Supreme Court expresses angusish due to non-compliance of its order by State Legal Services Authorities for Legal aid

"Legal aid, simply put, refers to the provision of free or affordable legal services to individuals who lack the economic or social capacity to access justice through conventional means. It rests on the idea that equality before the law must be real and not symbolic. Legal aid helps ensure that rights are not confined to those who can afford legal representation, but are available to all, including the poor and marginalized. In this sense, it plays a crucial role in making legal protections meaningful. In India, the concept of legal aid is closely tied to the vision expressed in the Preamble of the Constitution, which promises justice be it social, economic, and/or political, along with equality of status and opportunity, and affirms the secular character of the State. Social justice, in this context, requires the State to reduce structural inequalities and protect vulnerable groups from exclusion and exploitation. Legal aid contributes directly to this goal by enabling disadvantaged individuals to assert their rights and seek remedies against injustice. Political justice, on the other hand, is concerned with ensuring meaningful participation in democratic processes and equal access to institutions of governance. Without access to legal advice and representation, many citizens would find it difficult to exercise these rights effectively, whether in matters of voting, representation, or challenging arbitrary state action. The commitment to secularism further strengthens the case for legal aid, as it demands that the legal system remain neutral and accessible to all individuals irrespective of religion, ensuring that justice is administered without discrimination or bias. This commitment was given a clear constitutional expression through the insertion of  Article 39A by the 42nd Constitutional Amendment Act, 1976. Article 39A directs the State to promote justice on the basis of equal opportunity and to provide free legal aid so that no individual is denied access to justice due to economic or other disadvantages. While the legacy of the 42nd Amendment remains contested because of its enactment during the Emergency period from 1975 to 1977, Article 39A is arguably one of its most constructive and enduring contributions. It firmly situates access to justice within the Directive Principles of State Policy. Over time, the Judiciary has further strengthened this framework by linking legal aid to Article 21 of the Constitution, which guarantees the right to life and personal liberty. Courts have interpreted this right to include fair legal procedures and access to legal representation, thereby reinforcing the centrality of legal aid in a just legal system. On the whole these developments show that legal aid in India is not merely a matter of policy, but a constitutional responsibility that advances the broader ideals of justice, equality, secularism, and fairness envisioned in the Preamble."

-Supreme Court's order dated April 16, 2026 in Shankar Mahto vs. The State of Bihar (2026)

"we consider it appropriate to have views of the National Legal Services Authority (NALSA) for laying down a step by step procedure for ensuring intimation of an adverse order/judgment to the accused; seeking whether he intends to file an appeal; informing the accused of his right to legal aid, and taking steps to ensure that an appeal is filed. It is also necessary to ensure a monitoring mechanism for following whether due intimation and certification is being done."

-Supreme Court's order dated October 24, 2017 in Shankar Mahto vs. The State of Bihar (2017)

"We find that there is an usual inordinate delay in this matter in which legal aid is involved. Such delay has been noticed in several cases where the legal aid authorities are involved. It is important to find out where such inordinate delays occur and to issue directions for preventing such delay." 

-Supreme Court's order dated May 5, 2017 in Shankar Mahto vs. The State of Bihar (2017)

In Shankar Mahto vs. The State of Bihar Through Home Department (2026), Supreme Court's Division Bench Justices Sanjay Karol and N. K. Singh passed an order dated May 4, 2026, wherein, it wrote:"For ensuring compliance with the directions issued vide judgment dated 16th April, 2026, Ms. Vibha Dutta Makhija, learned senior counsel (Amicus Curiae) would prepare and circulate an implementation format for necessary compliance.
2. Let the needful be done within a period of one week from today. 3. List on 25.05.2026."

Earlier, the same bench had passed a 29-page long order dated April 16, 2026, wherein, it condoned the delay. The order wass authored by Justice Sanjay Karol. While dealing with an appeal by the appellant, who had challenged the judgment of conviction and sentence to death awarded to him and confirmed in terms of Criminal Appeal No. 425 of 2002 passed by Patna High Court, as per judgment dated February 20, 2014, the Supreme Court in terms of its order dated May 5, 2017 noticed that inordinate delay was affecting matters in which legal aid was involved. It made an effort to find out the cause for the same and issued necessary directions.

Its order dated January 19, 2021 reads: “We have noticed that in the special leave petitions filed by Supreme Court Legal Services Committee (SCLSC) on behalf of the convicts, there is an inordinate delay which becomes difficult to condone. Needless to say, the situation brings about a lack of even handedness
in dealing with matters of condonation of delay. We see no reason why these delays should continue to occur particularly with the availability of tools provided by information and communication technology which are easily available. In this matter, Ms. Vibha Datta Makhija, learned Amicus Curiae, has submitted a report dated 15.01.2021 in consultation with the SCLSC on measures to curb the delay. Valuable as that report is, we consider it appropriate to constitute a Committee comprising of certain experts who would examine all the suggestions and responses which may be received by it from the High Courts as well as the other stakeholders. In view of the other suggestions (Annexure B) by NALSA and the response submitted by various High Courts, we find it appropriate to constitute a Committee comprising of Secretary (Ministry of Home Affairs), Government of India, Director General, National Informatics Centre, Member (Process), E-Committee, Supreme Court of India and Member Secretary, NALSA. The Committee shall examine the aforementioned suggestions/responses and submit a report with regard to digitization, translation and electronic transmission of records to facilitate access to justice and timely filing of appeals/SLPs by the convicts, by utilizing the Information and Communication Technology tools, within four weeks. We have also gone through the Module and the Note dated 16.10.2019 as per the report for timely filing of appeals/SLPs of convicts though the Legal Services Institutions. We therefore direct the High Courts to submit their responses to the Committee through their Registrars General within two weeks. The Committee shall submit its report within two weeks’ thereafter. The Secretary General of this Court shall coordinate meetings of the Committee....”

By order dated May 23, 2025, certain questions were put to the Secretary of the SCLSC, and he was required to file an affidavit in that regard. The questions are as follows :-“i. What is the current pendency upto 30.05.2025, i.e. out of the total requests received by the SCLSC so far. How many cases have been filed, and how many are under consideration? ii. What has been the year wise average days of delay in filing petitions of applicants under each category of applicants as provided under Section 12 of the Legal Services Authorities Act, 1987, after Operation Cleanup in the year 2018? iii. Is there adequate infrastructure and staff to deal with the load of SCLSC? iv. What are the reasons for delay, and how have those delays been addressed? v. What is the status of online connectivity between the SCLSC with other stakeholders like High Courts, Prisons, Panel Counsels etc?”

In response to these queries, the Supreme Court Legal Services Committee, submitted in affidavit dated July 14, 2025. In response to direction (i) i.e., “what is the current pendency, upto May 30, 2025, for the total requests received by the SCLSC, how many cases have been filed and how many cases are under consideration”, the data taken from the SCLSC website portal revealed that a total of 4062 legal aid applications/requests were received in 2024, out of which 1972 cases were assigned to Panel Advocates and in 906 cases legal aid was refused/closed. There was no legal aid application pending with SCLSC. During January 1, 2025-May 30, 2025, a total of 3305 legal aid applications/requests were received. Out of which 1819 cases were assigned to Panel Advocates and in 476 cases legal aid was refused/closed There were 688 cases in which legal aid application were pending with SCLSC. The data of total cases assigned to the Panel Advocates for the period between Jnauary 1, 2025 to May 30, 2025 is as per the information available on the SCLSC website portal and manual record as the data of newly increased panel advocates was yet to be updated. As per information available on the SCLSC website portal is 745 and manual record is 1074. The updated data of the actual cases filed/pending before the Supreme Court was not available on the SCLSC website portal as there was no official intimation or updating on the login IDs by the panel advocates post assignment. 

