Canada SC
Case BriefsForeign Courts

Supreme Court of Canada: The instant matter revolved around a challenge to the constitutionality of Section 33.1 of the Criminal Code which dealt with the unavailability of self-induced intoxication as a defence for criminal acts like assault etc. The bench of the Court comprising of Wagner C.J. and Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin, Kasirer and Jamal JJ., in an unanimous decision, held that, Sec. 33.1 violates S. 7 of the Canadian Charter of Rights and Freedoms by allowing a conviction without proof of mens rea or proof of voluntariness. It was observed that, “Section 33.1(1) of the Criminal Code eliminates the defence of self-induced intoxication akin to automatism applied to violent offences… Section 33.1 does not create a new predicate act offence of self-induced extreme intoxication or a new criminal negligence offence. The accused faces the full stigma of conviction and the full brunt of punishment for the general intent offence.”

Facts of the Case: The appellant [hereinafter ‘B’], at a house party, had consumed ‘magic mushrooms’ which is a hallucinogen. The consumption of the drug led to ‘B’ losing his grip over reality. As per ‘B’, he was not simply drunk or high: while capable of physical movement, he was in a psychotic state and had no willed control over his actions.

He broke into the nearby house of a stranger and attacked the occupant, causing permanent injuries. He further broke into another residence and the occupants called the police. Consequently, ‘B’ was charged with break and enter and aggravated assault, and mischief to property.

Contentions: The appellant contended that he is not guilty of the offences by reason of automatism. The appellant’s contentions were corroborated by the expert witnesses who confirmed that ‘B’ had no voluntary control over his conduct at the time.

The respondent (the Crown) invoked S. 33.1 of the Criminal Code preventing ‘B’ from relying on self-induced intoxication akin to automatism as a defence to the charge of aggravated assault. The respondents stated that the Canadian Parliament added S. 33.1 in response this Court’s ruling in Henri Daviault v. Her Majesty the Queen, 1994 SCC OnLine Can SC 83, wherein the majority had confirmed a common law rule that intoxication is not a defence to crimes of general intent.

The respondents, however, prayed to the Court to interpret S. 33.1 as validly imposing liability for violent crimes based on a standard of criminal negligence

Observations: Perusing the facts and contentions of the case, Justice Kasirer (who delivered the unanimous decision) observed that the impugned provision does not establish a proper measure of criminal fault by reason of intoxication; instead, it imposes liability for the violent offence if an accused interferes with the bodily integrity of another “while” in a state of self-induced intoxication rendering them incapable of consciously controlling their behaviour.

Given the gravity of the issue, the Court some salient observations –

  • It was held that the provision is violative Canadian Charter of Rights and Freedoms because an accused person under the impugned provision is not being held to account for their conduct undertaken as free agents, instead, the accused is called to answer for the general intent crime that they cannot voluntarily or wilfully commit. “To deprive a person of their liberty for that involuntary conduct committed in a state akin to automatism — conduct that cannot be criminal — violates the principles of fundamental justice in a system of criminal justice based on personal responsibility for one’s actions. On its face, not only does the text of S. 33.1 fail to provide a constitutionally compliant fault for the underlying offence set out in its third paragraph, it creates what amounts to a crime of absolute liability.”
  • The Court observed that the impugned provision also transgresses the right to be presumed innocent until proven guilty guaranteed by S. 11(d) of the Charter. To convict the accused, the Crown must prove all the essential elements of an offence beyond reasonable doubt.
  • The Court noted that the rights of victims of intoxicated violence, in particular the rights of women and children, should be considered at the justification stage under S. 1 of the Charter rather than informing the analysis of a possible breach of the accused’s rights under S. 7. “Balancing competing Charter rights under the breach analysis should occur where the rights of the accused and another party conflict and are directly implicated by state action. The equality, dignity and security interests of vulnerable groups informed the overarching public policy goals of Parliament but they are best considered under S. 1”.

Along with the aforementioned observations, the Court pointed out that the Parliament has before itself a strong record that highlights the strong correlation between alcohol and drug use and violent offences, in particular against women. The issues regarding ensuring the equality, dignity, and security rights of all victims of intoxicated violence must be looked upon thoroughly by the Parliament, therefore it is all the more necessary that the Crown must show on a balance of probabilities that the limits of Ss. 7 and 11(d) of the Charter brought by S. 33.1 are reasonable and demonstrably justified under S. 1 of the Charter. “Given the patent risk that S. 33.1 may result in the conviction of an accused person who had no reason to believe that their voluntary intoxication would lead to a violent consequence, S. 33.1 fails at the proportionality step and thus cannot be saved under S. 1”.

