Untangling the Many Threads of the Sarla Gupta Judgment

A Three Justices' Bench of the Supreme Court rendered its judgment in Sarla Gupta & Anr. v. Directorate of Enforcement [2025 INSC 645 (Sarla Gupta)]. The Court was hearing different appeals together, which presented somewhat similar issues that could loosely be grouped under the category of obligations on prosecuting agencies to disclose the material gathered during an investigation to the accused, in context of cases under the Prevention of Money Laundering Act 2002 ['PMLA']. 

While the judgment itself does not categorise issues, I think it is helpful if we are to try and make sense of its conclusions [summarised at Paragraph 55]. An attempt at the issues is as follows:

1. Whether the accused has a right of disclosure to seek copies of documents seized during searches done under the PMLA by the Enforcement Directorate? 

1A. If so, at what stage can the right be enforced and the documents disclosed / shared with the accused?

2. Whether the accused has a right of disclosure to seek copies of the documents filed by the prosecuting agency in support of its complaint under the PMLA ('relied upon documents')?

2A. If so, at what stage can the right be enforced and the relied upon documents disclosed / shared with the accused?

3. Whether the accused has a right of disclosure to seek copies of the documents seized but not placed in support of its complaint under PMLA by the prosecuting agency ('un-relied upon documents')?

3A. If so, at what stage can the right be enforced and the un-relied upon documents disclosed / shared with the accused?

Issues 1 and 1A

The first set of issues — 1 and 1A — were the easiest to answer for the Court. The PMLA itself provides that in event of a search and seizure, a list of seized items must be supplied to the person concerned, and the person can apply to get a copy of the documents when the authority concerned has decided to retain them [Sections 17 to 21]. So, the answer to issue 1 was 'yes', and the answer to 1A was that the person can apply to get copies after a decision is made to retain them for longer than thirty days.

Issues 2 and 2A

The next set of issues — 2 and 2A — are slightly more complicated because of how the PMLA and the general procedural law under the Criminal Procedure Code 1973 ['Cr.P.C.'] — now  the Bharatiya Nagarik Suraksha Sanhita 2023 ['BNSS'] — operate. The Cr.P.C. applies to PMLA prosecutions, but where there is a conflict between the two laws, the PMLA governs. In this realm of supplying complaints etc., there is no specific clause within the PMLA, taking us back to the Cr.P.C. [clarified within Sarla Gupta as well]. 

Indian criminal law envisages prosecutions can start either by a state agency investigating facts and bringing a case, or by an aggrieved party filing a case basis material it has in its possession to prove wrongdoing. Ordinarily, the state agency tasked with investigating cases is the police, and police files what is called a 'police report'. The disclosure rules for material filed with a police report are fairly clear: material which the agency is relying upon to support its case, has to be supplied [Sections 173(5), 207]. 

When it comes to a 'complaint', the Cr.P.C. stipulates that if a court finds that a person ought to face trial upon the allegations in a complaint, it must ensure a copy of the complaint is given to an accused. But, there is no corresponding right of disclosure availing to an accused here, as it is with cases launched pursuant to a police report. The limited exception, textually speaking, is a requirement for a magistrate's court to ensure that materials filed with a complaint are furnished to the accused in cases where the prosecution is one which must be conducted before a sessions court [Sections 204, 208]. I say textually, because courts have read in a similar disclosure requirement in cases launched on complaints for some time now.

This background is necessary to understand issues 2 and 2A. Even though prosecutions under PMLA are lodged after investigations by a state agency — the Enforcement Directorate — the document launching the prosecution is styled as a 'complaint' and not a police report [Section 45 PMLA]. The Cr.P.C., as we have seen, confers clear rights in cases launched on a police report, but is not so strongly worded when it comes to complaints. What this reflects is that, unlike issues 1 and 1A, here the Court in Sarla Gupta had some options on how to proceed. 

How has it answered the issues framed above? On issue 2, the Court has taken two steps. First, it clarifies that when a person is brought to court to face trial in a PMLA case, they must be provided with not just the complaint but also the materials being relied upon in support thereof [Paragraph 25]. This was held necessary owing to the general Cr.P.C. rule on supplying copies of complaints to accused persons. In other words, the Court recognised an obligation on part of the agency to supply a copy of the material it proposes to rely upon in support of its case. 

What about the right of the accused within the statute to demand for such relied upon material? Here, recall, that the rights-language is far clearer for police reports than for complaints. But since the PMLA involves no assignment of a case from a magistrate to a sessions court, the Court in Sarla Gupta noted that the Cr.P.C. complaints' clause on disclosure would not strictly apply to the PMLA [Paragraph 30]. 

It could have deemed the 'complaint' filed by the Enforcement Directorate as a 'police report' or adopted some other means to hold that the rules of Section 207 Cr.P.C. applied to PMLA complaints. If it would have done so, the Court would have thrown open the doors to topple the investigative scheme of the PMLA, because it hinges upon treating these complaints by state agencies as not being akin to police reports. There are many investigative powers that flow to the Enforcement Directorate (and other agencies) from simply not being labelled 'police'. Any ruling that dents this scheme would be extremely troubling for central investigative agencies which file 'complaints'. 

The Court was certainly aware of this position, which had been restated a few months ago by a bench comprising the Chief Justice. As a result, rather than apply either Section 207 or Section 208 by twisting their language, the Supreme Court in Sarla Gupta conveniently holds that the 'principles' of both clauses apply to the PMLA context, and all relied upon materials should be supplied [Paragraph 30]. 

Thus, the answer to issue 2 is a 'yes', but it is more an obligation on part of the agency and court rather than an issue that the accused must chase by enforcing their rights. There is a right too, just to be clear, and issue 2A stands answered by telling us that this right can be enforced from the time that an accused is first summoned to court to face a trial under the PMLA. If any deficiency exists in terms of material that the agency relied upon, the accused can seek copies, and arguments on the aspect of charge should not start till this supply of material is complete.

Issues 3 and 3A

Which then brings us to the last issues of the lot — issue 3 and 3A. That an accused has a right to seek the copy of un-relied upon documents has been an unequivocally clear position now for quite some time, and the Court merely reiterated precedent to stress upon this aspect [Paragraphs 31-33]. Issue 3A is where the controversy existed — at what stage would this right to get un-relied upon documents trigger? This section of the judgment is couched with qualifiers and it is safer to first set out the general position that the Court has identified, before delving into the devilish details:

• There is a clear right to be supplied with a list of the un-relied upon material, and this must be given along with the entire copy of the PMLA complaint i.e. prior to arguments on charge [Paragraph 41].
• There is no clear right to seek copies of un-relied upon material at the time of arguments on charge [Paragraphs 33-41].
• There is a clear right to seek copies of un-relied upon material during defence evidence by moving an appropriate application for summoning such records [Paragraphs 42-51].
• There is a clear right to seek copies of un-relied upon material during bail hearings by moving an appropriate application, and the extent of the right depends upon the stage at which the investigation is [Paragraphs 52-54].

Out of these four conclusions, the first brooks no exception nor generates any controversy. The Supreme Court has endorsed this approach of directing the agency to prepare a list of un-relied upon materials that must be supplied as part of a set of guidelines for better functioning of trials issued in 2021. Sarla Gupta has extended that logic to the PMLA as well. 

The 2021 judgment did not specifically say anything about the stage at which the accused can seek copies of the un-relied materials cited by an agency. This aspect was touched upon in two subsequent decisions — Manoj [2022 INSC 606] and Ponnusamy [2022 INSC 1177]. Out of the two, Manoj did not specifically mention a stage either and generally observed that disclosure of the un-relied upon materials was necessary to secure a fair trial. It was only Ponnusamy which specifically dealt with this exact issue — the two opinions from the bench diverged on precisely this aspect of a right to un-relied upon documents and the stage at which it would trigger. 

