Kadamban vs State
2025 Latest Caselaw 11177 Kant

Karnataka High Court

Kadamban vs State on 4 December, 2025

                          -1-
                                   CRL.A No.623 of 2014


  IN THE HIGH COURT OF KARNATAKA AT BENGALURU
    DATED THIS THE 04TH DAY OF DECEMBER, 2025
                                                            R
                        BEFORE
         THE HON'BLE MR. JUSTICE G BASAVARAJA
           CRIMINAL APPEAL NO.623 OF 2014

BETWEEN:
KADAMBAN
S/O PACCHIYAPPAN,
AGED ABOUT 29 YEARS,
R/O UTTIRA MARUR TALUK,
KANCHIPURAM DISTRICT,
TAMIL NADU-672011.
                                             ...APPELLANT
(BY SRI. HASMATH PASHA, SR. COUNSEL FOR
 SRI. KARIAPPA N.A., ADV.)

AND:
STATE OF KARNATAKA
THROUGH
BELLAVAI POLICE STATION
REPRESENTED BY:
THE STATE PUBLIC PROSECUTOR,
HON'BLE HIGH COURT OF KARNATAKA,
BAMNGALORE-560 001.
                                          ...RESPONDENT
(BY SRI. B. LAKSHMAN, HCGP)

     THIS CRL.A. IS FILED U/S.374(2) CR.P.C PRAYING TO
SET ASIDE THE ORDER OF CONVICTION AND SENTENCE
DATED 28.6.2014 PASSED BY THE PRL. DIST. AND S.J.,
TUMKUR      IN S.C.NO.274/2012   -   CONVICTING    THE
APPELLANT/ACCUSED FOR THE OFFENCE P/U/S 366(A) AND
376 OF IPC.

     THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT    ON   18.11.2025  AND  COMING   ON   FOR
"PRONOUNCEMENT OF ORDERS" THIS DAY, THE COURT,
DELIVERED THE FOLLOWING:

CORAM:    HON'BLE MR. JUSTICE G BASAVARAJA
                                -2-
                                            CRL.A No.623 of 2014


                       CAV JUDGMENT

1. Feeling aggrieved and dissatisfied with the

judgment of conviction and order of sentence dated 28th June,

2014 passed by the Principal District & Sessions Judge, Tumkur

in SC.No.274 of 2012 for the offence punishable under Sections

366A and 376 of IPC, accused has preferred this appeal.

2. The brief facts of the prosecution case are that one

Bhagyamma wife of Papanna, a resident of Narasapura village,

Kasaba Hobli, Tumkur Taluk, lodged a complaint before the

Sub-Inspector of Police, Bellavi Police Station, stating that her

daughter who was studying in II PUC, had gone missing from

her house at about 4:00 a.m. on 31st May, 2011. Based on the

said complaint, a case was registered in Crime No.57 of 2011

on 03rd June, 2011. Subsequently, the same complainant

lodged another complaint on 09th June, 2011 after tracing her

daughter along with one person named Kadaman, both of

whom were brought to the Bellavi Police Station.

3. During inquiry, the complainant's daughter stated

that the accused, who was known to her and was working as a

laborer in the Hemavathi Channel, had taken a room on rent

and was in close contact with her. The accused had proposed

marriage to her, and on 31st May, 2011 at about 4:00 a.m., he

induced and persuaded her to leave the house without

informing anyone. Thereafter, the accused took her to

Kanchipuram town in the State of Tamil Nadu, where he

secured accommodation and committed forcible sexual

intercourse with her, against her will on multiple occasions.

4. It is thus alleged that the accused kidnapped the

victim, a minor girl, from her lawful guardianship and

committed rape on her at Kanchipuram, Tamil Nadu. Hence,

the complaint was registered against the accused for offences

punishable under Sections 366A and 376 of the Indian Penal

Code.