[R. v. Brown, 2022 SCC 18, decided on 13.05.2022]

Sucheta Sarkar, Editorial Assistant has reported this brief.

Op EdsOP. ED.

While a Division Bench of the Delhi High Court is hearing a challenge to the constitutional validity of the law relating to marital rape, this article aspires to examine another aspect of rape: whether consensual sexual intercourse on a false promise to marry would amount to rape. As per the century-and-a-half old Penal Code1, “consent” or the lack of it is the cornerstone to classify copulation as rape. If one exists, the other disappears.2So, this piece examines the dichotomy in the judicial opinions on the subject.

Sections 375 to 3773 IPC define “sexual offences” and prescribe punishment too. As adverted to above, of pivotal importance for attracting these offences is whether there is wilful consent for the act. In the language of Section 3754 itself, the legislature has specified seven descriptive circumstances when the offence of rape occurs. Of course, consent obtained by threat or coercion or under intoxication cannot be considered consent given by free will. As is evident from a bare reading of the above seven circumstances mentioned in the provision, none of them can be considered “consent” by free will.

It was in Uday v. State of Karnataka[1], the Supreme Court had, for the first time, an occasion to consider the question whether consent given by a woman based on a promise to marry by the man would amount to rape. In that case, the woman and the man were in love with each other, and the woman had consented to sexual intercourse. It led to her pregnancy. While acquitting the accused, the Court held that the question whether consent was given on a misconception of fact was to be decided on a case-to-case basis; after examining several judgments of various High Courts, the Court in Uday6 has held:

  1. It therefore appears that the consensus of judicial opinion is in favour of the view that the consent given by the prosecutrix to sexual intercourse with a person with whom she is deeply in love on a promise that he would marry her on a later date, cannot be said to be given under misconception of fact. A false promise is not a fact within the meaning of the Code….

While thus holding, the Court has also noted that the issue whether the consent was free or not and the surrounding circumstances of the “consent” have to be examined on a case-to-case basis. The Court, in the end, holds:

25.… In a case of this nature two conditions must be fulfilled for the application of Section 90 IPC7. Firstly, it must be shown that the consent was given under a misconception of fact. Secondly, it must be proved that the person who obtained the consent knew, or had reason to believe that the consent was given in consequence of such misconception….8

The Court, however, has not answered the question whether “misconception of fact” in Section 90 has to be restricted to circumstances spelt out in Section 375 and whether Section 90, too, applies to circumstances not enumerated in Section 375.9

            Subsequently, in Deelip Singh v. State of Bihar10, the Court has also laid down the test whether at the very inception of his making the promise, the accused held out a false promise to secure the consent. The Court has noted that the phrase “against the will” seemed “to connote that the offending act was done despite resistance and opposition of the woman”.11 The Court has placed reliance on Section 90, and held:

  1. The factors set out in the first part of Section 90 are from the point of view of the victim. The second part of Section 90 enacts the corresponding provision from the point of view of the accused. It envisages that the accused too has knowledge or has reason to believe that the consent was given by the victim in consequence of fear of injury or misconception of fact. Thus, the second part lays emphasis on the knowledge or reasonable belief of the person who obtains the tainted consent. The requirement of both the parts should be cumulatively satisfied. In other words, the court has to see whether the person given the consent had given it under fear of injury or misconception of fact and the court should also be satisfied … of the fact or should have reason to think that but for the fear or misconception, the consent would not have been given. This is the scheme of Section 90 which is couched in negative terminology.12

Neither in Uday13 nor in Deelip Singh14 was the consent obtained forcibly. Contrast this with Yedla Srinivasa Rao v. State of A.P.15In that case, the accused had intercourse with the victim forcibly. Then, after impregnating, he pacified her by promising marriage. The conviction was upheld, as the Court held that the intention was not honest from the beginning; he only promised to marry the prosecutrix when she became pregnant. The facts of this case are different to the extent that there was no consent for sexual intercourse; therefore, the circumstance mentioned as “firstly”—against her will—stood satisfied. Coercive element established, the Court ought not have even enquired into the existence of any promise or assurance to marry. It is non sequitur. Respectfully, it is submitted that Court has erred in holding:

  1. In the present case, in view of the facts as mentioned above we are satisfied that the consent which had been obtained by the accused was not a voluntary one which was given by her under misconception of fact that the accused would marry her but this is not a consent in law….16

In Deepak Gulati v. State of Haryana17, the woman consented to sexual intercourse on the understanding that the accused would marry her, though “she was conscious of the fact that her marriage may not take place owing to various considerations, including the caste factor”. On his conviction, the accused had served over three years of his sentence before the Supreme Court acquitted him. In that context, the Court has held:

  1. Consent may be express or implied, coerced or misguided, obtained willingly or through deceit. Consent is an act of reason, accompanied by deliberation, the mind weighing, as in a balance, the good and evil on each side. There is a clear distinction between rape and consensual sex and in a case like this, the court must very carefully examine whether the accused had actually wanted to marry the victim, or had mala fide motives, and had made a false promise to this effect only to satisfy his lust, as the latter falls within the ambit of cheating or deception. There is a distinction between the mere breach of a promise, and not fulfilling a false promise. Thus, the court must examine whether there was made, at an early stage a false promise of marriage by the accused; and whether the consent involved was given after wholly understating the nature and consequences of sexual indulgence. There may be a case where the prosecutrix agrees to have sexual intercourse on account of her love and passion for the accused, or where an accused on account of circumstances which he could not have foreseen, or which were beyond his control, was unable to marry her, despite having every intention to do so. Such cases must be treated differently. An accused can be convicted for rape only if the court reaches a conclusion that the intention of the accused was mala fide, and that he had clandestine motives.18

In Kaini Rajan v. State of Kerala19, the accused was acquitted on a reasonable doubt in the prosecution’s case. The Supreme  Court has observed:

  1. Section 375 IPC defines the expression “rape”, which indicates that the first clause operates, where the woman is in possession of her senses, and therefore, capable of consenting but the act is done against her will; and second, where it is done without her consent; the third, fourth and fifth, when there is consent, but it is not such a consent as excuses the offender, because it is obtained by putting her or any person in whom she is interested in fear of death or hurt. The expression “against her will” means that the act must have been done in spite of the opposition of the woman. An inference as to consent can be drawn if only based on evidence or probabilities of the case. “Consent” is also stated to be an act of reason coupled with deliberation. It denotes an active will in the mind of a person to permit the doing of an act complained of. Section 90 IPC refers to the expression “consent”. Section 90, though, does not define “consent”, but describes what is not consent. “Consent”, for the purpose of Section 375, requires voluntary participation not only after the exercise of intelligence based on the knowledge of the significance and moral quality of the act but after having fully exercised the choice between resistance and assent. Whether there was consent or not, is to be ascertained only on a careful study of all relevant circumstances. (See State of H.P. v. Mango Ram20)

In Karthi v. State21, as was in Yedla Srinivasa Rao22, to the first instance of sexual intercourse, there was no consent. But later, the accused silenced the prosecutrix with a promise of marriage. Thereafter, several acts of intercourse took place—with her consent. In that backdrop, the Supreme Court has upheld the conviction for rape. Similarly, in State of U.P. v. Naushad23, the Court placed reliance on Section 90 and held:

  1. In the present case, the accused had sexual intercourse with the prosecutrix by giving false assurance to the prosecutrix that he would marry her. After she got pregnant, he refused to do so. From this, it is evident that he never intended to marry her and procured her consent only for the reason of having sexual relations with her, which act of the accused falls squarely under the definition of rape as he had sexual intercourse with her consent which was consent obtained under a misconception of fact as defined under Section 90 IPC. Thus, the alleged consent said to have been obtained by the accused was not voluntary consent and this Court is of the view that the accused indulged in sexual intercourse with the prosecutrix by misconstruing to her his true intentions. It is apparent from the evidence that the accused only wanted to indulge in sexual intercourse with her and was under no intention of actually marrying the prosecutrix. He made a false promise to her and he never aimed to marry her. 