 In response to directions/query (ii), i.e. the average year wise delay in filing petitions of applicants under the categories enumerated under Section 12 of the Legal Services Authorities Act, 1987, after the Operation Cleanup in the year 2018, it was submitted that the feature providing for the information regarding the delay caused in the filing of petition is not available on the SCLSC website portal. 

The procedure for grant of legal aid was brought to the knowledge of the Supreme Court which is as under:
(a) The SCLSC has made provisions for receiving the applications from the persons seeking legal aid services, both in physical form and through the SCLSC online portal (sclsc.gov.in).
(b) The legal aid application can also be submitted through:
(i) the High Court Legal Aid Services Committee (HCLSC) or;
(ii) the district legal aid authorities or;
(iii) jail authorities or;
(iv) NALSA Portal or;
(v) Directly from the litigant.

There is a mandatory check list of documents which are necessary for the purpose of consideration of grant of legal aid before approaching the Supreme Court. The persons seeking legal aid can seek assistance of the HCLSC for completion of documents. On completion of documents, the cases are then referred to the screening committees, consisting of Senior Advocates, to render an opinion on the merits of
the applications. The cases of applicants under judicial custody are directly assigned to the panel advocates.

On November 29, 2014, under the Chairmanship of Justice T. S. Thakur, Judge, Supreme Court of India & Executive Chairman, NALSA a resolution was passed which reads: “3. All matters that are required to be filed before the Supreme Court be processed and prepared by the High Court Legal Services Committee, including translations of documents and that SLSAs transfer adequate funds to High Court Legal Services Committees for preparation and translation of documents before dispatch to the Supreme Court Legal Services Committee for filing.”

In terms of the circular dated April 13, 2015 issued by the SCLSC adopting the circular issued by NALSA dated February 19, 2015), all legal aid cases which are to be filed before the Supreme Court, are to be prepared and processed by the HCLSC, before they are dispatched to SCLSC for filing.

On completion of documents the matters which are civil in nature or criminal in nature confined to the cases pertaining to the complainant, quashing, transfer, etc. are referred to the Screening Committee consisting of Senior Advocates to render opinion on the merits of legal aid applications. The cases recommended by the Screening Committee are processed further. The cases of persons under judicial custody/prison are directly assigned to the panel advocate for filing the matter before the Supreme Court. The assignment letter assigning the case to the panel advocates specifically stipulates to file the case within 15 days. There is a Login ID of each Panel Advocate and the legal aid applications along with documents which are scanned and indexed are also available in the respective Login IDs immediately on assignment. The panel advocates and the legal aid applicant can communicate directly on the address and
contact number of both given in the assignment letter. However, there is no timely official communication by the panel advocate regarding the filing of the case before the Supreme Court or the orders passed by the Supreme Court till the submission of bill and return of documents by Panel Advocate to SCLSC after disposal of the matter. 

In response to directions (iii), i.e., availability of adequate infrastructure and staff to deal with the load of SCLSC, it was submitted that SCLSC is well equipped with infrastructure and staff.

In response to directions (iv), i.e., the reasons for delay, and how have those been addressed, it is submitted that the reasons for delay are broadly identified as under:
(a) Submission of legal aid application after delay by the legal aid applicant;
(b) submission of incomplete documents by the legal aid applicant;
(c) delay caused by the panel lawyers in filing the petitioner after assignments of the matter.
(d) Translations of vernacular documents, custody certificate to be obtained from jailors, retrieving records from the high court in case of appeals, collating information from the litigant/ or next friend in case of death of parties are some of the causes for delay.

There are various methods adopted by SCLSC to curb the delays which are as under:-
There was a massive campaign initiated in January  2025 (Mission Mode). vide letter dated January 10, 2025, the Director General of Prisons and Member Secretaries of High Court Legal Services Committees and the State Legal Services Authorities were communicated with the decisions of the Chairman, SCLSC requesting to collect the data with respect to: 
▪ Matters in which High Court has upheld the conviction but inmate has not yet filed appeal.
▪ Matters is which the prisoners have remain in jail for half/more than half of sentence period and bail prayer rejected by the High Court but inmate has not yet moved to Supreme Court.
▪ Prisoners whose remission/pre-mature release has been rejected by the state sentence review board and writ against that order has also been rejected by the High Court but inmate has not yet moved Supreme Court. 

It was requested to send the details of prison inmates covered under aforesaid three categories and willing to avail legal services of Supreme Court Legal Services Committee. Thereafter, reminders were sent on February 6, 2025 and February 19, 2025 to the authorities for furnishing the requisite data in pursuance of the MISSION MODE. Further, a letter dated March 5, 2025 was sent to the Authorities to provide complete documents with respect to the inmates whose names were mentioned in the data collected and who were willing to avail legal aid services.

A video conference chaired by Justice Suryakant, the then Chairman of SCLSC was held on April 1, 2025 with the Chairpersons of all the State Legal Services Authorities and High Court Legal Services Committees regarding MISSION MODE. The letter dated April 5, 2025 was sent to all the Concerned Authorities requesting to expedite furnishing of the documents. Then another letter dated April 5, 2025 was sent to all the Concerned Authorities in pursuance of the Video Conferencing dated April 1, 2025 to constitute a team of 5 Panel Advocates for visiting the jails to create awareness among the inmates and submit a stage wise report to SCLSC. The letter dated May 3, 2025 was sent to the Registrar Generals of all the High Court communicating the virtual interaction scheduled on May 5, 2025 at 5.30 P.M. of the then Chairman, SCLSC with the Chief Justices of High Courts, Executive Chairperson of SLSAs and HCLSCs. 

It was submitted that, after the successful implementation of Mission Mode, SCLSC is now receiving legal aid applications along with documents from the various Legal Services Authorities to provide legal aid to the jail inmates. The panel of Advocates in the category of AOR, Non-AOR and Arguing Counsel was reconstituted by expanding the panel and additional advocates have been taken on the panel and the number is increased. An additional category of Assisting Counsels was introduced who will provide assistance to the AORs, Non AORs and Arguing Counsels to ensure timely filing and assistance in preparation of the cases. The number of the Screening Committee increased for expeditious grant of legal aid. In response to directions (v), i.e. the status of online connectivity between SCLSC is as under:
• The facility of online connectivity through video conferencing and intercommunication with the High Court Legal Services Committee, Prisons, Panel Counsel, etc. is available on the SCLSC web portal i.e.,
sclsc.gov.in.
• Separate Login IDs are allotted to the HCLSCs, SLSAs, DLSAs, TLSAs, Prisons, Panel Counsels and any communication is immediately is shown in the respective Login IDs.
• The stakeholders including the legal aid applicants can apply for counseling/meeting through video conferencing and on receipt of such application a date and time is given on which the said counseling/meeting can be facilitated.
The status of the legal aid applications submitted by the legal aid applicant can be checked on the SCLSC web portal.”

