criminal defamation is violative of article 19(1)(a)?

Law/Rule

1. Section 499 and 500 of IPC,
2. Section 199(1) to 199(4) of CrPC,
3. Article 19(1)(a) of Indian Constitution.

Analysis/Application

The court studied the significance and relationship of the words’ slander ‘and’ reputation ‘with the right of freedom of speech and expression. The Court, having reviewed the different authorities, found that the word was plain and unambiguous.

The Court also found that in the defense of ‘dignity,’ which was part of the constitutionally guaranteed right to life, the definition of ‘reputation’ was included. The Court also acknowledged the dignity and value of democracy’s right to freedom of speech and expression, but pointed out that it is subject to fair restrictions.

The public interest should be protected by such limitations and should not be unreasonable in nature. Legislation that enacts limits does not violate rights and should not be arbitrary.

The balance to be achieved should measure the value of freedom of expression for democracy against the social meaning of the protection sought for the public interest. Legislation that enacts restrictions does not violate rights and should not be arbitrary.

The balance to be achieved should measure the value of freedom of expression for democracy against the social meaning of the protection sought for the public interest.

In addition, the Court discussed the issue of whether the rules on criminal defamation contradict the principle of ‘reasonableness’ by reviewing whether it is ambiguous, or unreasonable or excessive, either substantively or procedurally.

Examining the four explanations contained in the Penal Code section on defamation, the Court concludes that these were neither unclear nor ambiguous. The Court observes that an imputation may only be viewed as defamatory if, in the judgment of others, it explicitly or indirectly reduces the character or credit of an individual.

Conclusion

The reasonableness and proportionality of a restriction shall be examined from the point of view of the general public’s interest and not from the point of view of the person to whom the limitation is imposed.

The Court judged the criminal defamation laws to be proportionate in enforcing this requirement. The Court dismissed the argument that defamation is simply a majority concept designed to impair freedom of speech and expression as too vague a proposal to be regarded as a guiding principle in order to assess the reasonableness of a limitation.

Navtej Singh Johar v. Union of India, (2018) 10 SCC 1

Facts

In the present case, the petitioner, Navtej Singh Johar, a dancer who has been described as a member of the LGBT community, submitted a written petition seeking recognition of the right to sexuality, the right to sexual integrity and the right to choose a sexual partner as part of the right to life guaranteed by Article 21 of the Indian Constitution.

The petitioner also pleaded that Section 377 violated Article 14 of the Constitution because it was ambiguous in the sense that “carnal intercourse against the order of nature” was not specified. There was no intelligible distinction or rational classification of consensual sex between normal and unnatural.

The respondent, Union of India, submitted that the issue of the constitutional validity of Section 377 (as it applies to the consent of adults of the same sex) had been left to the “wisdom of the Court”.

Some interveners, claiming that the right to privacy was not unbridled, protested against the petitioner that such actions were derogatory to the’ constitutional principle of dignity’, that such actions might increase the prevalence of HIV/AIDS in society and that it would be harmful to the institution of marriage to declare Section 377 unconstitutional and that it would violate Article 25 of the Constitution (Freedom of Conscience and Propagation of Religion).

Issue

1) Whether Section 377 of IPC is unconstitutional.

Law/Rule

1. Section 377 of IPC.
2. Article 14, 21, 25 of Indian Constitution

Analysis/Application

The Indian Supreme Court, unanimously held that Section 377 of the Indian Penal Code, 1860 (Section 377) was unconstitutional in so far as it referred to consensual sexual behaviour between adults privately.

With this, in Suresh Koushal v. Naz Foundation, which had upheld the constitutionality of Section 377, the Court overruled its decision. In addition, the Court also relied on its decisions in Shafin Jahan v. Asokan K.M and Shakti Vahini v. Union of India, to reaffirm that the right of an adult to “choose a life partner of his or her choice” is a facet of individual freedom.

Conclusion

This Supreme Court’s decision, which scrapped a 158-year-old draconian law, will be marked as exemplary remark on the entire world by the Indian Judiciary.

Joseph Shine v. Union of India, (2019) 3 SCC 39.

Facts

Joseph Shine, Keralite, a non-resident, filed public interest litigation under Article 32 of the Constitution. In compliance with Section 497 of the IPC, read in Section 198(2) of the Criminal Procedure Code, 1973, the petition questioned the constitutionality of the crime of adultery.

Section 497 IPC criminalized adultery: it put blame on a man who associates with the wife of another man in sexual intercourse. With a maximum imprisonment of five years, adultery was punishable.

Women were excluded from prosecution, however. When a married man engaged in sexual intercourse with an unmarried woman, section 497 IPC was inapplicable. CrPC set out in Section 198(2) how a complainant can file charges for offences committed under IPC Sections 497 and 498.

