In the past, I had written an article (originally written on 25.02.2011 on my personal blog, and then slightly modified on 30.12.2012 in the wake of 16 December Delhi rape case) submitting a critique of the way a 2-judge bench of the Supreme Court had on 22.02.2011 wrongly reduced the sentence of the accused persons in a gang rape case against the usual norms, in the case reported vide Baldev Singh v. State of Punjab, (2011) 13 SCC 705 : AIR 2011 SC 1231 : 2011 Cri LJ 1746. Justice Markandey Katju, who was the author of that judgment and who had retired by then, had in an unprecedented manner, replied to such criticism (apparently with reference to my aforesaid article, though without specifically mentioning it, since till that time this was the only detailed article criticizing the said judgment). And, in my above article, through an update, I had mentioned that Justice Katju had not come up with any new explanation and that he had repeated the reasons that were mentioned in his judgment.
Incidentally, in a subsequent judgment, a 3-judge bench of the Supreme Court in the case of Shimbhu v. State of Haryana, (2014) 13 SCC 318 : AIR 2014 SC 739 : 2014 Cri LJ 308, had specifically observed that the above judgment in the case of Baldev Singh cannot be cited as a precedent and that it should be confined to that case, and the 3-judge bench had made similar observations as I had submitted in my criticism of the said Baldev Singh judgment, thereby indirectly upholding the said criticism.
In spite of all this, in a new judgment of 26 February 2015, another 2-judge bench of the Supreme Court has relied upon the said Baldev Singh case, and considering it as a precedent, it has similarly reduced sentence in another rape case making it less than the statutory minimum prescribed under law, on grounds which cannot be (similarly) considered to be adequate and special reasons. It is really surprising that in an environment where offences against women have attracted so much public uproar, the Supreme Court has decided to again reduce sentence of a rapist in exercise of a special discretionary power against the well-established judicial and legislative norms.
This recent judgment was delivered by a bench of Justice M.Y. Eqbal and Justice Pinaki Chandra Ghose in the case of Ravindra v. State of Madhya Pradesh [Criminal Appeal No. 1410 of 2013]. This judgment can be seen online here.
Another indiscretion seen in this recent judgment of the Supreme Court is that the name of the victim of rape (who was merely about 16 years of age at the time of the incident) has been disclosed in the judgment, which is against the spirit of the provisions of Section 228-A of the Indian Penal Code which prohibits disclosure of name of rape victims. Usually, the name of the victim of a rape is described as “A” or “X” or something like that, so that the real name of the victim does not become known. It is unfortunate that the Supreme Court should have casually mentioned the name of the victim of a rape in its judgment.
Coming to the details of this recent case, it may be noted that the accused in this case was convicted of the offence of rape under Section 376(1) of IPC and was punished with sentence of 10 years’ rigorous imprisonment by the trial court. The high court had upheld the conviction and the sentence. In appeal, the Supreme Court upheld the conviction, but reduced the sentence to the period already undergone by the accused. Unfortunately, it is not even mentioned in this judgment as to how much is the period of sentence already undergone by the accused. But, one thing that appears to be clear is that the period already undergone must have been less than the minimum sentence period prescribed under law, since the Supreme Court has specifically resorted to “adequate and special reasons” for reducing the sentence to a period less than the statutory minimum for such an offence.
Another oversight in the said judgment appears to be that the Supreme Court has referred to the Proviso to Section 376(2)(g) of IPC for reducing the sentence. However, Section 376(2)(g) refers to a “gang rape”, and the present case is NOT a gang-rape case. Moreover, the Proviso is to Sub-section 376(2) as a whole and not merely to clause 376(2)(g). In the present case, the conviction was under Section 376(1) IPC as mentioned in the very first paragraph of the Supreme Court judgment, and therefore, the relevant applicable provision for reduction of sentence would have been the Proviso to Sub-section 376(1) and NOT the Proviso to Section 376(2)(g) of IPC. Of course, the language of both these Proviso’s is similar, though they are applicable in different situations and are applicable to different minimum sentences of 7 years or 10 years, respectively.
[Note: Section 376 IPC has recently been amended in the year 2013. The provisions referred to above are those that were applicable prior to 2013 since the case pertains to a prior period.]
Let me now come to the main issue. The sentence of the accused in this recent case of Ravindra has been reduced below the statutory minimum, and the following observations of the Supreme Court are relevant in this regard:
“11. Now, we shall examine whether this case falls under proviso to Section 376 IPC, to award a lesser sentence for “adequate and special reason”. In the present case, the incident took place 20 years ago and now with passage of time both victim and accused are married (not to each other) and they have entered into a compromise. Thus, an adequate and special reason for awarding a lesser sentence exists in terms of proviso to Section 376.