5. The case was committed to the Trial Court by the

learned 1st Additional Civil Judge and JMFC-II, Tumkur, in

Criminal Case No. 2491 of 2012 against the accused for

offences punishable under Sections 366A and 376 of the Indian

Penal Code. After the accused appeared before the Trial Court,

after hearing, the Trial Court found sufficient grounds to frame

charges for the said offences. The charges were accordingly

framed, and the accused pleaded not guilty and claimed to be

tried. The prosecution examined thirteen witnesses as PWs 1

to 13 and produced documentary evidence marked documents

as Exhibits P1 to P11, including the complaint, panchanama,

study certificate, medical certificates, and FIRs. After the

prosecution evidence was closed, the accused was examined

under Section 313 of the Cr.PC, and one defense witness,

Sudarshana Babu, was examined as DW1.

6. After the full fledged trial, upon hearing the final

arguments advanced by both the learned Public Prosecutor and

the defense counsel, the trial court after a careful perusal of the

material evidence on record, hold that the accused was guilty

of the offences punishable under Sections 366A and 376 IPC,

and passed final orders accordingly, the Trail Court has convict

the accused herein for alleged offences under section 376 and

366A of IPC and consequently sentenced the appellant herein

for a rigorous imprisonment of 8 years with a fine amount of

Rs.4000/- for the offences under section 376 IPC and

sentenced the appellant herein for a rigorous imprisonment 3

years and with a fine amount of Rs.2,000/- for the offences

under section 366A of IPC. Aggrieved by the same, the

accused preferred this appeal.

Arguments submitted by the Appellant Counsel:

7. The learned counsel for the appellant/accused

submitted that the prosecution case was false, fabricated, and

inconsistent with the facts on record. It was argued that the

complainant, Bhagyamma wife of Papanna of Narasapura

village, lodged a complaint alleging that her daughter, a

student of II PUC, was missing from her house at about 4:00

a.m. on 31st May, 2011, and that the case was registered in

Crime No.57 of 2011 on 03rd June, 2011. Subsequently,

another complaint was lodged on 09th June, 2011 after the

alleged tracing of the victim and the accused, who were

brought to the Bellavi Police Station. The prosecution examined

13 witnesses, while the defense examined one witness. It was

submitted that the prosecution failed to prove any act of taking

or enticing the victim from her mother's custody. It was argued

that the case fell within the ratio decided by the Supreme Court

in S. VARADARAJAN v. STATE OF MADRAS reported in AIR

1965 SC 942, yet the trial court erroneously convicted the

appellant under Section 366A IPC.

8. The learned counsel pointed out that the

statements of the complainant and the victim were

contradictory and did not establish any element of inducement

or coercion. It was contended that the victim, being acquainted

with the accused, voluntarily accompanied him to

Kanchipuram, Tamil Nadu, without any threat or force, and

therefore the essential ingredients of kidnapping or abduction

under Section 366A of the Indian Penal Code were not

satisfied.

9. It was further argued that the allegation of forcible

sexual intercourse was an afterthought and not corroborated by

medical evidence. It was also argued that the trial court

wrongly relied solely on the testimony of the victim, invoking

Section 114A of the Indian Evidence Act, despite the case not

falling under Section 376(2)(a) to (n) IPC. The defense pointed

out that the medical witness (PW-6) stated the hymen was

intact and that the victim was not accustomed to sexual acts.

Exhibit P-3, containing the victim's statement, showed that she

had eloped voluntarily and was neither enticed nor forced.

Moreover, the testimony of PW1-mother, revealed a 12-hour

delay in filing the second complaint and indicated that the

alleged victim was over 20 years of age at the time of the

incident. The defense highlighted that the victim was a

consenting party and that there was no reliable, independent

evidence to substantiate the offence of rape under Section 376

of the IPC. According to the counsel, the prosecution failed to

prove the case beyond all reasonable doubt, and the Trial Court

erred in evaluating the evidence in a proper legal perspective.

10. In order to substantiate his arguments the appellant

counsel has submitted the following citations:

     A.    MANAK CHAND V STATE OF HARYANA 2023 SCC
           ONLINE SC 1397,

     B.    SANTOSH PRASAD VS. STATE OF BIHAR, 2020
           (3) SCC 443,

     C.    ALAMELU VS. STATE OF TAMIL NADU,2011 (2)
           SCC 385

11. The learned counsel for the appellant/accused

contended that The Criminal Law (Amendment) Act, 2013,

which received Presidential assent on 2nd April, 2013, and was

brought into force retrospectively from 3rd February, 2013,

cannot be applied to the offence committed on 31st May, 2011,

as the unamended provisions of law prevail. The victim was

above 16 years of age, as evidenced by Exhibit P6, the school

study certificate showing her date of birth as 15th March, 1995.