The order reads: The Supreme Court Legal Service Committee, sought directions from this Court in the following terms as recorded in order dated September 1, 2025. There appears to be some laxity on part of the authorities to furnish affidavits in terms of our order which anguish us (order dt 16.09.2025 to be picked) and as such we had requested the Learned Amicus Curiae to interact with the Chairpersons of the Legal Service Authorities and furnish the requisite information in tabular form."

The order dated September 1, 2025 reads: 
“I. For High Court Legal Services Committee (HCLSC) a. In cases where the applicant has directly approached the Supreme Court Legal Services Committee (SCLSC), the HCLSC must transmit the complete Paperbook filed before the High Court and the Courts below within seven days of the requisition from SCLSC. 
b. In cases where application for legal aid is forwarded from the HCLSC to SCLSC when the applicant has approached the HCLSC, the HCLSC should ensure that the complete Paperbook of the High Court and Courts below is accompanied along with the forwarding letter.
c. In cases where the matter referred to is not a criminal matter and/or the applicant is not in judicial custody, the HCLSC must forward the duly signed/identified vakalatnama and attested affidavit within seven days of receipt of the same from the SCLSC.
d. The HCLSC shall also send the soft scanned copies of all the documents to SCLSC.

In cases where the legal aid applicant is in judicial custody and approaches SCLSC through HCLSC, the Vakalatnama and custody certificate (with complete particulars) duly attested and signed by the Jail Authority/Jail Superintendent must be sent (digital and hard copy) to HCLSC within three days from the receipt of request received from the Prison in mate. The HCLSC shall send the Paperbook, true copy of order passed by the High Court and the lower courts records, alongwith documents received from the Jail (Vakalatnama, Custody Certificate and duly attested affidavit hard as well as scanned copy) to SCLSC within seven days from the date of receipt of request from SCLSC.

As and when the Advocate or the SCLSC sends a request for any additional document, the same must be sent to the SCLSC within seven days from the request received in this regard.

Order dated September 16, 2025 reads: “We express our anguish in the manner in which the statutory authorities have not chosen to respond to the orders passed by this Court. 2. Under these circumstances, we request Ms. Vibha Dutta Makhija, learned amicus curiae, to personally get in touch with the Chairman
of all the State Legal Services Authorities with a further request to them, ensuring necessary compliance of the order before the next date of hearing.”

Supreme Court's order underlined that the development of the concept of legal aid through judicial pronouncements is important to note for the purposes of the directions issued in this Judgment. At the outset, it be noted that in Sunil Batra vs. Delhi Administration 2 (1978) 4 SCC 494 held that prisoners do not surrender their fundamental rights at the prison gate. In that context, let us proceed further. The most recognizable name in the line of cases of this Court, furthering the Directive Principles of State Policy as mentioned in Article 39A of the Constitution of India, is Hussainara Khatoon vs. State of Bihar (1980) 1 SCC 81, in which the Court held that the speedy trial to be a facet of Article 21 and free legal aid is an essential component of fair, just and reasonable procedure in law. It was emphasized that the State had an obligation to ensure access to justice and that the Court was required to take steps to provide legal representation and expedite criminal trials. Even before this, in the year 1978, this Court in Madhav Hayawadanrao Hoskot vs. State of Maharashtra (1978) 3 SCC 544 held that the right to counsel was a fundamental right traceable to Article 21. We take note of another case from the same year i.e., Khatri (II) vs. State of Bihar (1981) 1 SCC 627 in which it was held that free legal aid is a fundamental right and that it attaches from the moment the accused is first produced before a Magistrate and not only at the commencement of the trial. Further, it was held that the right to legal aid does not depend on a request to that effect from the accused, thereby placing a positive obligation on the State to provide the same. Most recently, this Court in Suhas Chakma vs. Union of India 2024 INSC 813 speaking through K.V. Viswanathan, J. extensively dealt with this issue of systemic deficiency in access to free legal aid for prisoners, particularly the under trials. 

Supreme Court concluded: "10. We have given careful consideration to the SOP and the proposed directions. We are of the considered view that this SOP is a result of in depth deliberations conducted by the “stakeholders” or “major players in the game”, that being the case the same deserves consideration by all the High Courts on the administrative side, so that, necessary changes to the procedure in place, can be
adopted in furtherance of the aims of the SOP. As such, it is directed that a copy of this order be placed before the learned Chief Justice of the High Court, for necessary consideration and appropriate action at their end.
11. While implementation of the entire breadth of the SOP is left to the wisdom of the High Courts, we do hereby direct that the timelines mentioned under Heading 5 of the SOP shall be treated as binding. This is for the purposes of streamlining the filing of appeals in cases where the respective Legal Services Committees are required to take lead. This, it is our hope, will go a long way in addressing the structural gaps that had prompted this Court to take forward the present proceedings apart from dealing with the death reference from which they emanated.
12. Regarding the issue of translators, while we do not issue any directions, we may only observe that the poor quality of translation has engaged the attention of this Court, recently, on quite of few occasions, indicating that some sort of structural change is necessitated in this regard. The respective High Court may
seriously examine and take decision on paragraph 6 of the SOP within a time bound period, i.e., not more than four weeks.
13. The aspect of monitoring and accountability as delineated in paragraph 8 of the SOP ensures that there is effective monitoring and ‘keeping tabs’ on the functioning and processes to be undertaken by the Legal Services Committees of the respective High Courts. Let the necessary constitution of the committee be carried out at the earliest. The Standing Committee/Administrative Committee, may appoint the members either by itself or after consulting the Full Court, as may be warranted. The Member Secretary of HCLSC shall be an ex-officio member. In so far as the constitution of the committee for this Court is concerned, the Member Secretary, SCLSC is directed to bring this order to the notice of the learned Executive Chairman, SCLSC and solicit orders thereon as may be deemed suitable by such authority.
14. On the aspect of coordination with jail authorities and inter-agency communication, the suggestions made in the SOP (para 9) shall be implemented forthwith as far as practicable. The last aspect delineated upon therein i.e., delay explanation (para 13-SOP), in our view, is a necessary change that will enable the tabling of the actual time taken in the process of filing the appeal. It is as such directed that the said format shall be incorporated forthwith into the necessary documentation. We hereby grant two weeks from the date of this order for it to be incorporated after which any appeal filed by HCLSC shall necessarily contain the same.
15. Suggestions ‘b’ and ‘d’ of the learned amicus curiae reproduced in paragraph 9 of this order shall be read as directions issued by this Court.
16. The Registrar (Judicial) is directed to circulate a copy of this order to the Registrars General of all the High Courts, who shall ensure a copy of the same is placed before the Learned Chief Justices and the Executive Chairpersons of the State Legal Service Committees, for necessary follow up action and requisite changes as may be required.

In its order Court had directed that the status report/compliance report be filed by all concerned institutions including the National Informatics Centre, by April 30, 2026. The matter was fixed for further consideration on May 4, 2026.

Earlier, in Shankar Mahto vs. The State of Bihar (2014), Justice Akhilesh Chandra of Patna High Court had delivered a 4-page long judgement dated February 20, 2014, wherein, he concluded:"6. In such type of incident with a female, the statement of the victim itself is sufficient to establish the guilt even  without any corroboration unless and until anything strongly otherwise is shown, but as stated, in the case in hand, there appears nothing to disbelieve her. Consequently, finding no reason to interfere with the judgment of conviction and order of sentence, as recorded by the trial court, the appeal is hereby dismissed. 7. The solitary appellant is required to serve the remaining period of sentence and the appellant is on bail, hence, his bail bond is cancelled. 8. The learned trial court will take due steps for taking the appellant into custody." 

