Traditionally, the prosecutions of an accused used to be dependent upon the actual commission of an offence under an existing law.
However, the recent trend, an exponential one, has been to prosecute all and sundry, by giving any (absurd) interpretation to the letter of the law, completing ignoring the spirit of the law.
Such interpretations are certainly against the basic principle that a criminal statute should receive a strict interpretation. Au contraire, the principle followed is: As the process is the punishment, therefore prosecute all, by the ‘loosest possible’ interpretation.
While doing so, the Investigating Agencies forget that ‘vague laws offend several important values’ and cannot be used to criminally prosecute anyone.
Prosecution follows only when an offence is committed; offence as defined by law and not by interpretation. “Offence” has been defined under Section 2 (n) of the Code of Criminal Procedure, 1973 to, inter alia, mean any act or omission made punishable by any law for the time being in force. As such, for commission of an offence, there must be a law which makes commission of any act or omission punishable.
The police force is not a moral police force [Ref: Swapan Paul v. State of Tripura, 2015 SCC OnLine Tri 447], and thus, following the letter and spirit of the law is mandatory and non-derogable.
A strict interpretation of a criminal statute is all the more necessary, as unlike civil cases, criminal prosecutions can lead to deprivation of liberty of the accused, apart from other consequences.
That is the reason for the basic, yet most fundamental principle: A moral conviction however strong or genuine cannot amount to a legal conviction supportable in law. [Ref: Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116 (Three Judge Bench)]
Even the authors of the Penal Code, 1860 stated that: “… We cannot admit that a Penal Code is by any means to be considered as a body of ethics, that the legislature ought to punish acts merely because those acts are immoral, or that, because an act is not punished at all, it follows that the legislature considers that act as innocent. Many things which are not punishable are morally worse than many things which are punishable. The man who treats a generous benefactor with gross ingratitude and insolence deserves more severe reprehension than the man who aims a blow in passion, or breaks a window in a frolic; yet we have punishment for assault and mischief, and none for ingratitude. The rich man who refuses a mouthful of rice to save a fellow creature from death may be a far worse man than the starving wretch who snatches and devours the rice; yet we punish the latter for theft, and we do not punish the former for hard-heartedness.”. [Ref: R. Sai Bharathi v. J. Jayalalitha, (2004) 2 SCC 9]
From the above, it is clear that for an accused to be legally prosecuted, it is a requirement of law that the prosecution should not be based on a vague law, by giving it an interpretation of choice by the investigating agency.
The same is clear from the following principles:
I. An enactment is void for vagueness if its prohibitions are not clearly defined
II. Requirement under Article 20 (1) is that a law needs to be clear and not vague:
III. A person must know with reasonable certainty and must have a fair warning as to what his obligation is and what acts constitute a criminal offence
IV. When the term is not properly defined, it constitutes a serious infirmity in the concerned law
V. Specification / Precision / Accuracy is necessary so as to avoid any ex-post facto interpretation
VI. Permitting giving wide interpretations would make the law a weapon of torture and wonton abuse
VII. Failure for the prosecution witnesses to definitely and clearly define a term is fatal to the prosecution
VIII. Police officer is no expert under a statute, so that his dogmatic / opinionated assertions, without anything more, be accepted
The said principles are explained as under:
I. An enactment is void for vagueness if its prohibitions are not clearly defined
In Kartar Singh v. State of Punjab, (1994) 3 SCC 569 (Constitutional Law), it was held as under:
130. It is the basic principle of legal jurisprudence that an enactment is void for vagueness if its prohibitions are not clearly defined. Vague laws offend several important values. It is insisted or emphasised that laws should give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Such a law impermissibly delegates basic policy matters to policemen and also judges for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application. More so uncertain and undefined words deployed inevitably lead citizens to “steer far wider of the unlawful zone … than if the boundaries of the forbidden areas were clearly marked”.