Therefore, consent above 16 years would be relevant under

the prior law, and the amended provisions are not applicable

retrospectively. Appellant counsel argued that as the offence

occurred prior to the amendment and the victim's age was

above 16 years, the unamended provisions must govern the

case, and the retrospective application of The Criminal Law

(Amendment) Act, 2013, in this matter is impermissible and

violative of constitutional safeguards. The counsel relied on the

Supreme Court judgments SATAURAM MANDAVI v. STATE OF

CHHATTISGARH & ANR. reported in (2025) AIR (SC) 3439;

KULDEEP SINGH v. STATE OF MADHYA PRADESH reported in

2010(2) Crimes (HC) 389 (MP). On all these grounds, it is

sought to allow this appeal.

Arguments by HCGP for respondent-State:

12. On the other hand, learned High Court Government

Pleader fairly admitted regarding the legal status as to the

applicability of the amended Act (The Criminal Law

(Amendment) Act, 2013, received Presidential assent on 2nd

April, 2013, and was brought into force retrospectively from

03rd February, 2013) and has submitted that Trial Court has

appreciated the evidence on record in its proper perspective

and prays to dismiss the appeal.

13. On hearing the arguments on both sides and on

perusal of records the following points would arise for our

consideration:

1. Whether the Appellant has made out grounds to interfere with impugned judgment or order of conviction?

2. What order?

14. My answer to the above points are as follows:

Point No.1: affirmative;

Point No.2: As per final order

Regarding Point No.1:

15. In Criminal Jurisprudence, it is obvious that the

offences against women and children are interpreted with a

focus on safeguarding their dignity, bodily autonomy, and

fundamental rights. Courts adopt a liberal and purposive

approach, construing protective statutes broadly to ensure

effective deterrence and robust protection. This includes strict

liability for certain offences, a narrow and protective definition

of consent, and contextual consideration of socio-cultural

factors impacting the victim. Additionally, legal presumptions

favoring the victim and alignment with constitutional principles

of equality and dignity guide interpretation. The judicial

approach emphasizes not only punishment but also societal

transformation toward gender justice and safety for women.

16. Primarily the question before me for adjudication is

whether the victim had attained the age of consent, i.e., 16

years of age as per law at the material time and was capable of

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giving her consent to cohabit, whether the victim was raped or

the cohabitation was consensual, and whether the victim was at

all kidnapped or abducted to seduce her to illicit intercourse.

17. From the factual matrix placed before me, the

missing complaint was lodged by victim's mother on 03rd June,

2011 at about 10:45 am before the Bellavi police station. On

9th June, 2011 at 12:10pm PW1, the complainant and mother

of the victim has lodged the complaint, and the same was

registered as Cr.No.57/2011 for the offences sec.366A and 376

of IPC against the appellant /accused,after 3 days of the date

of incident. On perusal of the prosecution papers the victim,

PW-2, was 16 years 2 months 18 days old as of 31st May, 2011,

confirmed by her study certificate ,Exhibit P-6 dated 06th

August, 2011 issued by the principal of government composite

pre-university college Oorukere, Tumkur taluk. Now the point

is, whether this incident may be called rape or consensual sex.