Curiously though, Ponnusamy is not mentioned anywhere within Sarla Gupta. This is a problem because it would seem that Sarla Gupta has diverged from the view taken in Ponnusamy. Both Ponnusamy and Sarla Gupta hold that there is no right to seek copies of un-relied upon material at the stage of charge. But where Ponnusamy held that the right would trigger at trial and that a court could consider the relevance of the material sought to be summoned while considering the request, Sarla Gupta has specifically linked the right to defence evidence, not trial generally, and has limited the scope of discretion vesting with a judge to refuse a request for summoning the materials (permitting it only on grounds of delay). 

It is unclear why Sarla Gupta specifically linked the prospect of seeking un-relied upon materials to defence evidence, and not adopted the view taken in Ponnusamy. The Supreme Court's logic in stressing upon the existence of a right for accused persons is that there is a reverse burden operating after charge is framed under the PMLA. In that case, why specifically link the right to only defence evidence? No reasons are offered to explain why an accused should remain quiet throughout prosecution evidence when having this material would enable a more effective cross-examination of witnesses at the relevant stage. Instead, the Court proposes a tortuous route, suggesting that an accused after applying for this material and obtaining it can then apply for recalling of witnesses to cross-examine them on this material. 

This course of action does not commend itself on logical grounds as mentioned above, nor does it commend itself on grounds of efficiency, economy, or strategy. Accused persons will have to adopt an artificial posture and work out two potential cross-examinations of the same witness. If a second cross-examination yields new incriminatory evidence from the witness, that would necessitate a trial court to put these statements to an accused and record a fresh statement under Section 313 Cr.P.C. These are only surface-level problems, mind you, and I am sure that more emerge the moment that lawyers and courts begin to try and apply the rules of Sarla Gupta to the facts of actual cases.    

We are left with the second and fourth conclusions then — no general right to copies of un-relied material at charge, but a right to apply for such material during bail. Although Ponnusamy is not cited anywhere within Sarla Gupta, it has followed the holding in Ponnusamy that there is no right to seek un-relied materials at the stage of charge by moving applications under Section 91 Cr.P.C. It also relies upon another earlier Three Justices' Bench decision in this context, Debendra Nath Padhi, which held that the hearing at charge must be confined to the record of the case, and this record consisted only of material that the prosecution brought forth. But while doing so Sarla Gupta has not slammed the door shut upon potential requests for un-relied upon material at this stage since it qualifies its position by repeatedly stating that 'ordinarily' an accused would not have the right to apply under Section before trial for copies of such materials [Paragraphs 33, 37, 49]. In the right facts, then, one may still have a chance to get un-relied materials prior to framing charge.

What complicates matters a great deal further is the fourth conclusion — that an accused has a right to apply for un-relied upon material during bail hearings. In this section of the judgment, the Court has moved entirely free of any past precedent and taken a view that fairness demands that the accused must have this right because bail under the PMLA places an onus upon the accused to show that no offence is made out. To ensure a fair opportunity for an accused to discharge this burden, the Court felt it was necessary to have a right to seek un-relied upon material which the agency might have.

This section greatly complicates the task of making sense of Sarla Gupta. Firstly, because it further undermines the already logically precarious position to allow a right to apply for un-relied upon material at the stage of defence evidence alone, since the reverse burden operates at the time the trial begins. Secondly, because if the reverse burden on an accused is such a critical hit to fairness, then why should an accused have to suffer framing charge on the basis of potentially unfair prosecutorial conduct and then get a valuable right to expose this during trial? Thirdly, and finally, because ordinarily bail will be a stage that comes before charge is framed, and if a court ends up viewing the un-relied material as being relevant to deciding the bail application it will undoubtedly end up thinking it is relevant to decide the point of charge as well. This creates a weird and inconsistent position where persons in custody may have greater opportunities to fair hearings at the stage of charge than those who are never arrested during investigation.

Sarla Gupta cites many past decisions of the Supreme Court on this issue of disclosing un-relied upon materials by prosecuting agencies. A unifying theme through all those past decisions was clearsighted acknowledgment that there was a need for a right of disclosure to mitigate against the very real possibility of unfair suppression by prosecuting agencies of material gathered in an investigation but of an exculpatory nature. But in Sarla Gupta the issue of suppression is nothing but an elephant in the room. Throughout its 86 pages, not once does Sarla Gupta mention this aspect of possible suppression and the unfair prejudice it causes, even though it is clearly the driving force behind the Court conferring a right to un-relied upon material at the bail stage. A full and frontal acknowledgment of this issue being one of the guiding reasons to confer a right of disclosure may well have yielded different configurations of how the right operates.

Conclusion

To conclude, then, One is left feeling that Sarla Gupta is yet another one of those judgments in which a bench of the Supreme Court is torn between adopting fairness as a yardstick for reading rules of criminal procedure, but is unable to adopt this yardstick consistently when faced with the ghost past judicial precedent that has taken a restrictive and unfairly textual view of the statute. Even so, the judgment is bound to be immensely relevant not just for PMLA cases, but criminal trials generally, and criminal trials with reverse onus clauses more specifically. One cannot help escape the feeling that this is not the end of the matter, but only the start of new complexities in the law on disclosure obligations and rights of accused persons. 

The Promise of Imran Pratapgadhi

Somnath Lahiri, the Communist Party representative in the Constituent Assembly of India, is not the name that comes first to mind when one thinks of the fundamental rights guaranteed by the Constitution which that august house was formulating. Yet, it is his canny observation in 1947 which many return to when assessing the life of the fundamental rights clauses in the Indian Republic: That the fundamental rights chapter appeared to have been drafted from the point of view of a police constable. Each right guaranteed by the Constitution came with a qualifier, which meant that while the supreme 'people' of India had many rights, their nascent Indian State decided whether or not the exercise of such rights was lawful or not in any given set of circumstances. Creating a system where the State could contest the legality of how people exercised their rights had the in-built potential for rendering them a dead letter. Parliament could outlaw certain brands of activity, the police could swoop in and forcefully stop persons from engaging in not only such activity but anything that was remotely prejudicial, and by the time the aggrieved persons secured a vindication from courts it would be rendered meaningless by the efflux of time.   

If Imran Pratapgadhi was not a member of the Rajya Sabha (Council of States), perhaps his struggle in exercising his fundamental right to freedom of speech would have played out across the template sketched above. But he is, and thus was able to successfully challenge a case registered by the police against him in December 2024 before the Supreme Court, which in March 2025 set aside the case and in doing so has delivered a judgment of great significance. The Court in Imran Pratapgadhi v. State of Gujarat & Anr. [2025 INSC 410] begins by bleakly noting that "even after 75 ears of the existence of our Constitution, the law enforcement machinery of the State is either ignorant about this [the fundamental right to freedom of speech and expression] or does not care for this fundamental right." An honest effort at implementing the approach outlined in this judgment could bring about some change in this undesirable status quo.

But I get ahead of myself. What had happened in Imran Pratapgadhi? The petitioner had shared a video of a mass wedding program on social media, and the background audio to this video included a poem recited by him. This poem allegedly incited people of different communities against one another and created enmity and hatred between the groups. An FIR (first information report) was registered for the alleged commission of offences under Sections 196, 197(1), 302, 299, 57, 3(5) of the Bharatiya Nyaya Sanhita 2023 [BNS], i.e., doing acts to cause enmity or hatred between groups; making imputations prejudicial to national integration by words or signs; insulting religious beliefs; wounding religious feelings, and so on. The Petitioner challenged this FIR before the High Court, which refused to entertain his plea stating that the investigation was at an initial stage. The Supreme Court, as we already know, had no such qualms in setting aside what it viewed as a patently illegal exercise of power: 

"The poem does not refer to any religion, caste or language. It does not refer to persons belonging to any religion. By no stretch of imagination, does it promote enmity between different groups. We fail to understand how the statements tehrein are detrimental to national unity and how the statements will affect national unity."

