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DR M K MISHRA   15 February 2020

Whether section 354 a ipc can be applied retrospectively.

Respected Sir,

Please give information that

(i) Whether the charges can be framed by JFMC under  Section 354a of IPC (as per criminal amendment act 2013)  for the incident which occurred in the year 2010 as alleged ?

(ii) Whether  Section 354A  of IPC  can be applied retrospective / retroactive?

(iii) If there is case law for/against the above questions then kindly quote it.

Thanks in advance for your valuable opinion.

Yours Faithfully,

DR. M.K.MISHRA



Learning

 4 Replies

Joy Bose   16 February 2020

Hello,

Article 20 of the Indian Constitution is divided into two parts. Under the first part, no person shall be convicted of any offence except for violation of ‘law in force’ at the time of the commission of the act charged as an offence. A person is to be convicted for violating a law in force when the act charged is committed.

In Smt. Dayawati v. Inderjit , It was held that "Now as a general proposition, it, may be admitted that ordinarily a Court of appeal cannot take into account a new law, brought into existence after the judgment appealed from has been rendered, because the rights of the litigants in an appeal are determined under the law in force at the date of the suit.

So in criminal laws, no law can be applied retrospectively. Article 354A cannot be applied Retrospectively.

Regards,

Joy Bose

 

 

 

1 Like

Advocate Abhishek Sinha (Advocate)     16 February 2020

Dear Mr. Mishra,

Sections 354 and its sub sections were actually inserted in the Indian Penal Code in the year 2013 and hence any complaint under this section(or sub-sections) cannot be filed for an incident which practically took place prior to 2013. This is also in view of the fundamental right guaranteed under Article 20(1) of the Constitution.

This is the reason why many of the #Metoo complaints which were prior to 2013 didn't get considered and were not filed under these sections.

For Instance, in Tanushree Dutta’s accusations against Nana Patekar, the incident was of 2008 and therefore this complaint by her is legally not considerable but yes if the Court accepts the reason of this delay it could get cosidered. This is because, there is a provision in law that the Hon'ble Court may take cognizance even beyond such limitation period, if and only if, it is satisfied on the facts and the circumstances of the case and that the delay has been properly explained or that it was necessary to do so in the interest of justice. But yes, the chances of the Hon'ble Court exercising such unusual authority would be limited and situational if the incident is very old and out of the normal purview of limitations and that there is no satisfactory explanation for the delay in filing of complaint. So it will all depend on the Hon'ble Court to consider or not to consider the complaint and the reason of the delay depending on the facts, circumstances and seriousness of the offence.

Trying is never bad and yes it all depends upon how the facts,situation & case is presented in the Hon'ble Court.

Thanks & Regards

Adv.Abhishek Sinha

Mumbai

7045949997

 

 

2 Like

DR M K MISHRA   16 February 2020

Thanks, Sir.

 

DR M K MISHRA   16 February 2020

Thanking you Sir


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