It is evident that the victim was more than 16 years at the time

of the incident. The Ex.P2 FIR goes to show that the victim was

enticed away on the pretext of marriage. On perusal of the

Ex.P3-medical certificate issued by PW2, it is mentioned in the

history column that the victim has voluntarily eloped with a

friend on 01st June, 2011 to 08th June, 2011. It is clear that

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victim after he had called her, voluntarily left her home in

Narasapura on the early morning of 31st May 2011

accompanying the accused and stayed in Kanchipuram, Tamil

Nadu. According to her evidence supported by police witnesses

PW-10 and PW-11, she stayed with accused in a house for

about a week, during which consensual sexual intercourse

occurred. On 08th June, 2011, the police located and brought

both the victim and accused to the Bellavi Police Station

(Exhibit P-8), where the victim was medically examined (Exhibit

P-3) showing an intact hymen and no evidence of assault, as

corroborated by PW-6 Dr. Rekha on 09th June, 2011. Further,

medical evidence from CW-12, Dr.Rudramurthy, medical

certificate-Exhibit P7 and the observation made in paragraph

23 of the impugned judgment, states that there were no signs

of recent sexual intercourse and confirms through his

examination of the accused on 09th November, 2011 that the

accused did not exhibit any physical signs compatible with the

commission of sexual intercourse.

18. Other witnesses such as PW-1 (complainant

mother) and PW-3 and PW-4 provided corroborative evidence

on the victim's absence and the family's actions after the victim

went missing. Additionally, PW-5, the Panch witness, confirmed

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the official Mahazar-Exhibit P4 drawn at the victim's house on

09th June, 2011. The police investigation detailed by PW-11

and PW-12 shows thorough follow-up and collection of relevant

documents, including the study certificate. It is well understood

that unless the prosecution satisfactorily proves the minority of

the victim with credible evidence, the accused cannot be

convicted under the clause of statutory rape and is entitled to

an acquittal where the evidence of rape itself is also not

established beyond doubt.

19. It is to be kept in mind that the victim was more

than 16 years old as on the date of incident. Even according to

the complainant, if she is held to be less than 18 years then

only offence of kidnapping or abduction would attract. Sofar as

the alleged act of kidnapping or abduction of minor girl with

whatsoever purpose is to be proved by the evidence of victim

herself. Because, there is no direct evidence against the

accused to show that he kidnapped or abducted the victim and

made her to go from one place to another place. Such

kidnapping or abduction with an intention should

satisfy ingredients of Section 366 and 366A of IPC. Further, to

prove the other offences i.e., act of rape wrongful confinement

or threat etc., against the accused, the only evidence available

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on record is that of victim and to corroborate the same the

medical evidence on record is to be appreciated. The admitted

facts of this case are that there is no allegation against the

accused that he has kidnapped or abducted the girl with an

intention that she would be forced or seduced to have

intercourse with any person other than the accused. The

allegation of the prosecution is that the accused kidnapped the

victim to marry her. The act of rape is also alleged only against

the accused. Therefore, on plain reading of 366A of IPC it

requires the prosecution has failed to prove that the

procuration of minor girl was with an intention that she should

undergo illicit intercourse or seduced to such intercourse and

thereby he made her to go one place to another place.

According to Section 366A of IPC, it describes whoever, by any

means whatsoever, induces any minor girl under the age of

eighteen years to go from any place or to do any act with intent

that such girl may be, or knowing that it is likely that she will

be, forced or seduced to illicit intercourse with another person

shall be punishable with imprisonment which may extend to ten

years, and shall also be liable to fine. If the act of kidnapping or

abduction is proved that the victim was minor as on the date of

incident, then the proper Sections that would be applicable

is Section 366A of IPC.

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20. Given the absence of any medical or testimonial

evidence supporting forcible intercourse or kidnapping, and

considering that the victim was with accused in the house at

Kanchipuram, was at her will. The prosecution failed to prove

beyond reasonable doubt the offences under Sections 366A and

376 of the Indian Penal Code. The presence of intact hymen,

lack of injuries, and the victim's own admission of consensual

relationship critically weaken the prosecution case. The medical

opinion-Ex.P7 given by CW-12 Dr.Rudramurthy, in particular,

supports that no forceful act occurred. Hence, the reasoning

compels a conclusion that the charges against the accused lack

substantive proof and must be viewed with the strictness

required in criminal adjudication. Since no third person is

involved in this case and the victim was not seduced or forced

to have intercourse with an another person in this case.

Therefore, on prima facie examining the ingredients

of Section 366A of IPC, I find that the conviction of the accused

of the offence punishable under Section 366A is not sustainable

in law. Therefore, the conviction of the accused for the offence

punishable under Section 366A of IPC is not sustainable in law.

