Section 376, IPC: Case Study on the “Mahmood Farooqui v. State (GNCT of Delhi)” case

The Author, Yash Jain is a Final Year LLB student at Jindal Global Law School.

Facts:

The case involved a charge of section 376 of the Indian Penal Code, which is an offence of rape. The charge against the accused was that on 28 March 2015, the accused performed forceful oral sex upon the prosecutrix in his apartment without her consent and the defence from the accused at the trial court stage was that such an instance had never occurred, but after conviction at the trial court stage, the accused introduced an alternative argument (which was accepted by the court) that, even if the act of oral sex had occurred, it was with the consent of the prosecutrix. The evidence produced by both sides included oral testimonies, call detail records and various emails and WhatsApp chats. “The court at the High Court stage had acquitted the accused on the ground that, the events as shown by the prosecution seemed improbable, and even if they were probable, it was unclear whether they happened without the consent of the prosecutrix, and even if the events happened without the consent of the prosecutrix, it was unclear whether the accused understood this lack of consent”[1].

Issue:

The issue before the court was to decide whether rape had occurred as understood under Section 375 (d) (2) of the Indian Penal Code, and the understanding and relevance of Section 90 of the Indian Penal Code is also analysed. Additionally, from an interpretation point of view, the issues that need to be addressed are whether the decision abided by the principle of strict interpretation of penal statutes, and whether the literal rule of interpretation was followed, and whether the mischief rule of interpretation was followed?

Rules:

 The rules of interpretation that have a bearing on the case at hand fall under the broad overview of strict interpretations of penal statutes, which is an accepted principle for when it comes to offences that are criminal in nature. The literal rule and the mischief rule of interpretation have operation in this judgement. When it comes to strict interpretation of penal statutes, it is understood that because crimes involve punishment and incarceration, it is important to interpret penal statutes as stated and to stick to the ambit that is provided in the provision. It has been understood that, if a penal statute has a possibility of multiple constructions, the one which favours the accused should be given preference[2]. But while saying that it is also important that, if the section has a possibility of having a broad understanding and application to bring the mischief/crime at hand under control, it is not necessary to choose a narrow understanding which saves the accused[3]. It is important to interpret the statute comprehensively. Even though these aforementioned principles might feel contradictory, it is important to understand that the over-bearing principle that has developed through jurisprudence is that, the presumption of innocence of accused and a fair trial for an accused should only go as far as the fact that it should remain a fair trial for all the parties involved and[4]. “Denial of a fair trial is as much injustice to the accused as is to the victims or the society.”[5]

Deriving from this principle of strict interpretation of penal statutes, the literal rule and mischief rule/purposive construction also have a role to play in this judgement. The literal rule of interpretation basically says that words and phrases in the statute must be given their most common meaning i.e. a meaning as understood in common parlance, paying heed to the context in which they appear in the statute and the subject matter that they deal with[6]. When it comes to the mischief rule, the understanding is that, the parliament by its act is trying to suppress a mischief/loophole that existed in the law earlier in the common law or a previous statute, and the court needs to interpret the provision in such a way that the mischief that was originally meant to be targeted has to be suppressed or tackled[7].

Analysis of rules and facts:

In my opinion, the aforementioned rules of interpretations that have been accepted for centuries now across countries that follow a common law system, are blatantly disregarded in this judgement of the Delhi High Court. The major two problems that are apparent in this judgement revolve around the interpretation of the concept of consent as made by the court, and how the facts and statutes are interpreted to make it a fair trial, exclusively for the accused and not the other important stakeholders.

The court interprets the concept of consent, with the help of section 375 (explanation 2) read with section 90 of the IPC, even though it is a principle that when a specific section defines a concept for the purpose of an offence, the general explanation/definition provided in the statute need not be accepted and for the purpose of that section (section 375 in this case), the former understanding needs to be used.[8] The prosecutrix was regarded as a “stellar witness” and the court accepts that in a rape case the testimony of the victim needs no corroboration for the conviction[9]. The court tried to read into consent the stereotypes that it itself disregards, by saying that a ‘feeble no’ from a woman can be considered a ‘yes’ in some occasions, and by differentiating the ‘no’ of a learned woman, when compared to a more orthodox women, and when the victim knows the accused when compared to a situation when they are strangers. What the explanation to section 375 requires in a consent is an ‘unequivocal willingness from the victim to the sexual act’, which infers that “men should receive affirmative expressions of consent, regardless of whether this is a normal practice in our sexual encounters or not”[10], but nowhere are these kinds of nuances added to qualify consent which the court has added. It is a blatant disregard of the literal interpretation, as firstly the court is interpreting consent in section 375 differently, and secondly, by incorporating its interpretation of section 90 which requires the perpetrator to know that the consent which was given was due to fear, and only then will it not qualify as consent. The court came to the conclusion that since the accused did not know that the consent was given because of fear, but these kind of interpretations are not warranted under the conviction for rape as envisaged under section 375, so there is mis-interpretation from the court’s end at-least in terms of the literal rule of interpretation and the court fails to go ahead with a strict interpretation of this penal statute, as the principle demands. It has been very perfectly put[11] in the judgement of Tata Consultancy Services v. State of A.P, that “a literal construction would not be denied only because the consequences to comply with the same may lead to a penalty. The courts should not be overzealous in searching for ambiguities or obscurities in words which are plain”[12], and this is something that the judge in this case has endeavoured to do.

Another important point to take into consideration is that this explanation of consent was brought into the Indian Penal Code, by way of amendments in the year 2012, which was in-turn a result of the Justice Verma Committee recommendations, to improve the justice delivery in the rape and sexual offences cases in our country[13]. This clearly shows the purpose/intent of the legislature to suppress the mischief/ lacuna that existed in the law prior to the introduction of the explanation 2 of section 375, which was strongly based on stereotypes like previous sexual activity of the woman, the chastity of the woman to name a few, that existed in the minds of judges and which came through in their judgements. But what the judge in this case did was, rather than suppressing the mischief, he agreed with the very stereotypes that the amendment aimed to end, and mentioned all these stereotypes and tried to draw a relation with the prosecutrix. This is a clear disregard of the mischief rule of interpretation.

Lastly, the entire judgement very starkly shows how the judge interpreted situations and things which benefited the accused, and made sure that the benefit of doubt in many regards is extended to him, thereby making it a fair trial for him, and not the other parties. This can be seen by the discussion on the nature of his bi-polar condition, the discussion on how memory works in human beings and how it can be clouded in certain situations of extreme nature, and how the court disbelieves that the scheme of events did not happen as they were shown by the prosecution[14]. All of this goes against an important tenet of interpretation that has been discussed above that it should not just be a fair trial for the accused, but for all parties.

Conclusion:

After considering all the rules of interpretation and applying them to the facts of this case, and how the judge went about his interpretation, one thing is very clear: this judgement as being one of the first to discuss and deliver judgement on the concept of consent post the amendment of 2012 has set a very archaic and dangerous precedent, and what is even more dangerous is that the Supreme Court of India refused the special leave petition to challenge this acquittal. This judgement has brought in all those age-old stereotypes that a lot of judgements before this and the amendment to the Indian Penal Code had strived to remove from the interpretation that goes into deciding sexual offence cases in our country[15] and while doing this some of the fundamentally accepted rules of interpretation of statute have been blatantly disregarded.

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