The solitary appellant had preferred the appeal against his conviction for the offence punishable under Section 376 of the Indian Penal Code and sentence to undergo rigorous imprisonment for seven years and also to pay a fine of Rs. 2,000/, as awarded by Sessions Judge, Begusarai vide judgment of conviction and order of sentence respectively dated 20th & 23rd Day of July, 2002 in Sessions Case No. 169 of 1991 arising out of Sahebpur Kamal P.S.

The prosecution case was based on the Fardbeyan of P.W.1 recorded on 22nd September, 1990 at 10.30 hours is that in the previous evening at about 6.00 p.m. while she was visiting her field found the appellant getting crops grazing by his animals, which was object, but bluntly refused by the appellant to get the animals out from there. However, while the prosecutrix was returning she was got hold from behind by him (appellant), who not only slapped her but also subjected to rape. She could be released only when on alarm raised other co-villager were found coming. She on return intimated the incident to her husband (P.W.6) and, thereafter, on the following day got the case was instituted. 

The judgement recorded that the appellant had tried his best to obstruct smooth proceeding of the trial on 3 - 4 occasions and he misused the privilege of bail for substantial period. However, the prosecution could be able to examine altogether eight witnesses and produced documentary evidence like Injury Report, F.I.R. and Case diary of S. Kamal 103/90. Out of the total eight prosecution witnesses examined, three prosecution witness, P.W.2, Umesh Sao, P.W.3, Sone Lal Sah and P.W.4, Prabhu Sah, were declared hostile, out of whom, P.W.3 and P.W.4 could be examined three years after examination of P.W.1 & P.W.2. P.W.5, Sita Ram Yadav, at whose field the offence was committed, had come to state about the condition of crops subsequent to incident. He had heard about the incident and is not an eye-witness, but whatever he said about the physical features that remain intact. 

P.W.6, namely, Rajendra Sao, was the husband of the prosecutrix, not an eye-witness, got such information through his wife (P.W.1) and denied the suggestion of false implication at the instance of one Sitaram Yadav with whom the appellant was at inimical terms. P.W.7, Dr. Baidehi Kumari, examined the prosecutrix but found no injury, proved her report, Exhibit.1. P.W.8, Bhuneshwar Yadav, was a formal witness, proved Exhibits 2 and 3.  

The solitary witness, the Prosecutrix, P.W.1, namely, Soni Devi, who stated the prosecution version and from her entire statement nothing appeared to disbelieve her. Her statement, stating the miseries faced by her at the hands of appellant remained intact.

Justice Arun Kumar Jha sets aside judgment of conviction, order of sentence by Additional Sessions Judge, FTC-II, Darbhanga in a rape case of 1996

In Kari Yadav vs. The State of Bihar (2025), Justice Arun Kumar Jha of Patna High Court delivered a 18-page long judgement setting aside  judgment of conviction and order of sentence by Additional Sessions Judge, FTC-II, Darbhanga in a  Sessions Trial of 1997. The judgement reads:"The appellant was acquitted of the charge by giving him the benefit of doubts. 29. Since the appellant is on bail, he is discharged from the liability of the bail bonds." 30. Accordingly, the present appeal is allowed." 

The appellant was convicted for the offence punishable under Section 376 of the Indian Penal Code and was sentenced to undergo rigorous imprisonment for seven years by the trial court.

The informant had recorded her statement to the effect that while she had been sleeping on the varandah of her house and her daughter had been sleeping inside, on February 24/25, 1996 at about 1.00 A.M., the appellant Kari Yadav came and gagged her mouth and forcibly committed sexual intercourse with her. Some scuffle took place and she received injuries on both her legs. Hearing her muffled sound, her daughter woke up and raised alarm and Yogendra Yadav and Madan Yadav reached there and, thereafter, the appellant Kari Yadav fled away from the spot. A formal FIR was instituted under Section 376 IPC. The police investigated the matter and submitted charge sheet under Sections 341, 323, 324 and 376 IPC against the appellant finding the case to be true. After taking cognizance, the case was committed to the court of sessions where charges were framed against the sole accused/appellant for the offence under Sections 323, 341 and 376 IPC, to which, the appellant pleaded not guilty and claimed trial. During trial, the prosecution examined altogether six witnesses in support of its case and also exhibited some documents. 

In Rai Sandeep @ Deepu vs. State of NCT of Delh (Criminal Appeal No. 2486 of 2009),  the Supreme Court held that 'sterling witness' should be of a very high quality and caliber whose version should be unassailable. The Court considering the version of such witness should be in a position to accept it for its face value without any hesitation. The Court further held that the said version should consistently match with the version of every other witness. It should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence as alleged against him. Applying these principles on the facts before it, the Supreme Court held that the solitary version of the chief-examination of P.W. 4, the prosecutrix, cannot be taken as gospel truth for its face value and in absence of any other supporting evidence, there was scope to sustain the conviction and sentence imposed upon the appellants. 

In Krishan Kumar Malik vs. State of Haryana (Criminal Appeal No. 1252 of 2011), the Supreme Court on account of certain shortcomings, irregularities and lacuna on the part of the prosecution did not find it is safe to convict the appellant. 

Justice Jha concluded:"27. Therefore, a reading of the evidence together, I am of the considered opinion that the prosecution has not been able to prove its case beyond reasonable doubt and in this case non-supporting medical examination report, non-examination of investigating officer and the background of family disputes show that the prosecution case has a shadow of doubt all along. Hence, conviction of the appellant on the basis of such evidence could not be sustained and upheld." 

Justice Arun Kumar Jha directs authorities to place petitioner's case for premature release before State Sentence Remission Board

Patna High Court delivered six judgments on November 13, 2025 in Rakesh Kumar Trivedi vs. The Bihar Staff Selection Commission & Ors., Sribhagvan Kumar vs. The State of Bihar, Rahul Kumar Singh vs. The State Bank of India & Ors., Yogendra Bhagat vs. The State of Bihar through the Chief Secretary, Government of Bihar, Patna, Binod Sah @ Binod Kumar Sah @ Binod Kumar vs. The State of Bihar through the Chief Secretary, Government of Bihar, Patna and Neeraj Kumar @ Neeraj Singh vs. The State of Bihar through the Principal Secretary (Home), Police Department Bihar, Patna.

In Yogendra Bhagat vs. The State of Bihar through the Chief Secretary, Government of Bihar, Patna & Ors. (2025), Justice Arun Kumar Jha delivered a 4-page long judgement dated November 13, 2025, wherein, he concluded:"this writ application is disposed of with direction to the respondent authorities to place the case of the petitioner for his premature release before the State Sentence Remission Board within six weeks and the State Sentence Remission Board would take a decision within six weeks thereafter considering the state policy and judicial pronouncement as the case of the petitioner appears to be covered under the 1984 policy." This case arose out of PS. case of 2024 from Patna. 

The other seven respondents were: The State Sentence Remission Board through the Principal Secretary, Home Department, Government of Bihar, Joint Secretary-cum-Director (Administration), Home Deptt. (Prison), Bihar, Secretary, Law Department, Government of Bihar, Patna, Additional Director General of Police, Criminal Investigation Department, Bihar, Inspector General, Prisons and Correctional Services, Bihar Patna, Assistant Inspector General, Prisons and Correctional Services, Bihar and Jail Superintendent, Special Central Jail, Bhagalpur. 