21. The second allegation of the prosecution against the

accused is under section 376 of IPC, the essential ingredients in

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order to attract offence punishable under Section.376 of IPC,

the prosecution has to prove beyond reasonable doubt

the ingredients that the accused had sexual intercourse with

the victim. The ingredients that described the offence of rape is

defined under Section 375 of IPC. Firstly, it must be proved

that it is against her will or without her consent. Then the

consent said to have by obtained by putting her or any person

in whom she is interested, in fear of death or of hurt, with her

consent, when the man knows that he is not her husband and

that her consent is given because she believes that he is

another man to whom she is or believes herself to be lawfully

married, with or without consent when at the time of giving

such consent, by reason of unsoundness of mind or intoxication

or the administration by him personally or through another of

any stupefying or unwholesome substance, She was unable to

understand the nature and consequences of that to which she

gives consent. The date of offence is 31st May, 2011, even

according to the complaint at Ex.P1 filed by the mother of the

victim was shown to be 16 years 2 months 18 days, as on the

date of incident. Therefore, the prosecution has to prove the

act of alleged intercourse with the victim by the accused should

fall within the definition of rape provided under Section 375

of IPC and the explanation therein. On perusal of the evidence

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of PW1 and 2, it can be made-out that the pw2, the victim was

forcefully taken in the wee hours of the date of incident,in the

absence of her consent in the false pretext of marriage. The

medical certificates-Exhibits P6 and P7 of both victim and

accused issued by PW6 and PW9 respectively, not help the

prosecution to prove the accusations beyond reasonable doubt.

22. Before analyzing the evidence of the victim, I want

to consider Section 114A of the Evidence Act applicable or not.

Earlier Section 114A of the Indian Evidence Act, inserted by

the Criminal Law (Amendment) Act, 1983, later in substituted

by Criminal Law (Amendment) Act, 2013, stipulates that in

prosecutions for rape under sub-section (2) of Section 376 of

the Indian Penal Code, where sexual intercourse by the

accused is established and the woman testifies before the court

that she did not consent, the court shall presume the absence

of consent. This provision was introduced to address difficulties

in proving lack of consent in rape cases, especially when no

witnesses are available and scientific evidence like DNA is not

always present. The presumption created by this section helps

in prosecuting rape cases by shifting the burden of proof

regarding consent to the accused, although it remains

rebuttable with sufficient counter-evidence. Section 114A of

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the Evidence Act reads thus: "114A. PRESUMPTION AS TO

ABSENCE OF CONSENT IN CERTAIN PROSECUTION FOR RAPE.-

In a prosecution for rape under clauses (a) to (n) of sub-section

(2) of section 376 of the Indian Penal Code (45 of 1860), where

sexual intercourse by the accused is proved and the question is

whether it was without the consent of the woman alleged to

have been raped and such woman states in her evidence before

the court that she did not consent, the court shall presume that

she did not consent. Explanation.-In this section, "sexual

intercourse" shall mean any of the acts mentioned in clauses

(a) to (d) of section 375 of the Indian Penal Code (45 of

1860)."

23. The condition precedent for applicability of Section

114A of the Evidence Act is that the prosecution must be for

the offence of rape under various clauses set out therein under

sub-Section (2) of Section 376 of the IPC. Considering the

prosecution story even under the shelter of the presumption

under section 114A of evidence act, no charge under various

clauses set out Section 376(2) IPC was framed against the

appellant-accused, which attracts a more stringent punishment

than under Section 376(1) IPC. Absent such a charge at any

stage, neither the prosecution nor the victim can invoke

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various clauses of Section 376(2) IPC. Crucially, during

examination under Section 313 CrPC, no such questions were

put in order to charge the appellant/accused to fit in any of the

various clauses. Consequently, the mandatory presumption

under Section 114A of the Evidence Act does not apply, placing

the burden squarely on the prosecution to prove absence of

consent. The fact that has come out from the evidence is that

the victim was in love with the accused and has voluntarily

eloped in the wee hours on the date of incident. Hence

separating truth from falsehood in evidence is encapsulated in

the legal principle that the court has a duty to separate the

grain from the chaff, as I believe "Veritas est Justitiae Mater"

means "truth is the mother of justice". The cumulative effect of

the above discussion is that it is very unsafe to rely upon the

testimony of the victim in this case.

