WRITTEN BY- Richa Shukla
By reconsidering constitutional validity of section 497 IPC generally read with section 198 CrPC , the Supreme Court has proffer yet another example that laws must go harmoniously with the current moment. Codes and law formulated in the nineteenth century have to be amended with the present age. While section 497 IPC provides for prosecution of the man in an adulterous relationship with a married woman and lets off the woman who is otherwise an equal participant in the extra-marital relationship, section 198 of CrPC allows the aggrieved husband of the married woman in adulterous relationship to file a complaint and not to the aggrieved wife of the man in adulterous relationship.
The Supreme Court in the recent petition by Mr. Joseph Shine said that “A time has come when the society must realise that a woman is equal to a man in every field. This provision, prima facie, appears to be quite archaic. When the society progresses and the rights are conferred, the new generation of thoughts spring.” Why only men are culprit when there is equal participation of woman in the case of adultery, is a question to think upon. The point that man is being considered the offender while the equally guilty woman is surmised to be the victim for the reason that she is a woman seems purportless and obsolete.
Article 15(3) of Constitution of India is often proposed as a rebuttal, according to which the state shall not be prevented from making any kind of special provision for women; a deeper analysis serves us with the objective of the framers. The reference was to those provisions which shall uplift the status of the women in the society and improve her condition or promote reservation to strengthen her in male dominating society. It could definitely not mean to formulate a device for getting away from being punished when the guilt is of same amount as that of a man.
Howsoever tricky it may sound, but the fact of the matter is that section 497 IPC read with Section 198 CrPC provides only the husbands the right to initiate a case against the adulterer of her wife. The wife has no such right as remedy if her husband commits adultery with either a married adultery woman or an unmarried girl. Empowering women seems illusionary.
Another point to ponder is the gender discriminatory nature not facilitating women empowerment. Further, not punishing wife cannot be expected to result into peace and harmony between her and her husband, thus the conflict remains in disguise.
Where parliament have legislated almost half a century statute to dignify women, ‘Sec 497 IPC creates a dent in the individual independent identity of a woman when the emphasis is laid on the connivance or consent of the husband. This tantamount to subordination of a woman where the Constitution confers (women) equal status’, as declared by Supreme Court on Friday.
The patronizing language of Sec 497 IPC dismantles the very objective since the “fulcrum of the offence is destroyed” once the consent or the connivance of the husband is established.
Besides this, does having an intercourse with an unmarried woman or a widow makes him less guilty of breaching his wife’s trust? Another loophole which stays untended.
Let us examine the reasons which resulted into the section not finding a place in the initial draft of IPC by Macaulay on the advice of three presidencies.
Marriage involves two persons and at most two families and the state does well to stay out of it unless either of the parties approaches it for the reasons of domestic or dowry violence or for civil remedies like mediation, divorce and maintenance. Adultery is at best a violation of the terms of agreement between a married couple. Hindu marriage act 1956, provides the remedy of judicial separation and divorce when the wife or husband is involved in adulterous act. Giving them the option of pursuing criminal proceedings is uncivil and any catharsis for the wronged party is illusory. Imprisoning for 5 years for a moral defect moulded as a criminal act is not only barbaric, it’s rather a penance to the family and children who suffer the loss and face social stigma.
While we wait for the justification from central government, counting lacunae is just an attempt to fathom out the issue. Rather than split hairs over making it gender just, it is time to be one with western countries and reckon scrapping adultery from Indian Penal Code.
Aishwarya Sudhir (B.A.ll.b(H) 4th yr) Central University of South Bihar
It’s been long since the concept of Zero FIR has been evolved, and several articles have been published on this concept. If recalled the same was also explained and dealt in the very famous movie “PINK”. Hence, instead of talking about what the concept is, I would like to express it in a bit different context, through my words against the misuse of power that is given to us and the loop holes in executing them.
What is FIR? FIR is the first information report about the crime or incident that took place. FIR gets lodged in the station which comes under the territorial jurisdiction where that incident/ crime has taken place. FIR is a very important document and record because it puts up the case for motion. It can be recorded in oral or written with the signatures of the Police official recording it and the complainant.