II. Requirement under Article 20 (1) is that a law needs to be clear and not vague:
In Union of India v. Ganpati Dealcom (P) Ltd., 2022 SCC OnLine SC 1064 (Three Judge Bench), while dealing with the question whether the Prohibition of Benami Property Transactions Act, 1988 [for short ‘the 1988 Act’], as amended by the Benami Transactions (Prohibition) Amendment Act, 2016 [for short the ‘2016 Act’] has a prospective effect, it was observed as under:
57. Coming back to the 1988 Act, the two provisions with which we are concerned are Sections 3 and 5 of 1988 Act. They are required to be separately analysed herein. At the outset, we may notice that the enactment was merely a shell, lacking the substance that a criminal legislation requires for being sustained. The reasons for the same are enumerated in the following paragraphs.
… …
60. Second, ignoring the essential ingredient of beneficial ownership exercised by the real owner contributes to making the law even more stringent and disproportionate with respect to benami transactions that are tripartite in nature. The Court cannot forcefully read the ingredients developed through judicial pronouncements or under Section 4 (having civil consequence) into the definition provided under Sections 2 and 3 (espousing criminal consequences), to save the enactment from unconstitutionality. Such a reading would violate the express language of Section 2(a), of excluding one ingredient from the definition of ‘benami transaction’, and would suffer from the vice of judicial transgression. In removing such an essential ingredient, the legislature did not identify any reason or principle, which made the entire provision of Section 3 susceptible to arbitrariness. Interestingly, for tripartite benami transactions, the 2016 Act brings back this ingredient through Section 2(9)(A)(b). In this context, we may state that it is a simple requirement under Article 20(1) that a law needs to be clear and not vague. It should not have incurable gaps which are yet to be legislated/filled in by judicial process.
… …
67. In any case, such an inconclusive law, which left the essential features to be prescribed through delegation, can never be countenanced in law to be valid under Part III of the Constitution. The gaps left in the 1988 Act were not merely procedural, rather the same were essential and substantive. In the absence of such substantive provisions, the omissions create a law which is fanciful and oppressive at the same time. Such an overbroad provision was manifestly arbitrary as the open texture of the law did not have sufficient safeguards to be proportionate.
From the above, it is clear that:
- A law needs to be clear and not vague, having incurable gaps which are yet to be legislated/filled in by judicial process.
- Court cannot forcefully read the ingredients developed through judicial pronouncements into the definition provided by the legislature.
- In the absence of a proper shell / substance that a criminal legislation requires, the same would be considered to be an inconclusive law and can never be countenanced in law; such absence of substantive provisions, the omissions create a law which is fanciful and oppressive at the same time.
III. A person must know with reasonable certainty and must have a fair warning as to what his obligation is and what acts constitute a criminal offence
The most fundamental principle of criminal jurisprudence which reflects fair play is that a person must know with reasonable certainty and must have a fair warning as to what his obligation is, and what act of commission or omission on his part would constitute a criminal offence.
In State of Bihar v. Bhagirath Sharma, (1973) 2 SCC 257 : 1973 SCC (Cri) 809, while dealing with the alleged criminal violation based on the interpretation of the terms “tyres and tubes of motor cars”, the Court that:
- The order did not give, with certainly and clarity, an adequate guidance to those who wanted to be law-abiding.
- The order, thus, did not law down an ascertainable standard of guilt by unambiguous specification.
- However, a person should know with reasonable certainty and fair warning about his obligations before he can be called upon to answer a charge.
- This approach is in conformity with the general requirement that the act or default should be associated with a legally blameworthy condition of mind.
It was held as under:
6. In this background even assuming that from a broad point of view, “tyres and tubes of motor cars” may be considered to be covered by the general expression “component parts and accessories of automobiles” when construed in its widest import, on comparison of the scheduled items of the Order with the items in the other Notifications mentioned and considered in case earlier decision of the High Court (In Cri. Misc. Case No 1479/1968), can it not be reasonably and rationally assumed that it was not intended by the draftsman to extend the Order to “tyres and tubes of motor cars”. In our view, the drafting precedents furnished by the other Notifications considered in the earlier decision of the High Court in Cri. Misc. Case No. 1479/1968 do indicate that the draftsman did not intend the scheduled items in the Order as in force in May 1969 to cover “tyres and tubes of motor cars”.