24. I have perused the judgments submitted by the

appellant counsel. Having been considered the discussions

made and also applying the ratio laid down in the cases of

MANAK CHAND, Santosh Prasad and Alamelu (supra); to the

facts of this case, I am of the opinion that the prosecution has

failed to prove its case.

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25. The counsel for the appellant has vehemently

argued and has readout the relevant paragraphs as to the

retrospective enforcement of the Criminal Law (Amendment)

Act, 2013. I have observed many number of judgments by the

trial court where the trial court has grossly erred in application

of criminal laws. The principle of non-retrospectivity in criminal

law is a fundamental tenet rooted in the maxim "Nullum

crimen, nulla poena sine lege," means "no crime or punishment

can be imposed without a pre-existing law". In the present

case, the offence was committed on 31st May, 2011, prior to

the enactment and retrospective enforcement of the Criminal

Law (Amendment) Act, 2013. The unamended provisions of

law, therefore, govern the case, which hold that consent below

16 years of age is immaterial. The victim's date of birth, as per

Exhibit P-6, confirms that she was above 16 years at the time

of the offence.

26. The appellant's counsel relied on the binding

principles enshrined under Article 20(1) of the Constitution of

India, which prohibits the retrospective application of criminal

laws that would impose a greater punishment than what was

prescribed at the time of the commission of the offence.

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27. The Supreme Court judgment in SATAURAM

MANDAVI v. STATE OF CHATTISGARH AND ANOTHER reported

in (2025) AIR(SC)3439, at paragraphs 6 to 11 of the judgment

has observed thus:

"6. The submission advanced on behalf of the appellant is that the incident occurred on 20.05.2019. While the conviction is under Section 6 of the POCSO Act, the Protection Of Children From Sexual Offences (Amendment) Act, 2019, which came into force on 16.08.2019, enhanced the minimum sentence to 20 years and redefined "imprisonment for life" to mean imprisonment for the remainder of the natural life. It is the appellant's contention that the sentencing court erred in applying the amended provisions retrospectively, as the incident in question took place prior to the amendment.

7. The State, opposing any modification in sentence, contends that the appellant does not deserve any leniency considering the nature and gravity of the offence committed.

8. Section 6 of the POCSO Act, prior to the 2019 amendment, read as under: "6. Punishment for aggravated penetrative sexual assault - Whoever commits aggravated penetrative sexual assault shall be punished with rigorous imprisonment 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."

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9. This Court, having found no merit in the challenge to conviction, had confined its notice to the question of sentencing. However, we find merit in the appellant's submission that since the offence was committed on 20.05.2019, the amended provision of Section 6 of the POCSO Act, which came into force on 16.08.2019, could not have been applied to his case.

10. In this regard, Article 20(1) of the Constitution of India is relevant and reads as under:

"20. Protection in respect of conviction for offences -

(1) No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence."

11. The Constitutional bar against retrospective imposition of a harsher penalty under Article 20(1) is clear and absolute. The Trial Court, in applying the enhanced sentence introduced by the 2019 Amendment to Section 6 of the POCSO Act, has effectively subjected the appellant to a punishment greater than that which was permissible under the law in force at the time of commission of the offence which is clearly violative of the bar contained in Article 20(1) of the Constitution of India."

28. Where the Court held that retrospective application

of enhanced criminal provisions violates Article 20(1) of the

Constitution, which prohibits imposing a heavier penalty than

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that prescribed at the time the offence was committed. The

Court in Mandavi clarified that while conviction under the

amended law could stand, enhanced punishment introduced by

statutory amendments post-offence could not be applied

retrospectively.