Section 198(2) CrPC stated that the complaint for the crime of adultery can only be lodged by the husband. The Court tested the consistency of the precedents – Yusuf Abdul Aziz, Sowmithri Vishnu and V. Revathi – which had upheld Section 497 as constitutionally valid in the past.

Issue

1. Weather the section 497 of IPC is constitutionally valid?

Law/Rule

1. Section 497 of IPC.
2. Section 198(2) of CRPC.
3. Section 302 of IPC

Analysis/Application

It was pointed out in the entire judgment that the essence of section 497 is vague. As a husband, his permission may be given to allow his wife to have an affair with some other man. Therefore,’ the sanctity of marriage’ is not covered by this provision.

This segment maintains the husband’s exclusive rights that he has over his wife. The wife is not permitted to file a petition against her husband in this section. There is no clause in this section that deals with a married person having an affair with unmarried women. The court has also upheld the principle of, “Husband is not the master of his wife”.

Hence, Section 497 is struck down as being unconstitutional, violating Articles 14, 15 and 21 of the Constitution. Also, CrPC section 198(2) which deals with the proceedings for prosecution referred to in Chapter XX of the IPC are illegal only to the degree that they are relevant to the crime of adultery referred to in Section 497.

The court also held, that section 302 (abetment to suicide) is exception to this decriminalisation, i.e. if the act of adultery of one partner, becomes the reason of suicide for the other partner, than adultery will be criminalised.

Conclusion

It should be remembered that the absence of such clauses does not mean that adultery does not have any legal implications. These effects need not be criminal, and in civil law, where adultery already has a position, a solution can be sought. In personal legislation, it is a basis for divorce. Such an approach is therefore in line with the right to privacy and does not entail an extension of resources by the State.

In addition, Cruelty, under section 498A, will cover the mental trauma caused to a woman by the adulterous relationship of a husband, along with the definition of domestic violence under the Domestic Violence Act, 2005.

Independent Thought vs. Union of India, (2017) 10 SCC 800.

Facts

The petitioner is a society registered on 6 August 2009 and has worked in the field of children’s rights since then. The corporation has lodged a petition in the public interest pursuant to Article 32 of the Constitution, with a view to drawing attention to the infringement of the rights of girls married between the ages of 15 and 18.

According to the petitioner, Section 375 of the IPC prescribes the age of consent for sexual intercourse as 18 years, meaning that even if the sexual activity was with her consent, any person having sexual intercourse with a girl child under 18 years of age will be statutorily guilty of rape.

Unfortunately, by virtue of Section 375 of Exception 2 of the IPC, if a girl is married and is between the age of 15 and 18, her husband may have non-consensual sexual intercourse with her without being penalized under the IPC solely because, for no other reason, she is married to him. The right of such a girl to have bodily integrity and to refuse to have sex with her husband.

Issue

Whether, in the case of girls between the ages of 15 and 18, Exception 2 to Sec 375 of the Indian Penal Code is liable to be struck as violating Articles 14, 15 and 21 of the Constitution?

Law/Rule

1. Section 375(Exception 2) of IPC.
2. Article 14, 15 and 21 of the Indian Constitution.
3. Section 198(6) of CrPC.

Analysis/Application

The court held that, in so far as it applies to a girl under 18 years of age, Exception 2 of Sec 375 IPC is worthy of being struck down as it is violative of articles 14,15,21 of the constitution of India and is also inconsisted with the provisions of POSCO Act. The court also held, that Section 198(6) of CrPC, is applicable to the rapes of ‘wives’ below 18 years and cognizance can be taken for the same.

Conclusion

A marriage in India with a girl under the age of 18 is punishable (only voidable) under the PCMA. But if a girl’s husband is committing penetrative sexual assault on his wife, he is potentially committing aggravated penetrative sexual assault punishable by Sec 6 of the POSCO Act.

IPC, however, makes sexual intercourse with one’s wife under 18 years of age not punishable by virtue of Exception 2 to Sec 375, and an exception to the crime of rape. The two clauses were conflicting in nature and the same issue had to be fixed.

Conclusion

Although, the IPC is still considered as the British made law, but its obligation to take the authority only from the India Constitution, clears all the doubts, which people have on its capacity, to be sustainable in India. There are many draconian provisions in IPC, but the Indian judiciary is trying to amend or revoke them as the situation needs.

On the other hand, CrPC being the go-to guide of IPC is also being amended as per the need of the hour.

As, mentioned in the introduction, India is having the largest democracy with changing of religion, it is not that possible to adhere to all the demands and fancies of the citizens but the government is trying their level best to meet all of them.

Upholding free speech, Decriminalisation of adultery and homosexuality, interpreting various other provisions of IPC and CrPC, etc., can be considered some steps towards making India a happy and legally stable country.