This writ application prayed for issuance of an appropriate writ in the nature of CERTIORARI for quashing the decision of the State Remission Board dated November 1, 2021 and the same was communicated to all concerned vide letter no. 4679 dated April 21, 2022 issued under the signature of Assistant Inspector General, Prisons and Correctional Services, Bihar, the Respondent No. 7, so far it related to the petitioner, whereby and where under the proposal for grant of pre-mature release was rejected on the ground that there was no favourable report of Superintendent of Police and Presiding Judge as also as per clause (iv) (ka) of Notification No. 3106 dated December 10, 2002, the petitioner was not eligible for consideration of his pre-mature release notwithstanding the fact that in the writ application filed by the petitioner being Cr.W.J.C. No. 209 of 2020, the High Court vide judgment and order dated August 16, 2021 held that the petitioner was convicted prior to July 2, 2007 and thus his case was required to be considered in the light of 1984 policy contained in letter dated January 21, 1984. It also prayed for issuance of an appropriate writ in the nature of MANDAMUS, commanding and directing the Respondent Authorities to consider the case of the petitioner for grant pre-mature release pursuant to the 1984 provision dated January 21, 1984 on the ground that the petitioner had already completed 14 years of his physical incarceration and 20 years with remission on September 6, 2013 and now he had completed about 25 years of his physical incarceration.

The counsel for the petitioner submitted that the petitioner was convicted vide judgment dated February 21, 2006 under Section 376 of the Indian Penal Code in Sessions Trial of 2000/44 of 2003 and was sentenced to undergo imprisonment for life vide order dated February 22, 2006 by the Additional District & Sessions Judge, F.T.C. No. IV, Gopalganj. The counsel also submitted that the case of the petitioner was not considered for remission though he has completed more than 14 years of his actual incarceration and more than 20 years with remission. The counsel also submitted that earlier prayer for premature release of the petitioner was rejected vide order dated November 1, 2021. The counsel also submitted that the case of
the petitioner is covered under the 1984 policy which was prevailing during relevant time, i.e., on the date of conviction of the petitioner and was also covered by the decision of the High Court in the case of Md. Allauddin Ansari & Ors. vs. The State of Bihar and Ors. (vide order dated 22.12.2022 passed in Cr.W.J.C. No. 861 of 2021 & analogous case). 

The counsel appearing on behalf of the State- respondents submitted that appropriate orders may be passed and the authorities will consider the case of the petitioner for his premature release in the light of the Rule VI (d) of Notification No. 3106 dated December 10, 2002, which stipulates rejection of the case of a prisoner for premature release on one or more occasion by the Remission Board will not be a bar for reconsideration of his case. However, the reconsideration of the case of a convict already rejected could be done only after the expiry of a period of one year from the date of last consideration of his case.

Similar judgement was passed by Justice Jha in Binod Sah @ Binod Kumar Sah @ Binod Kumar vs. The State of Bihar through the Chief Secretary, Government of Bihar, Patna (2025).  

 

Patna High Court judgement of 2015 upholding 2010 order of Additional Sessions Judge-II, Saharsa in rape case of 2007 reaches Supreme Court

In Sanjay Kamat vs. The State of Bihar (2015), Patna High Court's Division Bench of Justices Dharnidhar Jha and Ahsanuddin Amanullah had delivered a judgement dated July 6, 2015 upholding the judgment of conviction dated February 10, 2010 and order of sentence dated February 15, 2010 passed by the Additional Sessions Judge-II, Saharsa in Sessions Trial of 2008 in a rape offence of 2007. By the impugned judgment, Sanjay Kamat, the appellant was held guilty of committing an offence under Section 376 of the Indian Penal Code and he, after being heard under Section 235 Cr.P.C., was directed to suffer rigorous imprisonment for life. Justice Jha concluded:"After apprising the evidence of witnesses, we come to the conclusion that the learned trial judge was perfectly justified, in face of the evidence available to him, to hold that the prosecution had succeeded in bringing the charge home to the present appellant and he appears appropriately passing the order of sentence. In the result, the appeal fails and the same is dismissed."The appellant filed an appeal against the High Court's judgment in the Supreme Court on April 25, 2025. It was verified on June 23, 2025. It came up for hearing on July on July 2, 2025 but was adjourned. 

The appellant had appealed against the judgment of conviction and order of sentence in the High Court. The gist of the allegation was that while playing, a girl child of 6-7 years was lured into visiting the village fair where she could be getting some balloons from the appellant. The grandmother of the victim opposed the taking away of the victim but the appellant succeeded in his act. It was evening and dark and the little child did not come back. The victim was brought to her mother to tell her that it was this appellant who had handed the injured and bleeding little child to them to be handed over to her mother. The incident had occurred at about 5.00 P.M. on October 20, 2007. 

The High Court observed: "In spite of the non-examination of the investigating officer, what we further find from the record is that the investigation was completed and the solitary appellant was sent up for trial which ended in the impugned judgment." It was authored by Justice Jha.

Justice Jha recorded that the trial court judge before proceeding to record the evidence of PW3, the victim of the occurrence, had put certain questions to her in order to judging her competence of appreciating wordly things and thus, her competence to retain facts so as to relate them at a later stage. The judgement reads: "We refrain ourselves from putting those words in this judgment on account of the privacy reasons, but we may note that the victim had indeed narrated the real facts concerning the commission of the offence with her. She had narrated the manner as to how she was ravished and what the appellant had done in that connection. That these two lines we put down only to convey the facts which were stated by PW3 and whatever she had stated or whatever the learned counsel who had appeared during trial on behalf of the appellant had elicited, appear to us quite an unequal a dual between the little child who could be not knowing the crafts of the court and the competence and ingenuity of a counsel in such matters. The questions which were put to the little girl could be as nauseating and disturbing as they could have been, we wish the trial court ought to have prohibited them from being put to the child." Justice Jha observed that those were words which could impart a sense of shame to anyone, "but the counsel was as ruthless in putting those words to the little child during her cross examination". It is apparent from her deposition sheet. He noted: "At any rate, the judges have very limited resources and power to intervene in matters of restraining cross-examination and the answers to those questions further confirm us in our view that it could be the appellant only who had committed the offence." 

Justice Jha observed: "The examination of the investigating officer  could have given only one evidence as to what was the place of occurrence. His non-examination or the non-examination of the persons of the neighbourhood to us do not appear material inasmuch as when a little child of 6-7 years was giving evidence forthrightly in court to the incident, it was immaterial for the court to look for any other evidence." 

Supreme Court detects blunder in judgements of Trial Court, Ahmedabad, Gujarat High Court and Gujarat Government in a rape case

“It can ever be unwise to acquaint the public with the truth about the workings of any branch of government. It is wholly undemocratic to treat the public as children who are unable to accept the inescapable shortcomings of man-made institutions. The best way to bring about the elimination of those shortcomings of our judicial system that are capable of being eliminated is to have all our citizens informed as to how that system now functions. It is a mistake, therefore, to try to establish and maintain, through ignorance, public esteem for our courts.”

- Judge Jerome Frank, in Courts on Trial, Princeton University Press, 1949

Judge Jerome Frank employed an equation, R x F=D where R signifies the rule of law, F signifies the facts, and D signifies the decision. If a judge's decision is wrong, it may be for any of three reasons: she/he may have adopted the wrong rule of law; she/he may have incorrectly found the facts; or she/he may have improperly applied the law to the facts.