7. But independently of this aspect the question may also be considered from another point of view viz. if the legal mandate contained in the Order is expressed with such certainty and clarity as to give reasonably precise and adequate guidance to those who want to be law-abiding. In other words, does the Order lay down an ascertainable standard of guilt by unambiguously specifying the tyres and tubes of motor cars as a scheduled item. We do not think it does. Unless the dealers are in a position to know with certainty that the items of tyres and tubes of motor cars are included in the scheduled items of which the price list and the stock position are to be displayed in a conspicuous part of their business premises, in our opinion, they cannot be held guilty in a criminal court of an offence under the Essential Commodities Act for violation of any such mandate. According to the fundamental principle of our criminal jurisprudence, which reflects fair play, the dealer must know with reasonable certainty and must have a fair warning as to what his obligation is and what act of commission or omission on his part would constitute a criminal offence before he can be called upon to answer a charge and be liable to be convicted in a criminal court for any violation of a legal mandate. This approach is in conformity with the general requirement that the act or default should be associated with a legally blameworthy condition of mind. On the view that we have taken the High Court seems to us to have been fully justified in recording the respondents’ acquittal and we see no cogent ground for disagreeing with it.
IV. When the term is not properly defined, it constitutes a serious infirmity in the concerned law
If a term, in a Statute or Guidelines etc., is not properly defined, the same does not amount to give the liberty to the Investigating Agency to give any interpretation to the same, as it prefers. Rather, the same makes the entire Statute or Guidelines etc. itself vague.
In this regard, reliance is placed upon the judgment in State of M.P. v. Baldeo Prasad, (1961) 1 SCR 970 (Constitutional Bench), wherein the Hon’ble Supreme Court, though in some other context, while dealing with the definition of word “Goonda” held as under:
9. Incidentally it would also be relevant to point out that the definition of the word “goonda “affords no assistance in deciding which citizen can be put under that category. It is an inclusive definition and it does not indicate which tests have to be applied in deciding whether a person falls in the first part of the definition. Recourse to the dictionary meaning of the word would hardly be of any assistance in this matter. After all it must be borne in mind that the Act authorises the District Magistrate to deprive a citizen of his fundamental right under Article 19(1)(d) and (e), and though the object of the Act and its purpose would undoubtedly attract the provisions of Article 19(5) care must always be taken in passing such acts that they provide sufficient safeguards against casual, capricious or even malicious exercise of the powers conferred by them. It is well known that the relevant provisions of the Act are initially put in motion against a person at a lower level than the District Magistrate, and so it is always necessary that sufficient safeguards should be provided by the Act to protect the fundamental rights of innocent citizens and to save them from unnecessary harassment. That is why we think the definition of the word “goonda” should have given necessary assistance to the District Magistrate in deciding whether a particular citizen falls under the category of goonda or not; that is another infirmity in the Act. As we have already pointed out Section 4-A suffers from the same infirmities as Section 4.