29. In Kuldeep Singh v. State of Madhya Pradesh 2010

2 Crimes (HC)389(MP):

"3. Shri Surendra Singh, learned senior counsel canvassed only point for consideration by this Court that Ganja was seized from the possession of the appellant on 5-3-2001 and that day according to the un-amended Old Act i.e. Narcotic Drugs and Psychotropic Substances Act, 1985 under Section 20(i) of illegal possession of Ganja maximum jail sentence prescribed was five years and fine of Rs. 50,000/-, whereas learned trial Court has convicted the appellant under Section 20(b)(c) of the Act which was amended by Act 9 of 2001 by Section 7 and this amendment came into force w.e.f. 2-10-2001. In this provision, for commercial quantity the minimum sentence of 10 years which may extend to 20 years and fine of Rs. One lac which may extend to Rs.2 lacs is prescribed. Learned senior counsel has placed reliance in support of his contention on Supreme Court judgment passed in cases of Soni Devrajbhai Babubhai v. State of Gujarat and others, AIR 1991 SC 2173 : (1991 Cri LJ 3135) and Tiwari Kanhaiyalal etc. v. The Commissioner of Income-tax,

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Delhi, AIR 1975 SC 902 para 6 (1975 Cri LJ 781) which reads as under :-

"6. Even clause (1) of Article 20 of the Constitution does not help the appellant. It is not a post facto legislation which is being pressed into service against him. As pointed out by a Constitution Bench of this Court in Rao Shiv Bahadur Singh v. State of Vindhya Pradesh, 1953 SCR 1188 at p. 1198 : (AIR 1953 SC 394 at p. 398): (1953 Cri LJ 1480):

"This article in its broad import has been enacted to prohibit convictions and sentences under ex post facto laws. The principle underlying such prohibition has been elaborately discussed and pointed out in the very learned judgment of Justice Willes in the well-known case of Phillips v. Eyre. (1870) 6 QB 1 at pp. 23 and 25 and also by the Supreme Court of U. S. A. in Calder v. Bull. ( 1780) 3 Dalles 386 : ( 1 Law Ed 648 at p.

649). In the English case it is explained that ex post facto laws are laws which voided and punished what had been lawful when done. There can be no doubt as to the paramount importance of the principle that such ex post facto laws, which retrospectively create offences and punish them are bad as being highly inequitable and unjust."

Article 20(1) also prohibits the subjecting of any person to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence. (Emphasis supplied). On the facts alleged against the appellant, if found to be true, at the time he made the false statements in the declarations he did commit an offence under Section 52 of the 1922 Act. Sub-section (4) of Section 28 did

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not obliterate the factum of the commission of the offence and did not transmute the offence into an innocent act because of the imposition of penalty under Section 28. Such imposition merely barred the prosecution for the trial and conviction of the commission of the offence. The penalty having been imposed under section 271 of the 1961 act the launching of the prosecution became permissible and was not hit by Article 20(1) of the Constitution. We are inclined to think that the offence, if any, committed by the appellant was under section 52 of the 1922 act as the allegedly false statements in declarations were made at a time when the said Act was in force. No false statement in any declaration seems to have been made under the 1961 Act to form the basis of a charge against the appellant under section 277 of that act. The punishment provided in this section is greater than the one engrafted in section 52 of the 1922 act. To that extend only the appellant would be entitled to press into service the second part of clause (1) of Article 20 of the Constitution which says that no person shall :

"be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence."

4. Commissioner Of Wealth Tax, Amritsar v.

Suresh Seth ., AIR 1981 SC 1106 para 11 which reads as under :-

"11. A liability in law ordinarily arises out of an act of commission or an act of omission. When a person does an act which Law prohibits him from doing it and attaches a penalty for doing it, he is stated to have

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committed an act of commission which amounts to a wrong in the eye of law. Similarly when a person omits to do an act which is required by law to be performed by him and attaches a penalty for such omission, he is said to have committed an act of omission which is also a wrong in the eye of law. Ordinarily a wrongful act or failure to perform an act required by law to be done becomes a complete act of commission or of omission, as the case may be, as soon as the wrongful act is committed in the former case and when the time prescribed by law to perform an act expires in the latter case and the liability arising therefrom gets fastened as soon as the act of commission or of omission is completed. The extent of that liability is ordinarily measured according to the law in force at the time of such completion. In the case of acts amounting to crimes the punishment to be imposed cannot be enhanced at all under our Constitution by any subsequent legislation by reason of Art. 20(1) of the Constitution which declares that no person shall be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence. In other cases, however, even though the liability may be enhanced it can only be done by a subsequent law (ofcourse subject to the Constitution) which either by express words or by necessary implication provides for such enhancement. In the instant case the contention is that the wrong or the default in question has been altered into a continuing wrong or default giving rise to a liability de die in diem, that is, from day to day. The distinctive nature of a continuing wrong is that the law that is violated makes