The Court could have stopped here — at page 16 of 54 — but it ploughed further to deal with procedural law issues surrounding the registration of criminal cases. The issue arose thus: If police is obligated to file a case upon receiving complaints with allegations of cognizable offences being committed, then how can it be argued that the registration of this case was improper? To determine whether the allegations are made out or not requires an investigation which can happen after registration of a case. Throwing out cases at the initial stage by analysing the merits of the allegations would place the cart before the horse. This is a rather overstated position, mind you, because the Supreme Court itself adopted an equivocal position on whether instant registration of a case is in fact mandatory upon receiving complaints disclosing cognizable offences. This judicial equivocation in the context of the old Criminal Procedure Code 1973 [CrPC] has been crafted upon the statute itself by Section 173(3) of the Bharatiya Nagarik Suraksha Sanhita 2023 [BNSS], which permits a preliminary inquiry into the allegations before registering cases of a comparably lesser gravity. 

Where Imran Pratapgadhi advances the law on this aspect is, first, in its realistic treatment of the process of registering a case. When we speak about police receiving complaints alleging commission of offences, we may imagine simple scenarios such as X hitting Y with a stick. However, allegations revolving around appreciation and interpretation of speech acts is qualitatively different from this relatively straightforward case of bodily harm. Here, as the Court explains, the officer "will have to read or hear the words ... the officer must consider the meaning of the spoken or written words." This, the Court clarifies, is not even a preliminary inquiry, but a process inherent to the very determination of whether a cognizable offence has been committed or not. This intervention appears simplistic but it is far from it. Rarely does the Court deal so candidly with the processes by which police exercise power. 

Thus, in Imran Pratapgadhi, the Court unwinds this most basic and simultaneously most awesome of powers wielded by police in our system — to transform a narrative complaint into a criminal case. Sheer candidness alone is not what makes Imran Pratapgadhi an important decision. After having unwound the fabric of police power, the Court proceeds to clarify the standards which the Constitution demands of the police in how it exercises its power. It holds that wherever fundamental rights under Article 19 are at stake and the alleged offences meet the contours of Section 173(3) BNSS the police must conduct a preliminary inquiry. In this inquiry, or even in an investigation, police must be mindful that the "effect of the spoken or written words will have to be considered based on standards of reasonable, strong-minded, firm and courageous individuals and not based on the standards of people with weak and oscillating minds. The effect of the spoken or written words cannot be judged on the basis of the standards of people who always have a sense of insecurity or of those who always perceive criticism as a threat to their power or position."

The third prong of its significance is that Imran Pratapgadhi also offers guidance on how constitutional courts must address such cases. It notes that it is the "bounden duty" of courts to ensure that the "ideals of the Constitution are not trampled upon. ... The courts must not be seen to regulate or stifle the freedom of speech and expression. As a matter of fact, the Courts must remain ever vigilant to thwart any attempt to undermine the Constitution and the constitutional values, including the freedom of speech and expression." In this vein, the Court clarifies that there is no barrier to quashing cases where no offence is made out, even at the earliest stages after registration of an FIR.

To conclude, then. 75 years on from the adoption of the Constitution, the Supreme Court of India appears aghast at how the police seemingly dealt with a citizen's exercise of his fundamental right to freedom of speech and expression. A more cynical observer might remind the Court of Somnath Lahiri's remarks and ask that if we gave to ourselves a police constable's Constitution, is it any surprise that the constables have run riot with it? That there is still some life left in the fundamental right to freedom of speech and expression for citizens of India is perhaps in spite of, and not because of, the text of the Constitution and its police constable's perspective of rights. Upturning the police constable's constitution will take much more than pious observations from the bench, especially at a time when national tempers are rising. It will take constant vigil from all corners, including from all courts, to ensure that the ideals which the Supreme Court hails as cherished by the Indian Republic are not emblems for securing convenient speech of desirable citizens, but the constants equally protecting the inconvenient speech of supposedly undesirable citizens as well.

IBC Interim Moratoriums and Cheque Bounce Cases

On 01.04.2025, the Supreme Court rendered its judgment in a batch of cases [decision reported as Rakesh Bhanot v. M/s Gurdas Agro Pvt. Ltd., 2025 INSC 445 ("Rakesh Bhanot")]. The common issue across the cases concerned the interplay between cheque bounce cases under the Negotiable Instruments Act 1881 [NI Act] and the Insolvency and Bankruptcy Code 2016 [IBC] provisions on moratoriums pending the resolution of the insolvency process for persons and firms. 

The problems begin with how the issue is framed at paragraph 4 of the judgment: 

"The common legal question that arises for consideration herein is, whether the proceedings initiated against the appellants / petitioners under Section 138 read with Section 141 of the N.I. Act, 1881 should be stayed in view of the interim moratorium under Section 96 IBC having come into effect upon the appellants / petitioners' filing applications under Section 94 IBC. In view of the commonality of issues involved in all the cases, we need not necessarily review the facts of each case individually"

If we read this paragraph without an inkling of the facts, it is reasonable to think that Rakesh Bhanot dealt with general applicability of the moratoriums for persons and firms under Sections 96 / 101 IBC to proceedings for cheque bounce cases. This impression, however, is entirely wrong. Rakesh Bhanot was dealing with a specific and niche issue that the petitions presented. It was not at all a question of deciding the general applicability of the IBC moratorium clauses for personal insolvency to cheque bounce cases. Rather, I would frame the issue as follows:

Company X is arraigned in a cheque bounce case under Section 138 NI Act, and Y is arraigned in his capacity as its director. Company X moves insolvency proceedings for corporate debtors under IBC, and separately, Director Y moves personal insolvency proceedings in his capacity as a personal guarantor of the company. Can Director Y use the interim moratorium triggered by his filing an application of personal insolvency, to stall proceedings of the cheque bounce case filed against Company X and him?

This issue is an offshoot of the Supreme Court's earlier decision in P. Mohanraj [(2021) 6 SCC 258 (Three Justices' Bench)] where it had to decide whether a cheque bounce filed against a company would be hit by the IBC moratorium provisions. P. Mohanraj held that the moratorium provisions for corporations covered cheque bounce cases. The key element of the Court's reasoning was that a cheque bounce case is, essentially, a proceeding for recovering debts owed to a person. Even though it may potentially involve a jail sentence, cheque bounce cases could be seen as 'quasi-criminal' at best. 

Crucially, though, the Court specifically held that the moratorium would not apply to the persons arrayed in their capacity as directors / officers of the corporate debtor itself. In other words, while proceedings in cheque bounce cases against a company undergoing insolvency would be halted against the company during the insolvency process, they could continue against its directors. The findings on this aspect in P. Mohanraj are, unreasoned, to say the least. Nevertheless, they have not been challenged. Instead, it would seem that litigants across the country devised a new approach to try and use IBC moratorium clauses to stall cheque bounce cases in which they were arraigned as directors of companies. 

This approach was to file for personal insolvency under Section 96 IBC which has a separate moratorium process. A look at the clause makes it clear that this route could not be availed so simply. Section 96 IBC halts any pending proceedings in respect of a debt of the person filing for insolvency. In a cheque bounce case against the company, the 'debt' would be that of the company which issued the cheque, and not the director. The liability of the director is purely vicarious, flowing from his position in the company as an officer responsible for the company's affairs. 

This is where the guarantor arrangement is relevant. Section 126 and Section 128 of the Indian Contract Act 1872 when read together explain that the liability of a surety (the person giving the guarantee) is coextensive with that of the principal debtor (here, the company). So in situations where a director stands as a guarantor for debts of the company that the company pays by way of a cheque which is dishonoured, one cannot separate the debt in respect of which a cheque is issued as being that of the company alone, and it must be seen as also being a debt of the director who stands as guarantor in the contract. If the debt is equally that of the guarantor, then it would bring us back within the fold of Section 96 IBC, and the moratorium would have to apply.