10. Having regard to the two infirmities in Sections 4, 4-A respectively we do not think it would be possible to accede to the argument of the learned Advocate-General that the operative portion of the Act can fall under Article 19(5) of the Constitution. The person against whom action can be taken under the Act is not entitled to know the source of the information received by the District Magistrate; he is only told about his prejudicial activities on which the satisfaction of the District Magistrate is based that action should be taken against him under Section 4 or Section 4-A. In such a case it is absolutely essential that the Act must clearly indicate by a proper definition or otherwise when and under what circumstances a person can be called a goonda, and it must impose an obligation on the District Magistrate to apply his mind to the question as to whether the person against whom complaints are received is such a goonda or not. It has been urged before us that such an obligation is implicit in Sections 4 and 4-A. We are, however, not impressed by this argument. Where a statute empowers the specified authorities to take preventive action against the citizens it is essential that it should expressly make it a part of the duty of the said authorities to satisfy themselves about the existence of what the statute regards as conditions precedent to the exercise of the said authority. If the statute is silent in respect of one of such conditions precedent it undoubtedly constitutes a serious infirmity which would inevitably take it out of the provisions of Article 19(5). The result of this infirmity is that it has left to the unguided and unfettered discretion of the authority concerned to treat any citizen as a goonda. In other words, the restrictions which it allows to be imposed on the exercise of the fundamental right of a citizen guaranteed by Article 19(1)(d) and (e) must in the circumstances be held to be unreasonable. That is the view taken by the High Court and we see no reason to differ from it.
V. Specification / Precision / Accuracy is necessary so as to avoid any ex-post facto interpretation
A law fails to meet the requirements of the Due Process Clause if it is so vague and standardless that it leaves the public uncertain as to the conduct it prohibits or leaves the Courts free to decide without any legally fixed standards, what is prohibited and what is not in each particular case. One of the basic purposes of the Due Process Clause has always been to protect a person against having the Government to impose burdens upon him except in accordance with the valid laws of the land. [Ref: Douglas J Papachristou v. City of sonville, (405 US 156.)]
Such vagueness in a law would permit any ex-post-facto interpretation to be camouflaged as an act prohibited by law, which, however, is impermissible.
In A.L. Kalra v. Project & Equipment Corpn., (1984) 3 SCC 316 (Three Judge Bench), it was held as under:
Rule 4 bears the heading ‘General’. Rule 5 bears the heading ‘misconduct.’ The draftsmen of the 1975 Rules made a clear distinction about what would constitute misconduct. A general expectation of a certain decent behaviour in respect of employees keeping in view Corporation culture may be a moral or ethical expectation. Failure to keep to such high standard of moral, ethical or decorous behaviour befitting an officer of the company by itself cannot constitute misconduct unless the specific conduct falls in any of the enumerated misconduct in Rule 5. Any attempt to telescope R.4 into R.5 must be looked upon with apprehension because Rule 4 is vague and of a general nature and what is unbecoming of a public servant may vary with individuals and expose employees to vagaries of subjective evaluation. What in a given context would constitute conduct unbecoming of a public servant to be treated as misconduct would expose a grey area not amenable to objective evaluation. Where misconduct when proved entails penal consequences, it is obligatory on the employer to specify and if necessary define it with precision and accuracy so that any ex-post-facto interpretation of some incident may not be camouflaged as misconduct.”
A clause with a statutory flavour “like legislation must at all costs be interpreted in such a manner that it could not operate as a rogue’s charter” [ Devis and Sons v Atkins, 1977 ICR 662]. [Ref: Glaxo Laboratories (I) Ltd. v. Presiding Officer, (1984) 1 SCC 1 (Three Judge Bench), Para 15]
VI. Permitting giving wide interpretations would make the law a weapon of torture and wonton abuse
In Glaxo Laboratories (supra), it was held as under:
15. … … It is a general rule that penal enactments are to be construed strictly and not extended beyond their clear meaning.” [ See Halsbury’s Laws of England, 4th Edn, Vol 44, para 909, 910 at p. 560] It cannot be seriously questioned that Standing Order 22 is a penal statute in the sense that it provides that on proof of misconduct penalty can be imposed. It cannot be disputed that it is a penal statute. It must therefore, receive strict construction, because for a penalty to be enforced, it must be quite clear that the case is within both the letter and the spirit of the statute. If the expression “committed within the premises of the establishment or in the vicinity thereof” is given a wide construction so as to make the clause itself meaningless and redundant, the penal statute would become so vague and would be far beyond the requirement of the situation as to make it a weapon of torture. … …
In A.K. Roy v. Union of India, (1982) 1 SCC 271 (Constitutional Bench), portion of Section 3 of the National Security Ordinance was read down as an expression therein “acting in any manner prejudicial to the maintenance of supplies and services essential to the community” was vague and was capable of wanton abuse. It was held as under:
“64. What we have said above in regard to the expressions ‘defence of India’, ‘security of India’, ‘security of the State’ and ‘relations of India with foreign powers’ cannot apply to the expression “acting in any manner prejudicial to the maintenance of supplies and services essential to the community” which occurs in Section 3(2) of the Act. Which supplies and services are essential to the community can easily be defined by the legislature and indeed, legislations which regulate the prices and possession of essential commodities either enumerate those commodities or confer upon the appropriate Government the power to do so. In the absence of a definition of ‘supplies and services essential to the community’, the detaining authority will be free to extend the application of this clause of sub-section (2) to any commodities or services the maintenance of supply of which, according to him, is essential to the community.