More recently, in Pramod SuryabhanPawar v. State of Maharashtra24, while acquitting the accused, the Supreme Court has summarised the law:

  1. To summarise the legal position that emerges from the above cases, the “consent” of a woman with respect to Section 375 must involve an active and reasoned deliberation towards the proposed act. To establish whether the “consent” was vitiated by a “misconception of fact” arising out of a promise to marry, two proportions must be established. The promise of marriage must have been a false promise, given in bad faith and with no intention of being adhered to at the time it was given. The false promise itself must be of immediate relevance, or bear a direct nexus to the women’s decision to engage in the sexual act.

 The law regarding “consent” has been followed in Anurag Soni v. State of Chhattisgarh25. In that case, the consent for sexual intercourse was found to be on “a misconception of fact” as understood under Section 90. From the beginning, as it emerged, the accused had no intention to marry the prosecutrix. While making his promise, the accused knew it to be a false one. In Dhruvaram Murlidhar Sonar v. State of Maharashtra26, while allowing the appeal, the Supreme Court has examined the law on the subject and held:

  1. Thus, there is a clear distinction between rape and consensual sex. The court, in such cases, must very carefully examine whether the complainant had actually wanted to marry the victim or had mala fide motives and had made a false promise to this effect only to satisfy his lust, as the latter falls within the ambit of cheating or deception. There is also a distinction between mere breach of a promise and not fulfilling a false promise. If the accused has not made the promise with the sole intention to seduce the prosecutrix to indulge in sexual acts, such an act would not amount to rape. There may be a case where the prosecutrix agrees to have sexual intercourse on account of her love and passion for the accused and not solely on account of the misconception created by the accused, or where an accused, on account of circumstances which he could not have foreseen or which were beyond his control, was unable to marry her despite having every intention to do. Such cases must be treated differently. If the complainant (sic) had any mala fide intention and if he had clandestine motives, it is a clear case of rape. The acknowledged consensual physical relationship between the parties would not constitute an offence under Section 376 IPC27.

Even in Maheshwar Tigga v. State of Jharkhand28, the Supreme Court adhered to the law laid down from Uday29 onwards. But in the facts and circumstances of that case, the Court has held that “the consent of the prosecutrix was but a conscious and deliberated choice, as distinct from an involuntary action or denial and which opportunity was available to her….”30 As a result, the accused was acquitted. More recently, in Sonu v. State of U.P.31, the Supreme Court quashed an FIR, on the ground that:

  1. (t)here is no allegation to the effect that the promise to marry was given to the second respondent was false at the inception. On the contrary, it would appear from the contents of the FIR that there was a subsequent refusal on the part of the appellant to marry the second respondent which gave rise to the registration of the FIR.32

Thus, for almost two decades, the law has consistently been that a consent given for sexual intercourse on a false promise to marry would be a consent given on the “misconception of fact” and hence, does not amount to valid consent under Section 90. In other words, it amounts to rape. The Court, in all the above quoted judgments, has not considered Explanation 2 to Section 375, which reads as under:

Explanation 2.—Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act:

Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity.33

Put plainly, “consent” must unequivocally be for the sexual act, and the basis for the consent is not relevant for the purpose of the section. Further, the word “fact” in Section 90, of which there must be a “misconception”, ought to be of the sexual act, and not some other circumstance or fact. That is, for the offence not to be attracted, the sexual act must be consented to. Indeed, the Court has recognised in KainiRajan34 that “consent” was “an act of reason coupled with deliberation” and that it denotes “an active will in the mind of a person to permit the doing of an act complained of”.35

In our respectful view, if there is free and unequivocal consent for the sexual act—in the absence of any specific legislative mandate—the basis for such free and unequivocal consent, such as a promise to marry, is irrelevant. The intent of the legislature is clear from the second explanation. With utmost respect, when the provision categorically enumerates situations in which consent obtained under either threat or coercion as being no consent, and the section having categorically left out conditional consent, it cannot be said that consent obtained on a promise to marry is not free consent. What is germane to Section 375 is whether there is consent by free will for sexual intercourse, and such consent is not obtained from a girl of less than 18 years of age or such consent is not obtained by threat, coercion or intoxication. When none of these factors are directly attracted, and a consent is given on “promise to marry”, it can hardly be said that such consent is not consent by free will.