How has Rakesh Bhanot resolved the issue? Deeply unsatisfactorily, to say the least. The Court notes at Paragraph 10.1 that the moratorium under Section 14 IBC for corporate debtors "is not available to the surety or in other words, to a personal guarantor" but that is merely stating the obvious since none of the pleas invoked Section 14 to begin with but invoked Section 96 IBC to make their case. On that score, the Court notes in the same paragraph that "[T]he use of the words 'all the debts' and 'in respect of any debt' in sub-section (1) of Section 96 is not without a purpose, as the moratorium is intended to offer protection only against civil claim to recover the debt. Hence, such period of moratorium prescribed under Section 14 or Section 96 is restricted in its applicability only to protection against civil claims which are directed towards recovery and not from criminal action." Through Paragraphs 10 to 13 the Court hammers down this nail of its reasoning, emphasising that a cheque bounce case is not a civil claim for debt recovery but a criminal case, and notes the deterrent effect of this criminal case in Paragraph 17 to hold that a person should not be allowed to evade liability by using IBC moratorium clauses. 

In other words, rather than explain to us whether the debt in question could be that of the surety to extend Section 96 IBC to cheque bounce cases against the director, or offer any argument of public policy that militates against extension of Section 96 IBC, what the Court in Rakesh Bhanot has held is that Section 96 IBC cannot be applied to cheque bounce cases at all. This finding is directly contrary to the judgment of a larger strength in P. Mohanraj which held that moratoriums under both Section 14 and Section 96 IBC would extend to cheque bounce cases because they were "'civil sheep' in a 'criminal wolf's' clothing". In fact, P. Mohanraj observed that the language of Section 96 IBC covered cheque bounce cases against persons / firms, and its used this as the starting point for its conclusions that the Section 14 IBC moratorium for companies also covers cheque bounce cases. 

None of these observations in P. Mohanraj are dealt with or mentioned by the bench in Rakesh Bhanot through paragraphs 10-13. The 2021 decision is only referred to is in paragraph 14 by citing the extract from P. Mohanraj that denies extension of Section 14 IBC moratorium to the directors of a company in cheque bounce cases, which has been followed by subsequent cases. Again, extending Section 14 IBC to directors was not the issue. It was only the starting point for understanding the issue, which concerned the impact of the coextensive nature of debts under guarantee contracts on the moratorium provisions of the IBC. This issue has not been touched, let alone discussed, in Rakesh Bhanot.

Given how difficult it is to seek a review of a verdict, one wonders whether this spells the end for what is an interesting legal issue that could benefit explanations through a reasoned judgment. Even so, this entire branch of litigation appears to be the result of loopholes in the IBC regime on moratoriums in personal insolvency cases. Section 96 IBC triggers an 'interim moratorium' upon the filing of an insolvency plea, and this interim moratorium remains in force till the application is 'admitted' by the authority. Compare Section 96 IBC and its 'interim moratorium' with the actual 'moratorium' governed by Section 101 IBC post admission of the plea, and you can see the loophole. Where Section 101 limits a moratorium to 180 days after the application is admitted, there is no time limit to how long interim moratoriums can subsist, because there is no time limit to how long it can take for the application to be 'admitted'. Since the interim moratorium remains in force till the application is admitted, enterprising litigants will naturally try and delay things at this stage itself. This is a problem with Section 96 / 101 IBC which the legislature really ought to address, which might clean up a lot of issues in pending litigations.

Paper Update: Confronting the Violence Within

At the start of the month, a bench of the Supreme Court dismissed a plea for anticipatory bail filed by a person accused of corruption [Devinder Kumar Bansal v. State of Punjab (2025 INSC 320)]. The person in question was accused of asking for bribes to do audit work, and now sought relief from court. For the uninitiated, 'anticipatory bail' is a remedy where a person goes to court claiming he entertains a reasonable apprehension of arrest in connection with a case, and if the court agrees, then it can pass orders directing that in the event of his arrest the police should release him on bail. 

Even a mildly critical reading reveals the problem. If all we need is reasonable apprehension that there may be an arrest, where does that leave the police's power of arrest and the consequential 'benefits' that arrests and custodial questioning are seen to bring to the pursuit of justice? It can bring it to an absolute standstill. Which is why no court since the introduction of anticipatory bail has read the provision strictly, and the law since 1973 is a study in seesawing judicial opinions on how to exercise this great discretionary power that the criminal procedure code had conferred upon judges. 

Devinder Kumar Bansal falls in the bucket of opinion which warrants extreme circumspection in the grant of anticipatory bail. It notes that the relief "can be granted only in exceptional circumstances where the court is prime facie of the view that the applicant has been falsely enroped in the crime or the allegations are politically motivated or are frivolous." Note that none of this is statutory criteria by the way — something made even more interesting by the fact that in Pakistan, law specifically made testing the falsity of allegations something a court must test while deciding anticipatory bail pleas. 

What makes Devinder Kumar Bansal even more interesting, and allows me to use it as a hook to shamelessly plug a small essay that has come in a volume titled Police Violence in India, is a one-line observation that it made in passing, stating that "if liberty is to be denied to an accused to ensure corruption free society, then the courts should not hesitate in denying such liberty. [Emphasis supplied]" No matter the precepts that we should not turn persons into tools for achieving some unknown larger aims — such as a corruption free society — the observation is deeply revealing of the consistent tendency of courts to emphasise upon custody as a means to secure justice. Especially during investigations. 

In an essay titled 'Confronting the Violence Within', I've taken up this tendency of courts to make interpretive choices that privilege custodial interrogation and questioning in criminal cases, which only entrenches the importance of the custodial setting within the law. And courts conveniently want to only focus our attention on the good parts — custodial interrogation is more 'elicitation oriented' as they say — while turning a blind eye to what makes the custodial setting so unique for the investigator — its inherently violent nature. The paper looks at this tendency through two specific areas — law on the right against compelled self-incrimination, and law on anticipatory bail. While Devinder Kumar Bansal has been published after the paper and is relevant to its arguments from an anticipatory bail perspective, even for the law on self-incrimination there have been interesting developments, as the Supreme Court in granting some reliefs to Ranveer Allahabadia specifically directed him to be questioned without his lawyer present. The direction is not unique and in line with previous decisions by the Supreme Court which have consistently sought to remove any intermediary from the custodial setting to ensure its 'uniqueness' — again, without ever squaring up to face the violence which is what makes the custodial setting unique.

If the courts themselves places such a premium on the need for custodial interrogation, how can we expect custodial violence which is an inherently inseparable part of the process, to vanish? 

If liberty is to be denied to an accused to ensure corruption free society, then the courts should not hesitate in denying such liberty. Where overwhelming considerations in the nature aforesaid require denial of anticipatory bail, it has to be denied. It is altogether a different thing to say that once the investigation is over and charge-sheet is filed, the court may consider to grant regular bail to a public servant - accused of indulging in corruption

Anticipatory bail can be granted only in exceptional circumstances where the Court is prima facie of the view that the applicant has been falsely enroped in the crime or the allegations are politically motivated or are frivolous. So far as the case at hand is concerned, it cannot be said that any exceptional circumstances have been made out by the petitioner accused for grant of anticipatory bail and there is no frivolity in the prosecution.

 

Guest Post: Loose Ends and Lingering Questions from the RG Kar Judgment

(This is a guest post by Sri Harsha Kandukuri and Rahul Machaiah)

A gruesome rape and murder

The gruesome rape and murder of a post-graduate trainee doctor at R G Kar Medical Hospital in Kolkata on August 09, 2024, shook the nation. Shortly after the incident, protests erupted and the police came under fire for allegedly destroying evidence and attempting to protect the perpetrators of the heinous crime. On August 10, the Kolkata Police arrested Sanjay Roy-a civil defence volunteer, as the key suspect in the case.

Meanwhile, the parents of the victim, among others, filed a writ petition before the Calcutta High Court seeking a transfer of the investigation to the Central Bureau of Investigation (CBI). In a significant development, the High Court on August 13 directed the CBI to take over the investigation from the Kolkata Police. In its order, the High Court opined that the petitioners’ apprehensions pertaining to destruction of evidence and witnesses being influenced were justified. The High Court also observed that an investigation by the CBI was warranted in in the interest of a fair investigation and to retain citizens’ confidence in the State’s agencies.

