It is an irony of a sort that Constitution Bench of the Supreme Court delivers a judgment (Lalita Kumari Vs Govt. of U.P. & Ors) permitting preliminary enquiry in exceptional cognizable cases where there is abnormal delay in initiating criminal prosecution and reporting without explaining the reasons for delay. Thus, it permits the police to hold back registration of FIR until prima facie satisfied. Before the ink dries away from the Judgment, within hours, Supreme Court had to set up a committee to conduct a preliminary enquiry into the allegations of a cognizable offence committed by a former Judge of the same court. Going by the allegations in the blog, one can safely presume that the offence squarely fall under Section 354 IPC, i.e. “assault or criminal force to woman with intent to outrage her modesty”. To be specific, ‘whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will there by outrage her modesty, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both’. Since the offence is alleged to have been committed during the regime of old code, the newly introduced and more stringent section 354(A) of Criminal Law Amendment Act, 2013 is not attracted.
Normally, the sad and shocking contents of written blog are enough for the police to lodge an FIR. The writ of Lalita Kumari is all for registration of an FIR with its full vehemence, in case, the information discloses commission of a cognizable offence. As disclosed, the content of the blog surely exposes a cognizable offence. Lalita Kumari, through one of its directives has given a little space to the author of the judgement, none other than Chief Justice of India to constitute a committee for a preliminary enquiry. What a strange coincidence, one little direction by himself has saved him and Indian Judiciary from a great embarrassment for the time being. I mean it, just for the time being. Lalita Kumari permits preliminary inquiry in those cases where there is abnormal delay/laches in initiating criminal prosecution and reporting the matter without satisfactorily explaining the reasons for delay. As per the controlled narration appearing in the blog, the incident did happen sometime in the third week of December, 2013, so there occurs a delay of 11 months in reporting the offence.
Though it is inappropriate to comment this way, I must say that no blog in recent times may have undergone such media scan. The every word of it is subjected to legal scrutiny with all available aides of interpretative skills, intrinsic and all external aids of interpretation. Everyone, wanted to know who the Judge is. The Court corridors are full of rumours. The more inquisitive brothers have prepared a chart showing those who retired since brutal Delhi gang rape with convincing probabilities and possibilities. It gets dirty everyday and the image of wonderful and honest personalities who retired in the interregnum is left to the wildest imaginations of story tellers in the bar. It is now left to the conscience keepers and leaders of Indian Judiciary to end the climax.
Whoever it is, I am sure, there will be at least half a dozen judgments written by the Judge in controversy against sexual harassment in his ‘illustrious’ carrier, which will become handy for a Trial Magistrate to deal with. If there is any semblance of truth in the allegations, there cannot be any space for any kind of immunity or privilege to the wrong doer. Since person accused of is retired, the CJI and his team should only be bothered about the privilege and prestige of judiciary.
What If, the complainant sticks to her allegation?. Country would see a former judge of Indian Supreme Court appearing before the Magistrate and facing prosecution. Surely, that day would be regarded as the darkest for Indian Judiciary. Be you ever so high, the law is always above you!.
Boris Paul is a practicing lawyer. He can be reached at firstname.lastname@example.org