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17. This Court has in the case of Baldev Singh & Ors. v. State of Punjab, (2011) 13 SCC 705, invoked the proviso to Section 376 (2) (g) of IPC on the consideration that the case was an old one. The facts of the above case also state that there was compromise entered into between the parties.
18. In light of the discussion in the foregoing paragraphs, we are of the opinion that the case of the appellant is a fit case for invoking the proviso to Section 376(2)(g) of IPC for awarding lesser sentence, as the incident is 20 years old and the fact that the parties are married and have entered into a compromise, are the adequate and special reasons. Therefore, although we uphold the conviction of the appellant but reduce the sentence to the period already undergone by the appellant.”
Thus, the following reasons been mentioned as “adequate and special reasons” for reducing the sentence of the rape accused to less than the statutory minimum:
- The incident is 20 years old.
- Parties have married (though not to each other).
- Parties have entered into compromise.
In addition, the Supreme Court also relied upon the fact that on similar grounds the sentence was reduced in a rape case earlier by the Supreme Court in the above case of Baldev Singh v. State of Punjab, (2011) 13 SCC 705 : AIR 2011 SC 1231 : 2011 Cri LJ 1746, which has thus been considered as a precedent in the present case.
Let me now examine these grounds. I shall be mostly borrowing my words from my previous article, since the issue is same and the grounds are also same.
On the ground of the incident being old, this is what I had mentioned in above previous article, which applies, mutatis muntadis, here as well (the period of pendency is slightly different, but it hardly matters since the legal principle is the same):
“Given the fact that many of the cases remain pending before the trial court itself for 15-20 years with appeals before the High Court and Supreme Court needing further longer durations, the aforesaid Baldev Singh case cannot be given the special advantage of being an old case, since within a short span of 14 years this case had the so-called luxury to reach (and get decided by) the Supreme Court. Thus, this case got decided from the trial court, the High Court and then the Supreme Court within a total period of 14 years. There are a large number of other similar cases that take much longer periods for this purpose. So, this cannot be a special reason.”
On the ground of parties having married, I wrote as under:
“Secondly, the fact of the accused getting married during the long pendency of the case or the victim getting married during such long period, is not an unusual thing. One cannot expect that they should not marry during the long pendency of the trial or the appeal proceedings. And, if they do marry (not to each other), this fact does not deserve any special consideration as it is a usual phenomenon common to most cases.”
On the ground of parties having entered into compromise, I had reasoned as under:
“Thirdly, the fact that the parties had arrived at a compromise has to be seen in the context of the fact that rape (and more so, gang rape) is a non-compoundable offence under law. Therefore, the law does not give any recognition to a compromise between the rapist and the rape-victim. This being so, giving undue importance to such a compromise may have the tendency to lead to the unfortunate consequence of the rapists trying to put pressure on the rape-victims to compromise. This will negate the legislative intent and mandate. It may also lead to further victimisation of the poor rape-victims. So, money power or muscle power may overpower the legal processes by way of a “forced” compromise. Moreover, in the instant case, it appears that the Supreme Court did not make any efforts to call for the rape-victim to authenticate the truthfulness and circumstances of the compromise and to ascertain for itself as to whether the so-called compromise was voluntary and genuine.
The recent rape case of Patiala in Punjab is relevant in this regard. In that case, even the police officers were trying to force a compromise between the rapists and the victim. Later, the victim committed suicide. It is only after this that this Patiala case attracted the attention of people at national level that led to some belated action against the concerned police officers.
Therefore, a compromise between the parties is rather a cause to look at the case with suspicion. It is like adding insult to injury. First you commit rape and then force a compromise on the victim using money or muscle power. That is why perhaps, the Parliament, in its own wisdom, decided to keep the offence of rape as a non-compoundable offence, where a compromise is not allowed.”
Therefore, my submissions made in the above article are equally applicable to this new judgment in the aforesaid Ravindra case since the same grounds are mentioned for reducing the sentence of a rape accused. It is submitted that these grounds cannot be called “adequate and special reasons” to reduce the sentence below the statutory minimum sentence prescribed under Section 376 IPC, as it existed then.
In fact, as mentioned above, after I wrote the aforesaid article, a decision of a 3-judge bench of the Supreme Court in the above case of Shimbhu v. State of Haryana, (2014) 13 SCC 318 : AIR 2014 SC 739 : 2014 Cri LJ 308, has made observations similar to the views expressed in my above article, thereby indirectly endorsing those views.