On October 07, 2024, the investigation by the CBI culminated in the filing of a chargesheet against Sanjay Roy under Sections 64 (punishment for rape), 66 (Punishment for causing death or resulting in persistent vegetative state of a rape victim) and 103 [1] (punishment for murder) of the Bharatiya Nyaya Sanhita (BNS). Though the protesters and the petitioners before the Calcutta High Court suspected gang-rape and the involvement of several offenders, the CBI concluded that Sanjay Roy was the lone offender.

The Court of the Additional Sessions Judge, Sealdah, South 24 Paraganas tried Sanjay Roy under Sections 64, 66 and 103 [1] of the BNS. The prosecution examined 50 persons as prosecution witnesses, marked more than 300 documents as exhibits and produced 75 material objects. The accused on the other hand, did not examine defence witnesses.

On January 20, 2025, the Court convicted Roy under Sections 64, 66 and 103 [1] of the BNS and sentenced him to rigorous life imprisonment for the remainder of his natural life.

This piece is an analytical critique of the judgement of the Additional Sessions Court. The authors do not express any opinion on the merits of the case or claim that Roy was wrongly convicted. Instead, the critique is confined to the reasoning of the Court and highlights the passive role played by the defence and the Court in a manner contrary to criminal jurisprudence.

The prosecution’s case

Based on circumstantial evidence, the prosecution’s case was that during the intervening night between August 08 and August 09, 2024, the victim was sleeping in the seminar room on the third floor of the Emergency Building in R G Kar Hospital. A doctor had seen her asleep in the seminar room at 2.50 AM on August 09. An intoxicated Roy arrived on the third floor of the Emergency Building at 04.03 AM on August 09. He entered the seminar room and had a sudden impulse to rape the victim. He raped the victim by inserting a hard blunt object into the victim’s vagina and killed the victim by throttling and smothering her. After committing the crime, he left the Emergency Building at 04.31 AM. The prosecution primarily relied on the following pieces of evidence to prove Roy’s guilt:

1. CCTV footage which shows Roy arriving on the third floor of the Emergency Building at 04.03 AM on August 09.
2. The victim’s nipple swab containing Roy’s DNA and Roy’s hair strands being seized from the crime scene.
3. Roy’s Bluetooth earphones being seized from the crime scene.
4. Clothes and footwear containing the victim’s blood stains being seized from Roy’s residence

Roy’s explanation regarding incriminating material

When the Court examined Roy under Section 351 of the BNSS by seeking his response to the incriminating material, he categorically admitted his presence at the Emergency Building between 04.00 AM and 04.30 AM on August 09. He further admitted that the person seen in the CCTV footage produced by the prosecution was him. However, he claimed that as a civil defence volunteer, he was assigned the task of helping police officers’ family members when they were admitted to R G Kar Hospital. Furthermore, he visited the Hospital along with one Sourav Bhattacharya (Prosecution Witness No. 33) to meet Sourav’s brother who had been admitted for surgery and few other patients. It is highly relevant that Sourav had deposed that his brother Sagar Bhattacharya had been admitted to R G Kar Hospital and that Roy had accompanied him to the Hospital.

Roy further admitted that when he entered the hospital, as seen in the CCTV footage, Bluetooth earphones were handing around his neck but the earphones were missing when he left the hospital. However, his explanation was:

“I went to the Trauma Centre as the operation of one of Civic Volunteer was going on. Then I went to the Emergency Building and straight went to the fourth floor but I did not find the patient there and somebody informed that the patient might be at 3rd floor and then I came to 3rd floor and went to the Male Ward but did not get my patient there and as I was very much tired, I started to wait there but as no patient came, I put my helmet and Bluetooth earphone over a bed there at the 3rd floor of Emergency Building (male Ward) and when I came out the helmet was with me but I forgot to bring my Bluetooth tooth ear-phone”

Roy categorically denied that the ‘Luma’ Bluetooth earphones seized from the crime scene belonged to him as his earphones were manufactured by ‘Boat’. When the Court sought Roy’s explanation regarding the victim’s nipple swab containing his DNA, Roy did not offer an explanation. However, when questioned about the presence of the victim’s blood on the clothes and footwear seized from him on August 12, he claimed that these articles were ‘planted’.

The Court’s reasoning

The Court held that the circumstantial evidence was sufficient to establish Roy’s guilt. In page 157 of the judgment, the Court referred to the following chain of evidence to conclude that Roy was guilty:

“(a) The accused was last seen in the CCTV footage on the way which led to the PO (Place of Occurrence”

(b) Cumulative reading of post mortem report, inquest report, report of MIMB created a chain of circumstances to establish that the death of the victim was homicidal and was due to the effects of manual strangulation (throttling) associated with smothering and that there was evidence of forceful penetration/insertion in the genitalia of the victim.

(c) There was forensic matching of DNA of nipple swab, hair as well as blood of the victim found over the wearing of the accused.

(d) The mobile tower location of the accused showed that he was within the proximity of R.G Kar Hospital.

(e) Admission by the accused about his presence in the CCTV footages proved by the prosecution.

(f) Baseless explanation of the accused during his reply U/s 351 BNSS.”

Critique of the reasoning and the lingering questions

With due respect to the Court and its decision, the Court ought to have assigned reasons as to why certain lapses in the prosecution’s case would not have a bearing on the case.

Firstly, the prosecution and the Court were convinced that Roy had raped the victim by inserting a hard blunt object into the victim’s vagina and there were no signs of a penile intercourse. However, the hard blunt object was not seized by the Kolkata Police or the CBI. Furthermore, the prosecution failed to establish what the hard blunt object was and why it could not be seized. Roy was not charged with destruction of evidence for destroying the object, either. Though the Court repeatedly observed that the medical evidence suggested that the victim was raped using a hard blunt object, it has not assigned reasons as to why the failure to seize the object, describe it or even explain why it could not be seized, would not have a bearing on Roy’s guilt. It also failed to notice that the CCTV footage did not indicate that Roy arrived with such an object or was seen leaving with it.

An important question that the Court ought to have categorically answered is whether the presence of Roy’s DNA in the victim’s nipple swab is sufficient to convict him for rape when the prosecution’s case was that the accused inserted an unrecovered and unexplained blunt object into the victim’s vagina. While the presence of the accused’s DNA in the nipple swab may conclusively establish sexual harassment and non-penetrative sexual assault (Section 74 of the BNS), would it conclusively establish rape by insertion of a hard object?

Secondly, in paragraphs 617 and 642, the Court records that officers of the Kolkata Police and the CBI admitted during their cross-examination that they had not obtained Roy’s fingerprints. It was also admitted that fingerprints were not collected from the Bluetooth earphones seized from the crime scene. The Court ought to have recorded findings and reasons as to why the failure to obtain Roy’s fingerprints and the failure to obtain fingerprints from the Bluetooth earphones would not weaken the prosecution’s case. This assumes significance as Roy denied that the earphones belonged to him and in light of the fact that obtaining Roy’s fingerprints and matching it with the chance prints in the crime scene may have yielded crucial results regarding his presence in the seminar room (crime scene).

Thirdly, although the ‘Luma’ Bluetooth earphones recovered from the crime scene was found to have paired with Roy’s phone, his phone was not seized in a scrupulous manner. From the testimony of Inspector Mukherjee, it appears that Roy’s phone was seized from him when he was detained on August 09 but the police proceeded to charge the phone as the battery was low! Thereafter, it was returned to Roy and seized from him afresh when he was formally arrested on August 10. Therefore, the chain of custody lacks sanctity. Although the Court criticized Inspector Mukherjee for the lapses described above, it did not assign reasons as to why these lapses would not vitiate the evidence that there was ‘continuous pairing’ between the earphones and Roy’s phone. Instead, the Court merely observes that it was Inspector Mukherjee’s “good luck” that the defence did not ask “twisted questions” regarding the lapses.