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the wrong doer continuously liable for penalty. A wrong or default which is complete but whose effect may continue to be felt even after its completion is, however, not a continuing wrong or default. It is reasonable to take the view that the Court should not be eager to hold that an act or omission is a continuing wrong or default unless there are words in the statute concerned which make out that such was the intention of the legislature. In the instant case whenever the question of levying penalty arises what has to 'be first considered is whether the assesseelias failed without reasonable cause to file'the return as required by law and if it is held that he has failed to do so then penalty has to be levied in accordance with the measure provided in the Act. When the default is the filing of a delayed return the penalty may be correlated to the time lag between the last day for filing it without penalty and the day on which it is filed and the quantum of tax or wealth involved in the case for purposes of determining the quantum of penalty but the default however is only one which takes place on the expiry of the last day for filing the return without penalty and not a continuing one. The default in question does not, however, give rise to a fresh cause of action every day. Explaining the expression 'a continuing cause of action' Lord Lindley in Hole v. Chard Union (1894) 1 Ch 293 observed :

"What is a continuing cause of action? Speaking accurately, there is no such thing; but what is called a continuing cause of action is a cause of action which arises from the repetition of acts or omission of the same kind as that for which the action was brought".

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30. The Supreme Court reiterated that penal statutes

must be applied as per the law in force at the time of the

offence, and retrospective application of harsher punishments

breaches constitutional protections under Article 20(1). In this

background appellant's counsel argued that as the offence

occurred prior to the amendment and the victim's age was

above 16 years, the unamended provisions must govern the

case, and the retrospective application of The Criminal Law

(Amendment) Act, 2013, in this matter is impermissible and

violative of constitutional safeguards. The Supreme Court in

the case of SATAURAM MANDAVI (supra) held that

retrospective application of enhanced punishments violates this

constitutional safeguard and must not be permitted. Similarly,

in the case of KULDEEP SINGH JAT (supra), the Apex Court

reiterated that penal provisions must be applied prospectively,

and retrospective punitive measures infringe upon the rights

guaranteed under Article 20(1). The doctrine of fairness and

legal certainty demands that individuals be judged only by the

law in force at the time of their actions, preserving vested

rights and preventing arbitrary penalties. Hence, applying the

amended provisions retrospectively in this case is

impermissible. The maxim "Lex prospicit, non respicit" i.e. "the

law looks forward, not backward" aptly encapsulates this

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principle, underscoring that laws must operate prospectively

unless expressly stated otherwise. The Trial Court's application

of the amended law with retrospective effect thus amounts to

an infraction of constitutional protections and the settled

principles of criminal jurisprudence, warranting reversal of the

conviction and sentence passed under the amended statute.

Hence, I answer point No.1 in the Affirmative.

Regarding Point No.2:

31. For the aforestated reasons and discussion, I

proceed to pass the following:

ORDER

i) The appeal filed by the appellant / accused

under Section 374(2) of Cr.P.C is hereby

allowed. Consequently, the judgment of

conviction and order of sentence rendered by

the trial Court in S.C.No.274/2011 dated

28.06.2014 is hereby set aside.

ii) Consequent upon setting aside the judgment of

conviction, the accused is acquitted for the

offences punishable under Sections 366A

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and 376 of IPC, 1860 for which charge has been

leveled against him.

iii) Office is directed to send the copy of the

judgment along with the record immediately to

trial court for compliance .

iv) If any bail bond has been executed by the

accused, the same shall stand cancelled.

v) The registry is directed to circulate the copy of

the judgment to all the judicial officers and to

the directorate of prosecution for the strict

compliance of the same.

Sd/-

(G BASAVARAJA) JUDGE

lnn