65. But that is not all. The Explanation to sub-section (2) gives to the particular phrase in that sub-section a meaning which is not only uncertain but which, at any given point of time, will be difficult to ascertain or fasten upon. According to the Explanation, no order of detention can be made under the National Security Act on any ground on which an order of detention may be made under the Prevention of Blackmarketing and Maintenance of Supplies of Essential Commodities Act, 1980. The reason for this, which is stated in the Explanation itself, is that for the purposes of sub-section (2), “acting in any manner prejudicial to the maintenance of supplies essential to the community” does not include “acting in any manner prejudicial to the maintenance of supplies of commodities essential to the community” as defined in the Explanation to sub-section (1) of Section 3 of the Act of 1980. Clauses (a) and (b) of the Explanation to Section 3(1) of the Act of 1980 exhaust almost the entire range of essential commodities. Clause (a) relates to committing or instigating any person to commit any offence punishable under the Essential Commodities Act, 10 of 1955, or under any other law for the time being in force relating to the control of the production, supply or distribution of, or trade and commerce in, any commodity essential to the community. Clause (b) of the Explanation to Section 3(1) of the Act of 1980 relates to dealing in any commodity which is an essential commodity as defined in the Essential Commodities Act, 1955, or with respect to which provisions have been made in any such other law as is referred to in clause (a). We find it quite difficult to understand as to which are the remaining commodities outside the scope of the Act of 1980, in respect of which it can be said that the maintenance of their supplies is essential to the community. The particular clause in sub-section (2) of Section 3 of the National Security Act is, therefore, capable of wanton abuse in that, the detaining authority can place under detention any person for possession of any commodity on the basis that the authority is of the opinion that the maintenance of supply of that commodity is essential to the community. We consider the particular clause not only vague and uncertain but, in the context of the Explanation, capable of being extended cavalierly to supplies, the maintenance of which is not essential to the community. To allow the personal liberty of the people to be taken away by the application of that clause would be a flagrant violation of the fairness and justness of procedure which is implicit in the provisions of Article 21.
VII. Failure for the prosecution witnesses to definitely and clearly define a term is fatal to the prosecution
In Shrinivas v. State of M.P., AIR 1954 SC 23 (Constitutional Bench), the Hon’ble Supreme Court was considering a case wherein the prosecution had alleged that the Accused had exported “uncleaned tur dal”, however, there was confusion in the minds of the prosecution witnesses themselves whether the same was distinct from “chuni bharda” or not. Considering that the prosecution could not definitely and clearly define or describe the same, the Accused was held entitled to benefit of doubt. It was held as under:
13. The evidence of these witnesses is sufficient to establish that the commodity which was being exported by the Appellant came within the description of bharda or chuni bharda and if the Appellant was able to prove through the evidence of the prosecution witnesses themselves that what he was exporting was a commodity which fell within the description of chuni bharda he had discharged the onus of proving that he was exporting the commodity in question under a valid permit.