Fourthly, the Court observed that Roy had failed to provide details of the patient/patients who he wanted to visit at the hospital or summon witnesses to prove his claim. However, Prosecution Witness Sourav (a former civil defence volunteer) deposed that his brother Sagar Bhattacharya had been admitted to R G Kar Hospital and that Roy had accompanied him to the hospital on August 08. In his examination under Section 351 of the BNSS, Roy claimed that on the night of August 08 he wanted to visit Sourav’s brother and other patients. An Assistant Sub-Inspector called Anoop Dutta had deposed that there were police personnel admitted at RG Kar Hospital when the incident occurred and that under his instructions Roy used to visit hospitals including R G Kar Hospital when police personnel and their family members availed treatment at these hospitals. In paragraph 621, the Court records that the Inspector from Kolkata Police admitted that there was a relative of a civil defence volunteer who had been admitted for surgery at the hospital but she did not interrogate the patient or the patient’s relative.

Thus, it is clear that prosecution witnesses admitted that Roy’s job required him to visit R G Kar hospital when police officers or their family members availed treatment. They also admitted that when the incident occurred, few police personnel and a brother of an ex-civil defence volunteer were admitted to the hospital. This being the case, would Roy’s failure to lead defence evidence regarding the identity of the patients and him having met them, prove fatal?

Fifthly, to convict an offender for the offence of murder under Section 103 (1) of the BNS, the prosecution has to prove that the offender intentionally caused death or intentionally caused bodily injury which the offender knew was likely to cause death or intentionally caused bodily injury that was sufficient in the ordinary course of nature to cause death. However, although the Court has discussed how throttling and smothering led to the victim’s death, the Court has not recorded detailed findings and reasons that lead to the conclusion that it is Roy alone who could have throttled or smothered the victim to death, thereby attracting the offence or murder. As pointed out earlier, while the presence of Roy’s DNA in the nipple swab may conclusively establish sexual harassment and certain forms of sexual assault, would it conclusively prove throttling and smothering as well?

It may be argued that proving murder separately is not necessary as a homicidal death as a result of rape is sufficient for a conviction under Section 66 of the BNS. However, as discussed earlier, the prosecution could not establish penile intercourse by Roy and instead contended he raped the victim using a hard blunt object. When the prosecution could not recover the hard blunt object or explain its nature and why it could not be seized, would it be safe to dispense with proof of murder and instead rely on Section 66 of the BNS?

Sixthly, the Court has extensively relied on the recovery of footwear and clothes containing the victim’s blood from Roy’s residence. It is pertinent to note that these articles were seized on August 12 i.e. 2-3 days after Roy was arrested. Roy claimed that these articles were planted at his place of residence and seized through an orchestrated seizure. In page 97 of the judgment, it has been recorded that Roy claimed that his ‘wearings’ (clothes) were taken off when he was detained on August 09 and were seized from his residence on August 12 in an orchestrated manner. Even if the seizure was not disputed, would the presence of the victim’s blood on Roy’s clothes conclusively establish rape and murder by him alone or would it at best lead to an inference of unlawful contact with the victim? These questions ought to be analysed in the context of absence of direct evidence regarding Roy’s involvement.

By raising these six points, the authors do not claim that Roy was wrongly convicted. Instead, the point being made is that the Court’s reasoning does not adequately address these critical aspects of the case.

A criminal trial is a voyage of discovery

The Supreme Court has explained the role of a trial judge in the following words:

“19. In Ram Chander v. State of Haryana, while speaking about the presiding judge in a criminal trial, Chinnappa Reddy, J. observed that if a criminal court is to be an effective instrument in dispensing justice, the presiding judge must cease to be a spectator and a mere recording machine. He must become a participant in the trial by evincing intelligent active interest by putting questions to witnesses in order to ascertain the truth..

Every criminal trial is a voyage of discovery in which truth is the quest. It is the duty of a presiding Judge to explore every avenue open to him in order to discover the truth and to advance the cause of justice. For that purpose, he is expressly invested by Section 165 of the Evidence Act with the right to put questions to witnesses.” (Emphasis supplied)

In the judgment, the Court has made multiple observations regarding the defence counsel’s failure/decision not to raise certain pertinent questions during cross-examination. Citing this failure, the Court has proceeded to treat certain pieces of evidence as unimpeached. For instance, in page 151, the Court observes that it was Inspector Mukherjee’s “good luck” that the defence did not ask “twisted questions” regarding the lapses pertaining to seizure of Roy’s phone and the consequent pairing of the phone with the Bluetooth earphones found at the crime scene.

Yet another crucial observation is found in page 149 wherein the Court observed

“Questions were put to the relevant witnesses of the said hospital about the existence of ramp, other elevators, stair case to go to the said Seminar Room. The answers were affirmative but ultimately no suggestive question was put to any witness that any other person(s) entered into the said Seminar Room.” (Emphasis supplied)

Curiously, the victim’s nipple swab contained a ‘poor percentage’ of female DNA other than the victim’s DNA. When the defence counsel raised this issue while addressing arguments, the prosecutor explained that the presence of female DNA was perhaps due to contamination. The Court eventually accepted the prosecutor’s contention but observed:

“It is fact that during cross-examination of the PW-17 this point of mixed DNA profile was not raised by the defence for the reason best known to the Ld. Defence Counsel and it was argued by the defence for the first time on getting the written notes of argument filed by the complainant”

These are vital factual dimensions of the case which ought to have been probed further by the Court under Section 168 of the Bharatiya Sakhya Adhiniyam, 2023 even if the defence counsel did not raise the required questions and objections.

Does the judgment satisfy cardinal principles?

It is a cardinal principle of criminal jurisprudence in India that suspicion, however grave, cannot take the place of proof. Furthermore, it is settled law that for a conviction to be based on circumstantial evidence, the chain of facts should be consistent only with the hypothesis that the accused is guilty and ought to exclude any reasonable possibility of the accused not being guilty. A lingering question is whether the judgment has conclusively excluded alternative hypotheses such as Roy being guilty of non-penetrative sexual assault alone as opposed to rape and murder. Ruling out alternative hypotheses assumes significance in the context of the prosecution’s burden to prove the accused’s guilt beyond reasonable doubt, as well. It is perhaps needless to state that a presumption may not be drawn mechanically that all the offences committed in the course of a crime may be attributed to an offender against whom one of the several offences are proved.

In light of these principles, the Court ought to have played an active role in the trial and discovered all the facts necessary to record a conclusive finding of guilt. While the ultimate finding of guilt may be correct, the reasoning which led to such a conclusion appears to be deficient. Courts expecting the defence counsel to pursue loose ends can be detrimental to the fundamental right to a fair trial.

Guest Post: Love, Lies and Section 69 of the BNS

[This is a guest post by Sarthak Gupta and Priyam Agarwal]

The Bharatiya Nyaya Sanhita (BNS), 2023 was introduced by Parliament to replace the Indian Penal Code (IPC) that governed criminal jurisprudence for over 160 years. This reform introduces several new provisions, among which Section 69—addressing sexual intercourse obtained through deceitful means—has emerged as a particularly contentious provision. Section 69 seeks to codify and expand legal protections against sexual exploitation through false promises. However, its inclusion has sparked significant academic & legal discourse, with scholars critically examining its potential implications considering its language (calling it shamefully misogynistic), the intention behind its introduction (calling it a propertification of women's bodies), the potential for its misapplication (calling it a perfect recipe for misuse), and over-criminalisation of consensual sexual relations (criminalization of deceptive sex per se). 

In this post, the authors aim to break down Section 69 of the BNS by looking closely at its legal genesis, and possible challenges in interpretation. By critically analysing the provision's language, intent, and potential practical applications, the authors aim to contend that the provision represents an unnecessary and potentially harmful legal intervention that redundantly criminalises complex interpersonal relationships, risks over-criminalisation of consensual sexual interactions, and fails to provide clear interpretative guidelines for distinguishing between genuine changes in relationship dynamics and sexual deception.