Now coming to the concept of Zero FIR, it is same as the FIR with the only basic difference that no territorial jurisdiction is defined for filling zero FIR. It can be lodged in any of the police station, irrespective of the jurisdiction of the crime scene. Zero FIR is basically designed for the ease of the victim.
Legality of zero FIR
The provision of Zero FIR was introduced in the recommendation of Justice Verma Committee Report in the new Criminal Law (Amendment) Act, 2013, devised after the December 2012 Delhi gang rape of a 23-year-old girl in the territory.
However, policemen by and large deny knowing about provisions of “Zero FIR” and direct the complainant to Police Station having jurisdiction but Clause (e) of Section 460 of the Criminal Procedure Code (CrPC) says that if any Magistrate not empowered by laws to call for cognizance of an offence positioned in section 190 (a) or (b) erroneously but in good faith does take cognizance, the proceeding minutes will not be set aside merely on the grounds of not being empowered for same. If at the time of initiation of FIR, it looks evident that the crime was committed outside the jurisdiction of the concerned police station, then the police must be appropriately ordered to register a Zero FIR, and ensure that the FIR is transferred to the jurisdictional police station. If there is a failure in compiling with the instruction of FIR registration on the acknowledgement of information about the offence, it will invite prosecution of the police officer under section 166A which provides a rigorous imprisonment of six months is extended upto two years. This evasion of responsibility may invite the departmental action for the police officer.
Need of Zero F.I.R.
Incidents like accident, murder, and rape require immediate action from the concerned authorities and rush to take samples, getting information from eye witnesses and getting circumstantial details. And delay in investigation can distort the witnesses. A zero F.I.R. helps to take immediate actions regardless of the territory where the crime or offence has taken place.
Undue advantage of Zero FIR
Despite of all the benefits of Zero FIR, there are circumstances where the concept has been misused and the Victim had got to suffer. It could be that the facts have been manipulated by either of the party in their own interest with the help of Police, out of relationship/ financial benefits.
In the case of Bimla Rawal and Ors. Vs. State (NCT of Delhi) and Anr, FIR was lodged in Delhi, despite the fact that all incidents occurred in Mumbai. Writ Petition was filed in Supreme Court regarding the mala fide intentions of police succumbing under the pressure of opposite party. Supreme Court quashed the FIR filed at Delhi and ordered to file a fresh FIR in Mumbai. In this case the police misused the power of filing a Zero FIR at the behest of the opposite party.
The Zero F.I.R. looks like a great concept in seeking a way to ameliorate criminal justice in a preliminary stage and deciding on the gulp of truth. As I have named my article as “Zero FIR Boon and Curse”. The Concept can be a Boon for us if it is monitored properly and there is awareness within the Society. This can be monitored if a committee is formed which also includes an ordinary citizen for scrutinizing the whole FIR instituting process with the extended support of Government and Police.
India is one of the largest democracy in the world and it also enjoys the benefit of having the longest written constitution in the world. The constitution thus, provides a number privileges on its citizens and non-citizens by way of fundamental rights, directive principles of state policy, writ petitions etc. Apart from providing various privileges it also acts as a custodian of those rights and grants every individual of the country an opportunity and freedom to move the judiciary as and when needed in order to seek redressal. The judiciary acts an independent authority who looks into the executive failures and also secures the liberty provided to the people of the nation. Every citizen of the country has been granted with certain fundamental rights relying on which he can challenge any act of the Parliament which debars him from his exercising those rights. It is with the help of the judicial interpretations that the provisions of the Constitution were simplified for the citizens and they were given a new dimension to suit the need of the changing times and society. Thus, every person who is aggrieved by the decision of the administrative or executive body and believes that his rights have been infringed can approach the judiciary for the enforcement of his rights. The Constitution has conferred the judiciary with writ jurisdictions under which it can protect the rights of an individual and can also enforce those rights in the event of infringement. The High Court and the Supreme Court have been vested with the writ jurisdiction under Article 226 and Article 32 of the Constitution respectively. The writs are basic mechanism to protect and preserve an individual’s freedom against the arbitrary and lawless action of the executive and administrative authorities of the State and also to prevent the failure of justice.