… … … …
20. Having regard to the evidence led on behalf of the prosecution it is abundantly clear that the appellant was exporting a commodity which came well within the description of chuni bharda. In any event having regard to the confusion in the minds of the prosecution witnesses themselves it was not legitimate to convict the appellant of the offence of having exported uncleaned tur dal as distinct from chuni bharda, chuni bharda being a commodity which could not be definitely and clearly defined or described by any of the prosecution witnesses. The appellant was certainly under the circumstances entitled to the benefit of the doubt and it could not be stated that the prosecution had succeeded in establishing the case against the Appellant beyond reasonable doubt.
VIII. POLICE OFFICER IS NO EXPERT UNDER A STATUTE, SO THAT HIS DOGMATIC / OPINIONATED ASSERTIONS, WITHOUT ANYTHING MORE, BE ACCEPTED
With past experience, it can certainly be said that the Investigating Agencies, in order to bolster up the case of the prosecution, given dogmatic interpretations on several aspects of the law without there being anything on record to support such interpretations.
In State of Maharashtra v. Hansraj Depar Parle Oil Centre, (1977) 2 SCC 216 (Three Judge Bench), prosecution was launched against an accused on an basis of an interpretation given to the expression “Vanaspati”. The Hon’ble Supreme Court upheld the acquitted of the accused on the following grounds:
- The prosecution made no attempt to establish the true meaning and connotation of the expression ‘vanaspati’ and what kind of articles or goods are comprehended within the scope of that expression.
- The witnesses did not prove that the word had acquired a popular meaning.
- Meaning should be shown, not guessed.
- The Act or Order did not define the expression, and thus, definition in another Statutes was besides the point.
- Sub-Inspector was no expert for the purpose of the Act and the Court could not, without more, accept the dogmatic assertion made by him.
The relevant portion of the said judgment is as under:
“10. The prosecution did not make any attempt to establish as to what is the true meaning and connotation of the expression ‘vanaspati’ and what kind of articles or goods are comprehended within the scope of that expression. The witnesses did not even say in their evidence, perfunctory as it is, that the word had acquired a popular meaning and was understood locally in a certain sense. Neither the Act of 1955 nor the Order of 1966 defines the expression ‘vanaspati’ and it was beside the point to say that ‘vanaspati’ is defined in the Bombay Sales Tax Act and the Prevention of Food Adulteration Rules 1965 to include hydrogenated oil. The purpose of the Sales Tax Act is to bring within the tax net as large a number of articles as possible, that of the Prevention of Food Adulteration Act and the Rules thereunder is to ensure that the health of the community is not endangered by adulterated or spurious articles of food while that of the Essential Commodities Act with which we are concerned in the instant case is to ensure the availability of essential goods to the community at a proper price. This last Act was passed in order “to provide, in the interests of the general public, for the control of the production, supply and distribution of and trade and commerce in, certain commodities”. Sub Inspector Kurdur is no expert for the purposes of this Act and we cannot, without more, accept the dogmatic assertion made by him in one of these cases that vanaspati and hydrogenated oil “mean the same thing”. Hydrogenation is a specialised process and is described in Encyclopaedia Britannica (1951 ed., Vol. 11, p. 978) as “the treatment of a substance with hydrogen so that this combines directly with the substance treated. The term has, however, developed a more technical and restricted sense. It is now generally used to mean the treatment of an “unsaturated” organic compound with hydrogen, so as to convert it by direct addition to a “saturated” compound. The witness, excusably seems unaware of this scientific sidelight and greater the ignorance, greater the dogma. If the witness were right, it is difficult to understand why “Groundnut oil, Safflower oil, Sesame oil and Mustard seed oil” and “Coconut oil” find a separate and distinct place in Schedule I at items 5 and 6. Perhaps what the witness guessed, science may show to be true but that has to be shown, not guessed.
Conclusion:
From the above, it can clearly be concluded that any prosecution, which is based, nor on the strict interpretation of the law, but on a rogue interpretation of the law, is not proper and bad in the eyes of law.
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