On January 9, 2025, in Yogesh Jayantilal Bhavasar vs. The State of Gujarat (2025), Supreme Court's bench of Justices J.B. Pardiwala and R. Mahadevan observed:"We fail to understand how trial court could have imposed sentence of three years rigrous imprisonment for the offence of rape punishable under Section 376 of the Indian Penal Code, 1860 (for short “the IPC”). Section 376 of the IPC, even prior to its amendment in 2013, provided that the minimum punishment shall be that of seven years, which may be for life or for a term which may extend to 10 years." 

It noted that the State had preferred an appeal seeking enhancement of sentence but the appeal was dismissed by the Gujarat High Court. While dismissing the criminal appeal, The High Court failed to note as to how could the trial court have imposed sentence of three years for the offence of rape punishable under Section 376 of the IPC whereas the minimum is seven years.

Unlike in other cases, Supreme Court's website does not provide the name of the High Court's judges who authored the judgment overlooking the error on the part of the trial court. High Court's judgement was delivered by Justices K.S. Jhaveri and G.B.Shah on September 2, 2015. It was authored by Justice Jhaveri. 

The High Court's bench of Justice Z.K.Saiyed has admitted the appeal on April 2, 2012. Th appeal was against the judgement of Additional Sessions Judge, Court No.7, Ahmedabad City in Sessions Case No.269/2008 whereby, original accused no.1 to 3 were convicted for the offences punishable u/s.418, 420, 376 r/w. Section 114 of Indian Penal Code. Criminal Appeal No.674/2012 was preferred by the State seeking enhancement of sentence imposed upon all the three accused persons vide the impugned judgment and order. Criminal Appeal No.374/2012 was preferred by original accused no.2 and 3 against their conviction u/s.376, 418 and 420 r/w. Section 114 IPC. Criminal Appeal No.375/2012 was preferred by original accused no.1 against his conviction u/s.376, 418 and 420 r/w. Section 114 IPC.

on September 1, 2006 an FIR being IC.R. No.137/2006 was registered with GIDC Vatva Police Station, Ahmedabad by the survivor wherein, it was alleged that original accused no.2 & 3, who happen to be the paternal relatives of the survivor, lured the survivor to reside with them at their home, after the death of her father, under the pretext of getting her married to the person of her choice. During her stay, the survivor came into contact with original accused no.1, who was already married and having children. The original accused no.1 lured and persuaded the survivor to get married with him and also developed physical relationship with her. The survivor was also pressurized by the accused persons to get into prostitution. Accused no.1 had physical encounters with the survivor on numerous occasions, which, ultimately, made her pregnant. The survivor was taken to some Hospital, where the pregnancy was aborted. Necessary investigation was carried out and statements of several witnesses were recorded. As sufficient material was found against original accused no.1 to 3, chargesheet was filed against them before the magisterial Court. As the case was sessions triable, it was committed to the Sessions Court for trial. The counsel of the accused submitted that the sexual act was largely a consensual act by the survivor.

The High Court's judgement records that originally the complaint in was filed against nine accused persons. After necessary investigation, charge sheet was filed only against the present three accused persons, as no material was found against the other individuals. It is an undisputed fact that original accused no.1 was married and having two children out of the wedlock. By concealing this fact from the survivor, the accused persons enticed the survivor to get into marriage with original accused no.1 and thereby, led her to indulge into sexual intercourse with accused no.1.

Justice Jhaveri observed:"we are of the view that the Court below has not committed any error in convicting the accused for the offence in question. We are in complete agreement with the reasonings given by and the findings arrived at in the impugned judgment. However, considering the fact that the period of almost ten years has elapsed and the survivor has settled, though we are inclined to enhance the sentence imposed upon the accused but, since it has been brought to our notice that accused no.1 is having children of marriageable age and that his wife has lost almost 80% of eyesight and thereby, his family is facing severe hardship, we are not entertaining the enhancement appeal filed by the State." 

Taking these reasons in to consideration, the Court dismissed the appeals confirmed the impugned judgment and order dated March 17, 2012 passed by the Additional Sessions Judge, Court No.7, Ahmedabad City in Sessions Case No.269/2008. 

The operative part of the judgment and order dated March 17, 2012 passed by V.M.Nayak, Judge of the City Civil Court, Ahmedabad in Sessions Case: 269/2008 reads: “for the offence punishable u/s.376 and 114 of the I.P.C. the accused No.l Yogesh Jayantilal Bhavsar is ordered to undergo a ngorous imprisonment of 3 (Three) years and to pay a fine of Rs.3,000/- (Rupees Three Thousand only) and in default of payment of fine, he shall undergo a further simple imprisonment of 6 (Six) months. Further, for the offence punishable u/s.418 and 114 of the I.P.C. the accused No.I Yogesh Jayantilal Bhavsar is ordered to undergo a ngorous imprisonment of 2 (Two) years and to pay a fine of Rs.3,000/- (Rupees Three Thousand only) and in default of payment of fine, he shall undergo a further simple imprisonment of 3 (Three) months. Further, for the offence punishable u/s.420 and 114 of the I.P.C. the accused No.I Yogesh Jayantilal Bhavsar is ordered to undergo a rigorous imprisonment of 2 (Two) years and to pay a fine of Rs.3,000/- (Rupees Three Thousand only) and in default of payment of fine, he shall undergo a further simple imprisonment of 6 (Six) months. Whereas, for the offence punishable u/s.376 and 114 of the I.P.C. the accused No.2 Sheelaben W/o Goldenbhai @ Ganeshbhai and the accused No.3 Goldenbhai @ Ganeshbhai both, are ordered to undergo a rigorous imprisonment of I (One) year and to pay a fine of Rs.2,000/- (Rupees Two Thousand only) each and in default of payment of fine by any of them, they shall undergo a further simple imprisonment of 3 (Three) months. Further, for the offence punishable u/s.418 and 114 of the I.P.C. the accused No.2 Sheelaben W/o Goldenbhai @ Ganeshbhai and the accused No.3 Goldenbhai @ Ganeshbhai both, are ordered to undergo a rigorous imprisonment of I (One) year and to pay a fine of Rs.2,000/- (Rupees Two Thousand only) each and in default of payment of fine by any of them, they shall undergo a further simple imprisonment of 3 (Three) months. Further, for the offence punishable u/s.420 and 114 of the I.P.C. the accused No.2 Sheelaben W/o Goldenbhai @ Ganeshbhai and the accused No.3 Goldenbhai @ Ganeshbhai both, are ordered to undergo a rigorous imprisonment of 1 (One) year and to pay a fine of Rs.2,000/- (Rupees Two Thousand only) each and in default of payment of fine by any of them, they shall undergo a further simple imprisonment of 3 (Three) months. lt is hereby ordered that all the sentences awarded to the accused persons shall run concurrently and the period spent by them in the prison shall be given as set off. It is also hereby ordered that the muddamaal of the instant case shall be disposed of after expiry of the appeal period and each accused herein shall be provided with one copy of this judgment, free of cost.” 