Article 32 clause (2) empowers the Supreme Court to issue orders or writs or direction for enforcing any rights guaranteed to an individual under Part III of the Constitution. The Supreme Court can issue writs in the nature of Habeas Corpus, Mandamus, Prohibition, Quo-Warranto and Certiorari. Article 32 apart from vesting writ jurisdiction on the Supreme Court is itself is a fundamental right and provides constitutional reliefs for a citizen whose fundamental rights have been infringed. The jurisdiction of the Supreme Court extends to the whole of India but it cannot issue these writs against any administrative decision which in breach of the ordinary law.
High Courts can issue these writs within its territorial jurisdiction under Article 226. The High Courts enjoy a wider scope in terms of writ jurisdiction when compared with the Supreme Court. Unlike, the Supreme Court, the High Courts can issue any writs for the enforcement of fundamental rights and also for any other action of the administrative which is against the law.
The High Courts and the Supreme Court can both issue the writ of Habeas Corpus. The term ‘Habeas Corpus’ is a Latin term which means ‘to have the body’. It works as a channel to probe and keep a check on the illegalities that are committed on an individual’s body under the head the unlawful confinement or detention. Any individual who has been detained or confined unlawfully then in such a situation any person, or the relatives or friends of such a person other than a stranger can approach the court by filing the writ of Habeas Corpus. The writ of Habeas Corpus is available only in the cases where the detention is illegal and it is at the discretion of the Court whether the writ will be issued or no. The main purpose of this writ is to provide expeditious relief to the person who has been detained unlawfully in prison or in private custody. The detention becomes unlawful when a person who has been arrested is not produced before the magistrate within 24 hours of his arrest or when the law under which the person is being detained is in itself unlawful then the detention automatically becomes unlawful. Article 21 of the Constitution guarantees to all the persons within the territory of the country Right to Life and Liberty and it specifically states that no person shall be deprived of his personal life and liberty except without the due process of law. Thus, the writ of Habeas Corpus can be availed when a person is deprived of his personal liberty without following the proper procedure established by law. Under this writ the Court directs the prison officer or the prison authority to produce the detained person before it and to liberate the prisoner if the court has reasons to believe that the detention of such person was without a valid cause or the detention of such person was illegal or unlawful.
The writ of Habeas Corpus is available in the following situations:
Habeas Corpus basically is an order wherein the court questions the detaining authority about the grounds of detention or confinement and in situation where there is no legal justification for the same, the court orders to set free the detainee. For the purpose of this writ, no physical detention is necessary mere custody and control are sufficient.
However, this writ cannot be issued in the following circumstances:
The burden of proof to prove that the detention in question is illegal lies on the petitioner and thus if the person fails to prove that the detention was unlawful his is not entitled to be set free. However, no person can present continuous application for habeas corpus for different judges of the same court. But, this does not restraint or stop a person from filing a fresh petition under Article 32 in the Supreme Court. Any act of disobedience of this writ is to be met with the punishment for the Contempt of Court.
The sole purpose of this writ is to grant liberty to an individual in case of illegal and unlawful detention and not to punish the wrongdoer. However, the person who is released from the detention on grounds of illegal detention can separately proceed against the wrongdoer in an appropriate lawful manner. The main feature that distinguishes this writ from the other writs is that it can be issued not only against State authorities but also against private individuals and organization.
Thus, the writ of Habeas Corpus acts as custodian of liberty and individual’s body against unlawful and illegal detention. It basically, provides the remedy by which a person can set himself free in the event of illegal detention.
Held, physical abuse, verbal abuse, emotional abuse and economic abuse can all be by women against other women – Even sexual abuse may, in a given fact circumstance, be by one woman on another.
Hiral P. Harsora Vs. Kusum Narottamdas Harsora
(2016) 10 SCC 165: AIR 2016 SC 4774.
Bench Stenghth – 2.
Coram: Kurian Joseph and R.F. Nariman, JJ.
Date of decision: 6-10-2016
ADV. MAHESH VASWANI,
Good faith in Criminal Law has totally different aspect. Scholars view it as both positive and negative impacts. Good Faith as defined in Indian Penal Code Section 52 as ‘Nothing is said to be done or believed in “good faith” which is done or believed without due care and attention.