For example, in R. v. Flattery36, a nineteen-year-old girl consulted the accused, a doctor, for treatment for an illness. And the accused, on the pretext of giving her surgical treatment, had carnal intercourse. The victim having submitted herself on the genuine belief that she was being treated, the accused was held guilty of rape. Similarly, in R. v. Williams37, when the accused, who was engaged by the victim to give her lessons in singing, had sexual intercourse with the victim on the pretext that he had to perform an operation on her to produce her voice properly. Thus, the victim having submitted herself on this premise but without any intention of having sexual intercourse, the King’s Bench upheld the conviction of rape. In Williams38, the King’s Bench Court placed reliance on the opinion of Branson, J. in Reg. v. Dicken39 thus:

Branson, J. stated the law in the course of the summing up in the present case in accurate terms. He said: “The law has laid it down that where a girl’s consent is procured by the means which the girl says this prisoner adopted, that is to say, where she is persuaded that what is being done to her is not the ordinary act of sexual intercourse but is some medical or surgical operation in order to give her relief from some disability from which she is suffering, then that is rape although the actual thing that was done was done with her consent, because she never consented to the act of sexual intercourse. She was persuaded to consent to what he did because she thought it was a surgical operation.40

In other words, only when the consent is given for an act, which the consent giver is not knowing to be a sexual act, can the offence of rape be attracted. Such a consent would fall within the ambit of “misconception of fact” even under Section 90 IPC. It is settled law that a criminal statute must be interpreted in a strict manner, and, it is submitted, the law laid down by the Supreme Court regarding “the consent for sexual intercourse on a false promise to marry” as attracting the offence of rape would amount to reading words into the statute—words that do not exist.

Recently, two High Courts, while taking a completely contrary stand on the issue, have expressed a need for the legislature to clarify the issue. The Allahabad High Court, in Harshvardhan Yadav v. State of U.P.41, has noted that till the legislature provides for “a clear and specific legal framework where the accused obtained consent for sexual intercourse on the false promise of marriage”, the Court should continue to give protection “to such women who have suffered on account of false promise of marriage”.42 Conversely, the Orissa High Court in G. Achyut Kumar v. State of Odisha43, while hearing an application for bail, has opined that “the automatic extension of provision of Section 90 IPC to determine the effect of a consent under Section 375 deserves a serious relook. The law holding that false promise to marriage amounts to rape appears to be erroneous”.44

It is submitted that intertwining consent for intercourse with marriage may not reflect the change in societal attitude. In the present day and age, the law recognises a “relationship in the nature of marriage”45 —colloquially called a live-in relationship. It was once frowned upon as morally decadent. O tempora, o mores! So, the interpretation given by the Supreme Court, with marching times and changing social mores, requires a reconsideration. From Uday46 to Sonu47, the law on this aspect has stood like a rock—fossilised, so to say. In an appropriate case, the Supreme Court must revisit the purport of “misconception of fact” in Section 90 for the offence of rape.

*Advocate on Record, Supreme Court of India.

**Advocate on Record, Supreme Court of India. Author can be reached at

1Penal Code, 1860.

2This would not apply to “consent” by a girl less than 18 years of age.

3Penal Code, 1860, Ss. 375-377.

4Penal Code, S. 375.

[1](2003) 4 SCC 46.

6(2003) 4 SCC 46, 56-57.

7Penal Code, 1860, S. 90.

8Uday v. State of Karnataka, (2003) 4 SCC 46, 58.

9Uday v. State of Karnataka, (2003) 4 SCC 46, 59, para 26.

10(2005) 1 SCC 88.

11Deelip Singh v. State of Bihar, (2005) 1 SCC 88, 97, para 12.

12Deelip Singh v. State of Bihar, (2005) 1 SCC 88, 99.

13(2003) 4 SCC 46.

14(2005) 1 SCC 88.

15(2006) 11 SCC 615.

16Yedla Srinivasa Rao v. State of A.P., (2006) 11 SCC 615, 624.

17(2013) 7 SCC 675.

18Deepak Gulati v. State of Haryana, (2013) 7 SCC 675, 682.

19(2013) 9 SCC 113, 118.

20(2000) 7 SCC 224.

21(2013) 12 SCC 710.

22(2006) 11 SCC 615.

23(2013) 16 SCC 651, 658.