In para 16 (SCC) of the Shimbhu judgement, the Supreme Court relied upon the following observations in an earlier case [State of M.P. v. Bala, (2005) 8 SCC 1]:
“The crime here is rape. It is a particularly heinous crime, a crime against society, a crime against human dignity, one that reduces a man to an animal. The penal statute has prescribed a maximum and a minimum punishment for an offence under Section 376 IPC. To view such an offence once it is proved, lightly, is itself an affront to society. Though the award of maximum punishment may depend on the circumstances of the case, the award of the minimum punishment, generally, is imperative. The provisos to Sections 376(1) and 376(2) IPC give the power to the court to award a sentence lesser than the minimum for adequate and special reasons. The power under the proviso is not to be used indiscriminately or routinely. It is to be used sparingly and only in cases where special facts and circumstances justify a reduction. The reasons must be relevant to the exercise of such discretion vested in the court. The reasons must be set out clearly and cogently. The mere existence of a discretion by itself does not justify its exercise. The long pendency of the criminal trial or the offer of the rapist to marry the victim are not relevant reasons. Nor is the age of the offender by itself an adequate reason.”
Similarly, in para 19 (SCC) of the Shimbhu judgement, the Supreme Court held as under:
“Thus, the law on the issue can be summarised to the effect that punishment should always be proportionate / commensurate to the gravity of offence. Religion, race, caste, economic or social status of the accused or the victim or the long pendency of the criminal trial or offer of the rapist to marry the victim or the victim is married and settled in life cannot be construed as special factors for reducing the sentence prescribed by the statute. The power under the proviso should not be used indiscriminately in a routine, casual and cavalier manner for the reason that an exception clause requires strict interpretation.” [Emphasis supplied]
Further, in para 20 (SCC) of the Shimbhu judgement, the Supreme Court observed as under:
“Further, a compromise entered into between the parties cannot be construed as a leading factor based on which lesser punishment can be awarded. Rape is a non-compoundable offence and it is an offence against the society and is not a matter to be left for the parties to compromise and settle. Since the Court cannot always be assured that the consent given by the victim in compromising the case is a genuine consent, there is every chance that she might have been pressurised by the convicts or the trauma undergone by her all the years might have compelled her to opt for a compromise. In fact, accepting this proposition will put an additional burden on the victim. The accused may use all his influence to pressurise her for a compromise. So, in the interest of justice and to avoid unnecessary pressure/harassment to the victim, it would not be safe in considering the compromise arrived at between the parties in rape cases to be a ground for the Court to exercise the discretionary power under the proviso of Section 376(2) IPC.” [Emphasis supplied]
Moreover, referring to the aforesaid Baldev Singh decision, the Supreme Court in the said Shimbhu judgement further held as under (para 18.1 of SCC):
“In Baldev Singh v. State of Punjab, though the courts below awarded a sentence of ten years, taking note of the facts that the occurrence was 14 years old, the appellants therein had undergone about 3½ years of imprisonment, the prosecutrix and the appellants married (not to each other) and entered into a compromise, this Court, while considering peculiar circumstances, reduced the sentence to the period already undergone, but enhanced the fine from Rs 1000 to Rs 50,000. In the light of series of decisions, taking contrary view, we hold that the said decision in Baldev Singh cannot be cited as a precedent and it should be confined to that case.” [Emphasis supplied]
Thus, it is clear that a 3-judge bench of the Supreme Court clearly held that the said Baldev Singh case cannot be cited as a precedent and it should be confined to that case.
However, in spite of this, the aforesaid 2-judge bench (on which the said 3-judge decision is binding) in the above case of Ravindra have considered the said Baldev Singh case as a precedent and on the very same grounds on which the Baldev Singh case was decided, this 2-judge bench has reduced the sentence of the rape accused to a period which is less than the minimum prescribed under law.
In addition, it also needs to be appreciated that recently in 2013, the Parliament has amended Section 376 IPC and has removed the Proviso’s that allowed a court to award a sentence less than the minimum prescribed for any reasons. Now, a sentence less than minimum cannot be awarded even for adequate and special reasons. Though, to be fair, this 2013 amendment in law would not be applicable to an incident that took place 20 years back (such as in the Ravindra case), at least it shows the new direction which the law has taken in view of the public sentiments against rape cases, and keeping in view the spirit of this new amendment, at least the exercise of a special discretionary power of reducing sentence, on grounds which did not ex facie appear to be adequate or special reasons, should perhaps have been avoided.
Therefore, it is respectfully submitted that the above decision in the Ravindra case is wrong and per incuriam.