Therefore according to definition Good Faith means what is to be done with due care and attention. Actual meaning and interpretation of good Faith has been best describe by apex court in the ruling of R.Karruppan vs. unknown in 2004 this case was also the contempt case where deciding bench faced various allegation made by the petitioner. Moreover the case involves the question of irregularity in the Rifle board. Coming back to the interpretation given by the Apex Court of Good Faith which is as follows-
“good faith” is what is done with “due care and attention”. Due care denotes the degree of reasonableness in the care sought to be exercised. So, before a person proposes to make an imputation, he must first make an enquiry into the factum of the imputation which he proposes to make. It is not enough that he does just a make-believe show for an enquiry. The enquiry expected of him is of such a depth as a reasonable and prudent man would make with the genuine intention in knowing the real truth of the imputation. If he does not do so he cannot claim that what he did was bona fide i.e. done in good faith. Thus, a contemner, if he is to establish “good faith” has to say that he conducted a reasonable and proper enquiry before making an imputation
Here imputation was on the bench competency and of being corrupt but keeping the case aside when we view it in genral perspective then we will get real essence of Good Faith that term good faith must accomply truth where there is no truth there is no good faith if one is alleging on someone then he must have full proof for that and at last due to lack of evidence he cannot take the defense.
Let’s see the positive side of Section 52 IPC that is good faith. In The Judicial Officer Protection Act,1850 Section1 it is mention that there is no liability of any suits of officers acting judicially, for official act done in good faith, and of officers executing warrants and orders. Here the term good faith plays an important part as it provides a constitutional protection to the people who do their act of not allegation but of punishment this section also enshrined the independent judiciary. Good faith also protecting not only judicial Officers but police officers. Moreover, a case of Sukaroo Kaviraj where he was surgeon booked under 304 IPC as he negligently performs his surgery so by taking the plea of Good Faith he was not safe and this also gives stand on Good Faith that not only intention but due care is the sole quality for it.
Section 52 IPC also provides for the stoppage of medical mal practice A physician can be charged with criminal negligence when a patient dies from the effects of anesthesia during, an operation or other kind of treatment, if it can be proved that the death was the result if malicious intention, or gross negligence. Before the administration of anesthesia or performance of an operation, the medical man is expected to follow the accepted precautions.It has long been recognized that criminal liability of a physician may result from a high degree of negligent conduct. What the law calls criminal negligence is largely a matter of degree; it is incapable of a precise definition. To prove whether or not it exists is like chasing a mirage. It requires that any of the following to be established in a case of criminal medical negligence(mentioned in Hampton vs State)
Negative vibes for Good Faith is also present which includes itself as a defense plea where the act done negligently then also the plea in taken. Most cases of this issue is raised in culpable homicide case of not amounting to murder and amounting to murder too.Some plea of defence is taken under the curtain of mistake of fact.However there are some exceptions to it that public servant while performing his duties any death occurs then it will be a culpable homicide not amounting to murder.
Expression in good faith of any opinion respecting the conduct or character of a public servant, in the discharge of his public duties, respecting the conduct or character of any person touching any public question, respecting the merits of any case decided by a court or of conduct of witnesses and respecting the merits of any performance of an author, censure passed in good faith by person having lawful authority over another, accusation preferred in good faith to an authorized person, imputation made in good faith by a person for protection of his or other’s interests and caution conveyed in good faith for the good of the person to whom conveyed or for public good.
Where in a rape case from the evidence on record, it is clear that the accused is not named in the FIR and he is living at a place miles away from the house of the victim, and he is not arrested from the spot in the presence of the witness and the accused was not known to the witness previously, it cannot be said that the matter regarding the identification of the accused was beyond any doubt especially in the view of the persistent stand taken by the victim that she remained unconscious for five days from her alleged kidnapping. In such a fact situation of test of identification parade is needed to fix the identity of the culprit.FIT
The girl of 13 years of age was raped at a time when there was light at the place of occurrence. The girl had recognised the man who had committed ghastly crime upon her. In the circumstances it could be said that identity of the accused stood amply established. The conviction was held proper. The vaginal discharge and blood was present on clothes worn by victim and the accused clothes when chemically examined indicated the fact that rape was committed. The accused was convicted.