24(2019) 9 SCC 608, 620.

25(2019) 13 SCC 1.

26(2019) 18 SCC 191, 202.

27Penal Code, 1860, S. 376.

28(2020) 10 SCC 108.

29(2003) 4 SCC 46.

30Maheshwar Tigga v. State of Jharkhand, (2020) 10 SCC 108, 117,para 20.

312021 SCC OnLine SC 181.

32Sonu v. State of U.P., 2021 SCC OnLine SC 181.

33Penal Code, 1860, Expln. 2 to S. 375.

34(2013) 9 SCC 113.

35KainiRajan v. State of Kerala, (2013) 9 SCC 113, 118.

36(1877) 2 QBD 410.

37(1923) 1 KB 340.

38(1923) 1 KB 340.

39 (1877) 14 Cox, C.C. 8.

40See R. v. Williams, (1923) 1 KB 340, 347.

412021 SCC OnLine All 500.

42Harshvardhan Yadav v. State of U.P., 2021 SCC OnLine All 500, para 30.

432020 SCC OnLine Ori 417.

44G. Achyut Kumar v. State of Odisha, 2020 SCC OnLine Ori 417, para 15.

45See, Protection of Women from Domestic Violence Act, 2005.

46(2003) 4 SCC 46.

472021 SCC OnLine SC 181.

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: Sophy Thomas, J., quashed proceedings against the petitioner who was charge sheeted for being under the influence of alcohol during his visit to police station for identifying an accused. The Bench stated,

“Consuming liquor in a private place without causing nuisance or annoyance to anybody will not attract any offence”

Facts of the Case

The petitioner, a Village Assistant was called to the Police Station in order to identify an accused, against whom a case was registered under Section 353 of IPC and Section 20 of the Kerala Protection of River Banks and Regulation of Removal of Sand Act.

The grievance of the petitioner was that since that accused was a stranger to him, he could not identify him, and only because of that fact, Police had charge sheeted him under Section 118(a) of the Kerala Police Act alleging that he was under the influence of alcohol at that time.

While the FIR suggested that the petitioner was intoxicated and was unable to control himself and the 161 statements of the witnesses were to the effect that the petitioner challenged the Police and committed rioting inside the Police Station.

Findings of the Court

In order to attract an offence punishable under Section 118(a) of the KP Act, a person should be found in a public place in an intoxicated manner or rioting condition incapable of looking after himself.

The Bench opined that even if it was taken for argument sake that the petitioner had consumed alcohol at that time, the available records did not show that the petitioner was sent to doctor for a clinical examination, or to show that his blood test was conducted to prove that he was intoxicated.

The records show that he was subjected to Alco-quant test using Alcometer. All the witnesses are Police Officers except one Saseendran, who was the accused arrested under the Sand Act, to identify whom the petitioner was called to the Police Station.

The meaning of the word ‘intoxicated’ as given in Advanced Law lexicon by P.Ramanatha Aiyar is that “a man is intoxicated whenever he is so much under the influence of spirituous or intoxicating liquors that it so operates upon him, that it so affects his acts or conduct or movement, that the public or parties coming in contact with him could readily see and know that it was affecting him in that respect.”

The Bench observed, the expression ‘rioting condition’ used in Section 118 (a) would mean that the person was behaving in a way that is violent and/or not in control. While the condition ‘incapable of looking after himself’ envisaged under Section 118 (a) of the KP Act, means weakening of self-control, weakening of self-awareness, and incapacity to know or realize the consequences of the action etc are relevant factors. Similarly, incoherent speech, unsteady gait, staggering etc., and the manner in which he conducts himself towards fellow-men were also relevant factors to hold whether the accused person was in proper control of himself.


Having observed various terms used against the petitioner with regard to the particular case against him, the Bench held that even if it was taken for argument sake that the petitioner had consumed alcohol, the available facts and materials were not sufficient to suggest that, he was not able to control himself or he committed rioting inside the Police Station causing nuisance.

Moreover, the petitioner had reached Police Station, only because he was asked to be present there. Hence, the petition was allowed and the proceedings against the petitioner were quashed. The petitioner was directed to be discharged. [Salim Kumar B.S. v. State of Kerala,2021 SCC OnLine Ker 4136, decided on 10-11-2021]

Kamini Sharma, Editorial Assistant has reported this brief.