The Judicial Genesis of "False Promise to Marry" as a Criminal Offence
The offence of ‘false promise of marriage’ or as commonly termed ‘sex by deception’ was not stipulated in any of the provisions of the IPC, rather it was created by the Indian Courts through their interpretation of Section 375 IPC (Section 63 of the BNS). Section 375 defines rape and outlines the conditions under which a sexual act is considered an act, emphasising the lack of consent as a central element. The term ‘consent’ is not defined under the IPC, however, Section 90 of IPC defines ‘consent’ in negative terms as "a consent is not such a consent as it intended by any section of this Code if the consent is given by a person under fear of injury", or a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception.” 

The first case of false promise of marriage before the Supreme Court was Uday v. State of Karnataka (2003). In this case, SC acquitted the accused based on the reasoning that the prosecutrix, a mature college student, consented to sexual intercourse with the accused out of her own free will. The Court found that she was fully aware of the consequences of her actions and her consent was not based on a misconception of fact. SC observed the essential ingredients of  Section 90 IPC as follows:

• Consent must be proven to have been given under a misconception of fact; and
• It must be demonstrated that the accused knowingly obtained consent through such misconception.

Subsequent SC judgments added multiple layers to the structure of the above principles. Yedla Srinivasa Rao v. State of A.P. (2006), held that obtaining sexual consent through a deliberate false promise of marriage constitutes rape. Similarly, in State of U.P. v. Naushad (2013), the Court convicted an accused who obtained sexual consent by falsely assuring marriage, subsequently refusing to marry after the woman became pregnant. In Pramod Suryabhan Pawar v. State of Maharashtra (2019), SC crystallised the legal standard, stipulating that, first, the consent must involve active, reasoned deliberation. Second, the marriage promise must be demonstrably false and lastly, the promise must directly influence the woman's decision to engage in sexual relations The SC in Pramod Suryabhan consistently distinguished between two critical concepts: a "false promise to marry" and a "mere breach of promise". A false promise involves intentional deceit at the time of making the promise, whereas a breach of promise might result from genuine intentions thwarted by unforeseen circumstances. In Deepak Gulati v. State of Haryana (2013), emphasised that conviction requires proving the accused's mala fide intentions at the promise's inception. Unforeseen circumstances preventing marriage do not automatically constitute false promise. Dhruvaram Murlidhar Sonar v. State of Maharashtra (2019) further refined this approach, acknowledging that not all cases of unfulfilled marriage promises constitute rape, particularly when genuine affection exists. 

Thus, despite being a judicial creation and not being explicitly stated in any provision of IPC, the offence of "sexual intercourse based on the false promise of marriage", was duly covered through judicial interpretation of Sections 375 and Section 90 IPC, and such an act of sexual intercourse had been treated as ‘rape’. Through a series of judgments, courts established specific criteria and conditions for proving this offence. These include:

• The accused must have had no intention of marrying the victim from the very beginning
• The false promise must have been the primary reason for the victim's consent
• The accused must have known or had reason to believe that the consent was given based on a false promise.
• The consent must have been obtained through intentional deception, not merely a change of mind or circumstances.

Thus, Court has consistently emphasised the distinction between a genuinely false promise and a breach of promise due to unforeseen circumstances. This approach highlights the importance of the accused's intent at the time of making the promise, rather than simply focusing on the outcome. The evolution of this jurisprudence has created a framework that allows for the prosecution of cases where consent is vitiated by deception, while also providing safeguards against misuse of the law in cases of genuine changes of heart or circumstance. 

Old Wine in a New Bottle?

While the preceding judicial precedents developed a framework for understanding consent in cases of sexual interactions involving deceptive promises, the legislative intent behind Section 69 is more complex and multifaceted than a simple restatement of judicial practice. The provision potentially aims to address broader scenarios of sexual deception beyond the specific jurisprudential development around marriage promises. It might be a political attempt to create a distinct legal category that encompasses various forms of sexual interactions obtained through fraudulent means, which extend beyond the narrow judicial interpretation focused on marriage promises. The language "sexual intercourse not amounting to rape" suggests a deliberate legislative choice to create a separate legal classification. Without access to the precise legislative debates (which are not out in public discourse) and drafting notes, any interpretation remains speculative. Thus, the assumption of redundancy or mere codification requires a rigorous examination of the legislative intent, the specific language of the provision, and its potential broader applicability beyond existing judicial precedents.

The bare reading of Section 69 BNS reads that any individual who engages in sexual intercourse with a woman by using deceitful means, including making a false promise of employment, promotion, or marriage with no intention of fulfilling it, where such intercourse does not constitute rape, is an offence which shall be punished with imprisonment for up to ten years and shall be liable to fine. The primary issue in Section 69 of the BNS concerns establishing, identifying, and proving the intention behind false promises of marriage, employment, or promotion. This provision targets ‘deceitful conduct’ where an individual uses false assurances to persuade another person to engage in sexual intercourse. This requires not only proving that a promise was made but also that it was intended to be ‘deceptive’ from the outset. Such a determination is inherently subjective, as it involves analyzing the accused's mental state and intent at the time the promise was made. 

The codification of false promise to marry in Section 69 of the BNS represents a concerning example of how judicial doctrines when transformed into statutory offences without careful consideration, can create overbroad and potentially harmful law. First, what worked as a flexible judicial doctrine has been ossified into an inflexible statutory offence. When courts developed the "false promise of marriage" doctrine under Sections 375 and 90 of the IPC, they could exercise discretion, examine contextual factors, and develop nuanced case-by-case applications. Courts could consider the specific circumstances, the nature of the relationship, the parties' backgrounds, and various other factors to determine whether consent was truly vitiated by deception. This judicial flexibility was crucial in distinguishing between malicious deception and genuine changes of heart.

Second, Section 69 of the BNS has extracted this doctrine from its original context within rape law (where it was part of a broader analysis of consent and misconception) and created a standalone offence. This decontextualisation is problematic because it loses the careful balancing that courts had developed between protecting victims of genuine deception while avoiding criminalisation of all broken promises of marriage. The provision lacks the sophisticated safeguards that courts have developed over time. For instance, in cases like Deepak Gulati, (2013) and Dhruvaram Murlidhar Sonar,(2019), SC had carefully distinguished between mere breaches of promise and false promises made with initial deceptive intent. The BNS provision, however, lacks these crucial distinctions, potentially criminalising a much broader range of conduct than the courts ever intended. Lastly, the BNS provision fails to incorporate the evolving understanding of consent, autonomy, and relationships that courts had begun to develop. Modern judicial decisions have started to move away from paternalistic assumptions about women's sexuality and recognise the complexity of contemporary relationships. The BNS provision, however, seems to revert to a more simplified and potentially regressive understanding.

While courts could exercise discretion to prevent misuse of the doctrine, a statutory offence creates a much more rigid framework that could be weaponized in cases of relationship breakdowns. This is particularly concerning given India's social context, where relationships outside marriage often face social stigma (See, the Uttarakhand UCC) and where criminal law can be used as a tool of social control. The fundamental issue is that the BNS has attempted to convert a judicial doctrine - which worked precisely because of its flexibility and context sensitivity - into a rigid statutory offence without adequately considering the implications of this transformation. What served as a useful tool for courts to address genuine cases of sexual exploitation through deception now risks becoming an overbroad criminal provision that could criminalise a wide range of consensual relationships that end in broken promises. The codification creates a dangerous catch-all framework. 