The High Court's judgement reads: "The original accused are on bail. Their bail bonds stand cancelled. The accused persons are directed to surrender to custody within a period of TWO MONTHS from today to undergo the sentence imposed upon them failing which the investigating agency shall take necessary action against the accused person/s in accordance with law. It is, however, observed that if any of the accused person/s has already undergone the sentence imposed upon them, then such accused person/s is not required to surrender to custody."

Notably, even prior to amendment in the Section 376 of the IPC in 2013, it was provided that the minimum punishment for rape shall be that of seven years, which may be for life or for a term which may extend to 10 years. There is nothing in the judgment of the trial court and the High Court to defend the indefensible act of imposing a sentence of only three years rigorous imprisonment for the offence of rape punishable under Section 376.  

Drawing from Court's on Trial, it can be inferred that Gujarat High Court application of the law to the facts is quite improper. The criminal appeal against the High Court's judgement was filed by the accused in the Supreme Court on December 7, 2015. The act and omission and commission of the State of Gujarat in its failure to file an appeal is quite stark.

The counsel appearing in the Supreme Court for the State of Gujarat admitted that it was "a serious error on the part of both, the trial court as well as the High Court going to the root of the matter." The Supreme Court's order has recorded that the counsel has acknowledged that the State should have appealed in the Supreme Court against the High Court's order which was conscious of the "error committed by the trial court in imposing sentence of three years" but it overlooked it. It is listed for hearing on January 23, 2025.   

P.S.: Notably, on December 16, 2015, in State of Gujarat vs. Jaydip Damjibhai Chavda, the Gujarat High Court's bench of Justices M.R. Shah and Z.K.Saiyed observed: "awarding the sentence of only three and half years for the offence under Section 376 of the IPC by no stretch of imagination it can be said to be imposing   adequate   punishment   commensurate with   the   gravity   of   the   offence. It is required to be noted that in the present case at   the   time   of   commission   of   offence  the accused was aged 38 years of age and both the victim/prosecutrix were less than 16 years of age, out of which one victim/prosecutrix was the step­daughter i.e. accused was the step father." It noted that "The   only   reason   given   by   the   learned trial   Court   while   imposing   the   punishment lesser   than   the   minimum   provided   under Section 376 of the IPC is that the accused is a poor and has a responsibility to maintain his   wife   and   children.   The   aforesaid   can hardly be said to be a cogent reason and/or special circumstances/case while awarding the punishment   less   than   the   minimum   provided under Section 376 of the IPC." 

The penultimate paragraph of the judgement reads: the offence of rape is a heinous crime not only against the individual but also against the society   at   large.   The   offences   against   the woman more particularly under Section 376 of the IPC are increasing. Therefore a massage must   go   to   the   society   that   if   such   an offence is committed it shall be dealt with iron­hand and strictly and that no leniency shall be shown. Thus, in the present appeal the learned trial Court has not exercised the discretion   judiciously   and   it   can   be   said that   the   learned   trial   Court   has   failed   to perform   its   duty   as   a   Judge   while   awarding appropriate   and   adequate   punishment   to   an offender   who   is   convicted   for   the   offence under   Sections   376,   377   and   506(2)   of   the Indian Penal Code." 

The High Court concluded: The impugned judgment and order passed by the learned   Additional   Sessions   Judge,   Court No.13, Ahmedabad, in Sessions Case No.122 of 2009 is hereby quashed and set aside insofar as awarding of sentence for the offence under Sections 376 and 377 of the Indian Penal Code is concerned. While convicting the accused for   the   offence   under   Section   376   of   the Indian Penal Code the accused is sentenced to undergo10 (ten) years R.I.   with   fine   of Rs.10,000/­ and in default of payment of fine to undergo further 06 (six) months R.I. and he   is   also   sentenced   to   undergo 07 (seven) years R.I. for the offence under Section 377 of the Indian Penal Code and fine of Rs.500/­ and in default of payment of fine to undergo further R.I. for 02 (two) months and sentence imposed   by   the   learned   trial   Court   while convicting the original   accused   for   the offence   under   Section   506(2)   of   the   Indian Penal   Code   is   hereby   maintained.   All   the sentences to run concurrently. The accused to surrender   before   the   jail   authority   to  undergo   the   remaining   sentence   as   per   the present judgment and order within a period of 04   (four)   weeks   from   today,   failing   which non­bailable warrant be issued against him to undergo   the   remaining   sentence." 

Breach of promise to marry not same as false promise to marry, rape is different from consensual sex: High Court

Why did the police register the FIR and file a charge sheet in a fake rape case? Why was the The High Court Government Pleader making indefensible submissions?

In Sri Akhil Thomas vs The State of Karnataka (2024), Karnataka High Court's Justice M.Nagaprasanna quashed the proceedings in case against the petitioner pending on the file of XXX Additional Chief Metropolitan Magistrate, Bengaluru. The Court relied on several decisions of the Supreme Court including the decision in Deelip Singh v. State of Bihar, (2005) 1 SCC 88 : 2005 SCC (Cri) 253].

Akhil Thomas (31), the petitioner was in relationship with  Mary Ovia John (31), the 2nd respondent. It was claimed by the latter that the relationship was on the promise of the petitioner getting married to the complainant. The breach of promise of marriage led the complainant to register the complaint against the petitioner for the aforesaid offences. The police conducted investigation and filed a charge sheet. The filing of the charge sheet drove the petitioner to the doors of the High Court.  The counsel appearing for petitioner submitted that the acts from the date they met till the date of registration of the crime were all consensual, but never on a promise of marriage. The complainant was already married and had projected herself to be a divorced lady in bumble app. When the petitioner came to know the fact that she was not yet divorced, he breached the promise of marriage. He submitted that there is no crime that is made for offence of rape on consensual acts. The counsel for the 2nd respondent submitted that the she is not willing to pursue the matter any further and would leave the decision to the hands of the Court. 

The High Court Government Pleader refuted the submission of the petitioner by contending that the petitioner should come out clean in a full blown trial, as the offence laid is the one punishable under Section 376 of the IPC, which provides for the punishment for rape. The Section 376 (1) reads: "Whoever, except in the cases provided for in sub-section (2), commits rape, shall be punished with rigorous imprisonment of either description for a term which [shall not be less than ten years, but which may extend to imprisonment for life, and shall also be liable to fine]."

Notably, Section 64 of The Bharatiya Nyaya Sanhita (BNS) deals with the punishment for rape. It reads: "Whoever, except in the cases provided for in sub-section (2), commits rape, shall be punished with rigorous imprisonment of either description for a term which shall not be less than ten years, but which may extend to imprisonment for life, and shall also be liable to fine." It is evident that except for the change in the section number of the provision for punishment for rape, there is no change in BNS.

In its judgement the High Court has recorded that the narrated facts are not in dispute. "The petitioner and the respondent come in contact on a bumble app. It is the contention of the petitioner that in the app, the complainant had projected herself to be a divorced lady and therefore, the petitioner had evinced interest to develop friendship with the 2nd respondent/complainant. The friendship blossomed into relationship and the relationship went into physical relationship as well. After few months after the relationship, the petitioner then discovers that the complainant is not a divorced lady and is having a child which is 5 years old. It is then he breaches the promise allegedly held for marrying the complainant. This leads the complainant to register the complaint." 