Appearance by:

For the Petitioner: Advocate I.V.Pramod, Advocate K.V.Sasidharan and Advocate Saira Souraj P.

For the Respondent: Devi Shri R., Public Prosecutor

Case BriefsSupreme Court

Supreme Court: In an interesting case, the 3-judge bench of UU Lalit, Indira Banerjee and KM Joseph*, JJ has held that while in case where there is a blood test or breath test, which indicates that there is no consumption at all, undoubtedly, it would not be open to the insurer to set up the case of exclusion, however, the absence of test may not disable the insurer from establishing a case for exclusion from liability on ground of drunk driving.

How to decide if the driver was “under the influence of intoxicating liquor”?

If in a case, without there being any blood test, circumstances, associated with effects of consumption of alcohol, are proved, it may certainly go to show that the person who drove the vehicle, had come under the influence of alcohol. The manner, in which the vehicle was driven, may again, if it unerringly points to the person having been under the influence of alcohol, be reckoned.

“Evidence, if forthcoming, of an unsteady gait, smell of alcohol, the eyes being congested, apart from, of course, actual consumption of alcohol, either before the commencement of the driving or even during the process of driving, along with the manner in which the accident took place, may point to the driver being under the influence of alcohol. It would be a finding based on the effect of the pleadings and the evidence.”

What does Section 185 of the Motor Vehicles Act state?

Section 185 of the Motor Vehicles Act creates a criminal offence dealing with driving by a drunken person or by a person under the influence of drugs. The Section mandates the proving of the objective criteria of presence of alcohol exceeding 30 mg per 100 ml. of blood in a test by a breath analyser.

Being a criminal offence, it is indisputable that the ingredients of the offence must be established as contemplated by law which means that the case must be proved beyond reasonable doubt and evidence must clearly indicate the level of alcohol in excess of 30 mg in 100 ml blood and what is more such presence must be borne out by a test by a breath analyser. With effect from 01.09.2019, the following words have been added to Section 185, that is “or in any other test including laboratory test”.

“The law does not prohibit driving after consuming liquor and all that is prohibited is, that the percentage of liquor should not exceed 30 mg. per 100 ml. of blood. Therefore, the understanding appears to be that only in circumstances, where the act of driving, having consumed liquor, attracts the wrath of Section 185 and an offence is committed thereunder, that the opprobrium of the Exclusion Clause in the Contract of Insurance, for own damage, is attracted.”

Read the full text of the provision here

Why will lack of scientific material not disable the insurer from establishing a case for exclusion?

If prosecution has not filed a case under Section 185, that would not mean that a competent Forum in an action alleging deficiency of service, under the Consumer Protection Act, is disabled from finding that the vehicle was being driven by the person under the influence of the alcohol.

“The presence of alcohol in excess of 30 mg per 100 ml. of blood is not an indispensable requirement to enable an Insurer to successfully invoke the clause. What is required to be proved is driving by a person under the influence of the alcohol. Drunken driving, a criminal offence, under Section 185 along with its objective criteria of the alcohol-blood level, is not the only way to prove that the person was under the influence of alcohol. If the Breath Analyser or any other test is not performed for any reason, the Insurer cannot be barred from proving his case otherwise.”

Further, should the Insurer fail to establish a case in terms of Section 185 BAL (Blood Analyser Test), it would fail, may not be the proper approach to the issue.

“It is not difficult to contemplate that the accident may take place with the driver being under the influence of alcohol and neither the Breath Test nor the laboratory test is done. A driver after the accident, may run away. A test may never be performed. However, there may be evidence available which may indicate that the vehicle in question was being driven at the time of the accident by a person under the influence of alcohol.”

Hence, in such circumstances, it cannot then be said that merely because there is no test performed, the Insurer would be deprived of its right to establish a case which is well within its rights under the contract.

[IFFCO TOKIO GENERAL INSURANCE COMPANY LTD. v. Pearl Beverages, 2021 SCC OnLine SC 309, decided on 12.04.2021]

*Judgment by Justice KM Joseph

For appellant: Advocate Shivam Singh

For respondent: Senior Advocate Gopal Sankarnarayanan

Case BriefsForeign Courts

Supreme Court of Minnesota: While deciding instant matter wherein the Court had to determine whether the appellant committed a third-degree criminal sexual conduct; i.e. sexual penetration with another person when the actor knows or has reason to know that the complainant is ‘mentally incapacitated’; Justice Paul Thissen held that the legislative definition of ‘mentally incapacitated’ as stated in Minn. Stat. Section 609.341, sub-division 7 (2020), does not include a person who is voluntarily intoxicated by alcohol.