Arguendo, in a relationship between X (male) and Y (female) where they engage in consensual sexual intercourse. X expresses feelings for Y and makes informal statements about possibly marrying her in the future, but no explicit promise is made. Over time, circumstances change, leading to a breakup. Subsequently, Y filed a complaint against X under Section 69 of the BNS, alleging that her consent to sexual intercourse was obtained through ‘deceitful means’ based on X's ambiguous statements about marriage. The above situation raises the key question of whether X's initial intention was genuine or deceitful. The rationale from Deepak Gulati, (2013) and Dhruvaram Murlidhar Sonar,(2019), emphasises that for a conviction under Section 63 (formerly Section 375 IPC), it must be proven that X had ‘no real’ intention to marry from the outset. Given that X's intentions were sincere at the beginning, any legal action would likely be viewed as a breach of promise rather than an act of ‘deceit’. However, the vagueness surrounding the meaning of 'deceitful' intentions complicates matters, as neither the courts nor the legislative have provided clear guidelines on how to assess such intent, leaving room for subjective interpretation. In Uday v. State of Karnataka & Deepak Gulati, (2013), the SC emphasised that mere expressions of future intent do not constitute false promises unless there is clear evidence that the accused never intended to fulfil the promise. Similarly, the Court has held that ‘consent’ must be evaluated based on the context and intentions at the time of the act. If in the above hypothesis, Y's consent stemmed from genuine affection rather than reliance on a clear promise, it becomes challenging to argue that her consent was vitiated by deception. 

Section 28 BNS (earlier Section 90 IPC) invalidates ‘consent’ obtained through misconception of fact, such as false promises of marriage or employment inducements. While Section 69 introduces the concept of "sexual intercourse not amounting to rape," a careful reading reveals its potential redundancy. When consent is vitiated under Section 28, the sexual interaction inherently falls within the definition of ‘rape’. The prosecutrix's consent, being legally compromised due to deception, means the act should be prosecuted for the crime of rape under Section 63 rather than Section 69. Hence, the overlap between Sections 63 and 69 raises questions about the necessity of the latter, as situations involving deception are already covered under existing provisions.  The subjective nature of personal relationships complicates matters further. Y's feelings and motivations for consenting to sexual intercourse may not have been solely based on X's statements but rather on mutual affection and desire. Thus, proving that her consent was vitiated by a false promise becomes challenging. 

The absence of explicit promises creates a precarious situation for X, who may find himself facing serious allegations despite the consensual nature of their relationship. The above scenario highlights broader concerns regarding Section 69 of the BNS, which aims to address sexual intercourse obtained through deceitful means. However, its application can lead to inconsistencies and potential misuse, as individuals may retrospectively claim that their consent was based on misleading promises after a relationship ends. The law's vague definitions surrounding 'deceitful' intentions further complicate its enforcement, risking arbitrary interpretations that could unfairly penalise individuals like X.

Notes from foreign fields

Laws addressing sexual offences based on false promises of marriage vary significantly across jurisdictions, reflecting different cultural, social, and legal contexts, with significant variations between common law and European jurisdictions. While some legal systems advocate for comprehensive criminalisation of any deceptive sexual interaction as a violation of sexual autonomy, most scholars and jurisdictions recognise the need for nuanced differentiation. Moreover, the term ‘deceitful’ from the comparative perspective has been defined through varied acts which inter alia include, a person lying to obtain sex [Israel v. Alkobi, (Israel)]; biological sex [McNally v. R (UK)]; using contraception [Julian Assange v. Swedish Prosecution Authority (UK)]; having sexually transmitted diseases [R. v. Cuerrier, (Canada)], removing a condom during sex [R(F) v. DPP, (UK)]; false promise to withdraw before ejaculation voids consent [R. v. Lawrence, (UK)]; false promise to marriage [Parker v. Bruner, (USA)]; false facial features like moustache [R. v. Cuerrier, (Canada)]; and misleading advertisement of wealth or social status [People v. Evans (USA)]. 

The conventional criminal law framework distinguishes between two categories of sexual deception: fraud in factum (deception about the very nature of the sexual act itself, such as medical manipulation or spousal impersonation) and fraud in inducement (deception that induces consent, like false marriage promises). In European Countries, like Germany and Spain, consensual sexual interactions obtained through deception between mentally competent adults are not typically criminalised, with Italy specifically limiting criminal sanctions to cases of direct personal impersonation. Common law countries like Canada, England, and the United States tend to criminalise acts falling under fraud in factum, while being more hesitant to penalise fraud in inducement. In the United States, the Tennessee Criminal Code under Section 39-13-503(a)(4) (2005), has been redefined to include “sexual penetration accomplished by fraud.” Alabama also identified the offence of Sexual Misconduct which applies to men only, who engage in sexual intercourse with a woman "with her consent where consent was obtained by the use of any fraud or artifice". California, Idaho, and many other states have similar provisions. However, it must be noted that fraud in the factum occurs when the Defendant’s deception causes the victim to believe that she is consenting to an act that is not sexual intercourse [See, Prof. Blum here]. Similarly, in the UK, the Sexual Offences Act 2003 criminalises sexual offences extending impersonation from impersonating the woman’s legal husband to "impersonating a person known personally to the complainant". 

In Canada, Section 265(3) of the Criminal Code includes provisions against sexual assault and recognizes that consent must be informed and voluntary. In R v. Crangle, (2010), the Canadian Court convicted the accused of sexual assault after impersonating his twin brother and sleeping with his brother’s girlfriend. In Australia, Section 218(1)(a) and (4) of the Criminal Code states that any person by coercion procures another person to engage in a sexual act, either in Queensland or elsewhere, wherein the coercion means intimidation or threats of any kind; or assaulting a person; or damaging the property of a person, or making false representations or using false pretense or fraudulent means.  In the case of R. v. McKelvey [1914], the Australian Court found the accused guilty of sexual assault on the fact that he obtained sex by lying about marrying the victim.

Similarly, Section 376H of the Singapore Penal Code, any "procurement of sexual activity by deception or false representation (where there is penetration): imprisonment of up to 10 years or fine or caning, or any combination of such punishments." Section 346(a)(1) of the Israel Penal Law states that "if a person had intercourse with a minor who has reached age 14 but has not yet reached age 16 and who is not married to him, or if a person has intercourse with a minor who has reached age 16, but has not yet reached age 18, by exploiting a relationship of dependence, authority, education or supervision, or by a false promise of marriage, then he is liable to five years imprisonment."

Thus, the common law countries' jurisdictions adopt a markedly different approach to addressing sexual deception, preferring a more nuanced and contextual legal strategy rather than creating a specific, standalone provision for sexual assault based on false marriage promises. Instead of establishing a discrete legal category for false marriage promise-induced sexual interactions, these jurisdictions typically address such scenarios through broader interpretive frameworks of sexual assault, consent, and fraud. This approach allows for more flexible judicial interpretation, enabling courts to assess the specific circumstances, intent, and nature of deception on a case-by-case basis. By embedding such considerations within existing legal doctrines rather than creating a separate statutory provision, common law systems (discussed above) maintain a more dynamic and context-sensitive approach to understanding and adjudicating complex sexual interactions involving deception.

Conclusion

Section 69 BNS is not just a mere codification of existing judicial interpretations, the language of the provision introduces an ambiguous concept of ‘deceitful means’ without providing clear interpretative guidelines. This creates a significant risk of arbitrary legal application, potentially criminalizing the inherent complexities of interpersonal relationships where intentions may have genuinely evolved or where consent was not solely predicated on a specific promise.  Section 69 complexity reminds us of the legal intricacies observed where constitutional privileges created unintended loopholes in accountability. In the case of P.V. Narasimha Rao v. State, the Court recognised that Members of Parliament enjoy certain privileges under Article 105 of the Constitution providing a shield to them from any legal consequences when acting within their parliamentary duties. However, an important distinction was made: those who accepted bribes but did not cast votes in Parliament were deemed liable for prosecution, while those who did vote were granted immunity. This distinction led to an unintended consequence, where law could be exploited, allowing some individuals to evade accountability while others faced legal repercussions. In March 2024, the SC addressed this issue by overturning the Narasimha Rao Rule, emphasising that such privileges should not shield individuals from criminal liability when their actions fall outside the scope of parliamentary functions. In Section 69, we see a parallel risk—a provision ostensibly meant to protect against sexual deception might paradoxically become a mechanism for retrospective legal manipulation of consensual relationships, much like how parliamentary privilege was historically misused to shield certain actions from genuine legal scrutiny.