The Court observed: "If the contents of the complaint and the summary of the charge sheet are read in tandem, what would unmistakably emerge is, obliteration of the crime against the petitioner, for the reason that the complainant was already married and the marriage was still subsisting at the time when she projected herself to be a divorced lady without a divorce actually happening. Therefore, there cannot be promise of marriage held on to a NC: 2024:KHC:48393 lady, who was already married. Be that as it may. The other acts alleged are all consensual acts. On such consensual acts in a relationship between the petitioner and the respondent cannot become the offence of rape as obtaining under Section 376 of the IPC." 

The Court drew on several decisions wherein "The Apex Court has delineated the inter-play between the offence of rape and a consensual sexual relationship, both on the false promise of marriage, and promise of marriage. Therefore, a deeper delving into the issue becomes unnecessary, suffice to quote the judgments of the Apex Court rendered over the years. The Apex Court in the case of PRAMOD SURYABHAN PAWAR v. STATE OF MAHARASHTRA has drawn distinction between rape and consensual sexual relationships. While delineating inter-play between promise of marriage and allegation of rape, the Apex Court has held as follows: “14. In the present case, the “misconception of fact” alleged by the complainant is the appellant's promise to marry her. Specifically in the context of a promise to marry, this Court has observed that there is a distinction between a false promise given on the understanding by the maker that it will be broken, and the breach of a promise which is made in good faith but subsequently not fulfilled." 

In Deepak Gulati v. State of Haryana, (2013) 7 SCC 675 : (2013) 3 SCC (Cri) 660], the Supreme Court has held that "there is a clear distinction between rape and consensual sex. The court, in such cases, must very carefully examine whether the complainant had actually wanted to marry the victim or had mala fide motives and had made a false promise to this effect only to satisfy his lust, as the latter falls within the ambit of cheating or deception. There is also a distinction between mere breach of a promise and not fulfilling a false promise. If the accused has not made the promise with the sole intention to seduce the prosecutrix to indulge in sexual acts, such an act would not amount to rape. There may be a case where the prosecutrix agrees to have sexual intercourse on account of her love and passion for the accused and not solely on account of the misconception created by 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. Such cases must be treated differently. If the complainant had any mala fide intention and if he had clandestine motives, it is a clear case of rape. The acknowledged consensual physical relationship between the parties would not constitute an offence under Section 376 IPC."

In Deelip Singh v. State of Bihar, (2005), the Court framed the following two questions relating to consent: (1) Is it a case of passive submission in the face of psychological pressure exerted or allurements made by the accused or was it a conscious decision on the part of the prosecutrix knowing fully the nature and consequences of the act she was asked to indulge in?
(2) Whether the tacit consent given by the prosecutrix was the result of a misconception created in her mind as to the intention of the accused to marry her?
In this case, the girl lodged a complaint with the police stating that she and the accused were neighbours and they fell in love with each other. One day in February 1988, the accused forcibly raped her and later consoled her by saying that he would marry her. She succumbed to the entreaties of the accused to have sexual relations with him, on account of the promise made by him to marry her, and therefore continued to have sex on several occasions. After she became pregnant, she revealed the matter to her parents. Even thereafter, the intimacy continued to the knowledge of the parents and other relations who were under the impression that the accused would marry the girl, but the accused avoided marrying her and his father took him out of the village to thwart the bid to marry. The efforts made by the father of the girl to establish the marital tie failed. Therefore, she was constrained to file the complaint after waiting for some time. 20. With this factual background, the Court held that the girl had taken a conscious decision, after active application of mind to the events that had transpired. It was further held that at best, it is a case of breach of promise to marry rather than a case of false promise to marry, for which the accused is prima facie accountable for damages under civil law. 

In its order dated November 26, 2024, the High Court concluded that "if further proceedings against the petitioner are not obliterated, it would,on the face of it, become an abuse of the process of law and result in miscarriage of injustice."

Victim, mother turn hostile, POCSO accused gets benefit of doubt from Justice Ashutosh Kumar

In Jayant Kumar @ Jayakant Kumar Singh vs. The State of Bihar (2024), by its order dated August 1, 2024, Patna High Court's Division bench of Justices Ashutosh Kumar and Jitendra Kumar observed that "The minimum mandatory sentence under Section 6 of the POCSO Act, 2012 is twenty years" but 1st Additional Sessions Judge-cum-Special Judge, POCSO Act, Saharsa in a POCSO case sentenced Jayant Kumar to undergo rigorous imprisonment (R.I.) for 12 years along with a fine of Rs. 10,000/-for each of the offence and in default of payment of fine. He was directed to suffer R.I. for six months for each on each of the counts by order dated January 31, 2019.  The appellant was convicted for the offences under Section 376 of Indian Penal Code and Section 6 of the POCSO Act, 2012 by judgment dated January 21, 2019. The Court pointed out the error in the sentencing order but ut did not ask the 1st Additional Sessions Judge-cum-Special Judge, POCSO Act, Saharsa to rectify it. 

The appellant was convicted for the having impregnated a 14 years old girl. The victim herself lodged a written report addressed to the Officer-in-Charge of Mahila Police Station on June 14, 2016 alleging that the appellant, her neighbour, had been subjecting her to sexual intercourse for the last six months on the pretext of marrying her. At the time of lodging of the written report, she was “quick with the child”. She alleged that on June 13, 2016 when she went to the appellant to press for the marriage, she was assaulted, abused and thrown out of the house. It was then that she informed her mother, who brought her to the Mahila Police Station. The victim had delivered a child who at the time of Trial was two years old. After examining six witnesses on behalf of the prosecution and one on behalf of the defense, the Trial Court, convicted and sentenced the appellant.

The High Court has recorded that the victim turned volte-face at the Trial. As prosecution witness (PW) 1, she deposed before the Trial Court that the appellant used to call her at his home and rape her. But in her cross-examination, she narrated an absolutely different story. On the prompting of villagers, in order to pressurize the appellant to marry her, the name of the appellant was provided by the villagers and therefore she had lodged this case against him. The appellant had not committed rape on her. Arti Singh, PW3, the Investigator of this case admitted that no document or evidence was furnished by the victim or her family members regarding the accusation against the appellant. The victim was examined by Dr. Ravindra Mohan (PW4) submitted that the victim was pregnant for over eight months. It is apparent that the victim chose to file the case against the appellant at a very advanced stage of pregnancy. Navneet Singh, defense witness (DW) 1 spoke about the good moral character of the appellant. DW1 is one of the panches of the Panchayat in which the village of the victim is located.

The High Court found it "really queer" that even though the victim has delivered a baby but at the Trial, she made a somersault and stated that the appellant was not the father of her child. All the allegations against the appellant were denied by the victim and her mother as well. The Court has recorded that "no effort was made by the prosecution to prove that the victim was less than 18 years of age. Though no objection has been raised regarding the assessment of the age of the victim and consequent assuming of jurisdiction of the Special Court to try this case, but on an overall analysis, we find that even the age of the victim has not been proved. She, at the time of her medical examination was already carrying a pregnancy of eight months and was found less than 18 years of age."

The Court observed that the accusation against the appellant have become "very doubtful". It concluded: "Giving benefit of doubt to the appellant, we set aside the judgment of conviction and order of sentence and set the appellant at liberty....The appellant is directed to be released from jail forthwith if not required or detained in connection with any other case....Let a copy of this judgment be communicated to the Superintendent of concerned jail for record and compliance." The judgement was authored by Justice Ashutosh Kumar.

The Court noted that the Trial Court ought to have determined whether the the victim was a minor at that time or else the case would fall in some other category of offence, namely, reneging on the promise of marriage.