The girl was lifted from her house taken to field where she was raped and was found in totally naked condition in field on following day morning. The conviction of the accused was held proper. Accused raped niece of his wife but keeping in mind the fact that she was living in family since her childhood the sentence was reduced to one year with a fine of Rs 1000. In the Supreme Court case accused teacher committed rape on his own student who became pregnant at the age of 14 years only. Victim’s mother was not literate and victim had just passed class there in third attempt. The Court held that to examine their evidence with microscope approach would be an insult to the justice oriented judicial system. Conviction on this ground held proper. The accused was charged to have raped the girl of eleven years and identification parade to fix the identity of accused was held but certain infirmities in holding the test were found by the magistrate as appropriate dummies falling within the age group of accused and having similar physique could not be procured. Here identity of accused as offender could not be established. It was held that the accused was liable to be acquitted.
 Md. Saleem v. State (Delhi Administration), 1992 CrLJ 1959 (Del)
 State of M.P. v. Sunder Lal, AIR 1992 SC 1413
 S. Jai Singh v. State, 2004 CrLJ 3598 (Mad)
 Prasanta Kumar Sahoo v. State of Orissa, 2004 CrLJ 3501 (Ori)
 State v. Mohan Shankarrao Janrao, 2004 CrLJ 3998
 State v. Shree Kant Shekari, 2004 CrLJ 4232
 State of Gujrat v. Mahmad alias Munno Usmanbbhai Chauhan, 1996 CrLJ 3400 (Guj)
To prove that the accused is the murderer is one of the most difficult tasks faced by a criminal lawyer. The mood of proof may take diverse forms, it may be by both direct evidence and circumstantial evidence. It may be through dying declaration, confession, evidence of near relations and so on. One or more modes of proof may be telescoped in a particular case. it may be borne in mind that burden of proving the case initially is on the prosecution which must prove it beyond reasonable doubt.
However, if the other parameters of the offence stands established, then the plea of non-discovery of the dead body of the victim is of no consequence in proving the corpus delicit in murder.
As stated by Phipson on Evidence in Criminal Cases the prosecution discharge their evidential burden by adducing sufficient evidence to raise a prima facie case against the accused. If no evidence is called for the defence the tribunal of fact must decide whether the prosecution has succeeded in discharging its legal burden by proving its case beyond a reasonable doubt. In the absence of any defence evidence, the chances that the prosecution has so succeeded are greater. Hence, the accused may be said to be under an evidential burden if the prosecution has established prima facie case. Discharge of the evidential burden by the defence is not a pre-requisite to an acquittal. The accused is entitled to be acquitted “if at the end of and on the whole of the case, there is a reasonable doubt created by the evidence given by either the prosecution or the prisoner.” The principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained. It’s an essential principle of our criminal law that a criminal charge has to be established by the prosecution beyond reasonable doubt. The philosophy underlying this rule is the oft quoted maxim that it is better than ten guilty persons should escape than one innocent suffer.
The time honoured expression that the court must be satisfied “beyond reasonable doubt” has been accepted in the Anglo Saxon would as the standard of proof in criminal cases. Since the decision in Woolmington’s case the discretion to the jury has been that they must be satisfied of the prisoner’s guilt beyond reasonable doubt if they want to convict him. Lord Goddard suggested in England that this phrase should be abandoned. He had great experience in criminal matters. He suggested that the expression ‘completely satisfied’ or ‘fully sure’ should be accepted as substitutes.
The fourth edition of Halsbury’s laws of England goes so far as to say that the phrase “reasonable doubt” should be avoided. No one has yet invented or discovered a mode of measurement for the intensity of human belief better than this formula of proof “beyond reasonable doubt”.
What does the expression “beyond reasonable doubt” mean?
For a doubt to stand in the way of conviction of guilt it must be a real doubt and a reasonable doubt. A doubt which after full and fair consideration of the evidence the judge rely on reasonable grounds entertained. If the data leaves the mind of the trier in equilibrium, the decision must be against the party having the burden of persuasion. If the mind of the adjudication tribunal is evenly balanced as to whether or not the accused is guilty, it is its duty to acquit.
 Lal Bahadur v. State of NCT of Delhi, (2013) 4 SCC 557
 Phipson on Evidence, 13th ed. P 49
 Woomington v. Director of Public Prosecutions, (1935) AC 462
 R. V. Hepworth, (1955) 2 QE 600 (603)
 Haris J. Mal v. State (Delhi Administration), 1982 CrLJ 2123