IPC CASE COMMENT

MOHIT BYADWAL

BA0190035

Case: Mahmood Farooqui vs State (Govt Of Nct Of Delhi)1

IN THE HIGH COURT OF DELHI AT NEW DELHI before MR JUSTICE ASHUTOSH

APPELLANT- STATE (GOVT OF NCT OF DELHI)

RESPONDENT- MAHMOOD FAROOQUI

This case is a landmark judgment in deciding how will a person without intention be
punished under a law made by a statute, which does not expressly by words rule out the
element of mens rea in determining an offence. This case further states the importance of
legislative intent in determining whether mens rea will be should be ruled out or not to meet
the desired goal intended to achieve by the lawmakers.

The controversy involved here is that whether Mens Rea should be treated as an essential
element without which a crime cannot take place or can mens rea be exempted in certain
circumstances? To answer and analyse this question, this case played a significant role, and
its interpretations have since then been followed in various judgments and legislation.

Majorly in this judgement, the court clarified the level of flexibility which can be exercised in
interpreting the elements of mens rea during extra-ordinary situations related to public
welfare at large. This issue has been aptly defined in this judgment by the honourable bench.

FACTS OF THE CASE

The above-stated 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

1
CRL.A.944/2016
 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.

ISSUES RAISED

1. Whether or not there was consent given by the prosecutrix

JUDGMENT

The majority judgment construed that mens rea even though an essential element of a crime
can be exempted at times when the wording or the legislative intent of the law specifically or
by implication rules out mens rea as an element in the construction of an offence under
criminal law. With this, the court passed the order for the restoration of the order of
conviction passed by the magistrate and to reduce the period of imprisonment, which has
already been suffered by the respondent after the magistrate’s order.

VIEWS ON THE JUDGEMENT GRANTED BY THE HONOURABLE COURT

After looking at the facts and circumstances of the case it can be concluded that there are
certain points that are in favour of the appellant and some in favour of prosecutrix.

If we look at the strong points from the side of the appellant it can be said that if the
appellant, in reality, was suffering from bipolar disorder then, in that case, he can claim the
defence of insanity under section 94 of IPC. This is because an insane person is not aware of
the nature and consequences of his act.

If we look at the strong points of prosecutrix then the 1st one will be that that consent was not
a free consent rather it was given under fear and was taken by the application of force.
Section 90 of IPC clearly states that consent taken from a person by causing fear or threat is
not a valid consent in the eyes of law. Also, consent refers to an unequivocal voluntary
agreement between the two parties which can be communicated by verbal or non-verbal
means. Secondly, the girl was afraid that if she would complain of the appellant as he was in
a good position then it could be a case that she will have to face the same incident as was in
the Nirbhaya case.

After taking into consideration the facts and circumstances and pieces of evidence produced
in the case the judgement given but the honourable court should be set aside or quashed as
the decision for the acquittal was not correct because the consent of the girl was taken under
fear and threat and thus was not free consent.

RULE APPLIED

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. 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

2
G.P Singh, AK Patnaik, ‘Principles of Statutory Interpretation (Lexis Nexis)’, Chapter 11, Page 1,
<file:///C:/Users/Yash%20Jain/Downloads/Bhatia%20and%20BALCO%20-%20Lessons%20Learnt%20(YASH
%20JAIN).pdf>, Dilip Kumar Sharma v State of MP, AIR 1976 SC 133; State of West Bengal v Swapan
Kumar, AIR 1982 SC 949.
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. “Denial of a fair trial is as much injustice to the accused as is to the
victims or the society3.”

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 4. 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 tackled5.

ANALYSIS & INTERPRETATION OF 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 used6. 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. 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
3
State of Punjab v Gurmit Singh, (2014) 9 SCC 632.
4
Mayank Shekhar, ‘Rules of Interpretation’, <https://www.legalbites.in/law-notes-interpretation-rules-of-
interpretation/>.
5
Ibid.
6
Mrinal Satish, ‘The Farooqui Judgement’s interpretation of Consent Ignores Decades of Rape-Law Reform
and Catastrophically Affects Rape Adjudication’.
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”, 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 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
plain7”, 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. 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.

7
(2005) 1 SCC 308.
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. 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 country8 and while
doing this some of the fundamentally accepted rules of interpretation of statute have been
blatantly disregarded.

8
Rupali Samuel, ‘The Acquittal in the Mahmood Farooqui Case: A Mirror to us all’,
<https://www.barandbench.com/columns/acquittal-mahmood-farooqui-case>.