 J.S. was intoxicated after drinking alcohol and taking prescription narcotics. She went to a bar with a friend but was denied entry due to her intoxication. The appellant Francios Momolu Khalil approached J.S. outside of the bar and invited her to accompany him to a supposed party at a house. After arriving at the house, J.S. passed out and woke up to find Khalil penetrating her vagina with his penis. J.S. contacted the Minneapolis police department to report the incident. Upon conducting an investigation Khalil was charged with one count of third-degree criminal sexual conduct involving a mentally incapacitated or physically helpless complainant.

The District Court jury sought to clarify whether it was sufficient that J.S. voluntarily consumed the alcohol or whether Khalil or another person had to have administered the alcohol to J.S. without her agreement for her to qualify as mentally incapacitated. Upon perusal and interpretation of the relevant law, the jury found Khalil to be guilty of third degree criminal sexual conduct.

Minn. Stat. Section 609.341, sub-division 7 (2020) provides that ‘mentally incapacitated’ means that a person under the influence of alcohol, a narcotic, anesthetic, or any other substance, administered to that person, without the person’s agreement, lacks the judgment to give a reasoned consent to sexual contact or sexual penetration.

The issue before the Court was regarding the proper interpretation of ‘mentally incapacitated’ and whether “administered to that person without the person’s agreement” includes that a person can be mentally incapacitated under the statute when such person voluntarily ingests alcohol, or whether the alcohol must be administered to the person without his or her agreement.


The State contended that ‘mentally incapacitated’ means that a person under the influence of alcohol, however, consumed, lacks the judgment to give a reasoned consent to sexual contact or sexual penetration.

The State also asserted that Khalil’s reading of the statute is incorrect because people normally do not speak of “administering” alcohol in everyday speech. It is not uncommon, however, for the word “administer” to be paired with the word “alcohol” in the context of criminal sexual conduct statutes.

The State further argued that the word “any” in the phrase “any other substance” breaks the link between the qualifier “administered to that person without the person’s agreement” and the nouns alcohol, narcotic, and anesthetic. 

Per contra, the appellant argued that ‘mentally incapacitated’ means that a person under the influence of alcohol, administered to that person without the person’s agreement, lacks the judgment to give a reasoned consent to sexual contact or sexual penetration.


The Court’s analysis centered on the principles vis-à-vis interpretation of statutes. The Court observed that the issue regarding interpretation of Minn. Stat. Section 609.341, sub-division  7 (2020) has arisen only because of the District Court’s instruction to the jury to interpret ‘mentally incapacitated’. The Court stated that, “Although district courts enjoy “considerable latitude in selecting jury instructions,” the instructions “must fairly and adequately explain the law of the case and not materially misstate the law”.

It was observed that the purposes of statutory interpretation is to “ascertain and effectuate the intention of the legislature” and to reflect a structural understanding that legislators are the elected representatives of the people and legislative bodies are institutionally better positioned than courts to sort out conflicting interests and information surrounding complex public policy issues.

The Court noted that the text, structure, and punctuation of the Legislature’s one-sentence definition of ‘mentally incapacitated’ supports the appellant’s interpretation, namely that-  a person is mentally incapacitated only if under the influence of alcohol administered to the person without the person’s agreement.The sentence is structured as an easily digestible series of similar nouns that describe intoxicating substances (alcohol, narcotic, anesthetic, or any other substance) followed by a qualifier (“administered to that person without the person’s agreement”) that sensibly applies to each noun”.

The Court noted that it takes modest mental energy “to process the individual nouns in the list present in the definition of mentally incapacitated, making it easy to apply the qualifier across them all”.

The Court pointed out that it was non convinced with the State’s interpretation that the phrase “administered to that person without the person’s agreement” should not be read to apply to alcohol – “Significant flaw in this argument is that the State plucks the single word “administered” out of the context of the entire phrase ‘administered to that person without the person’s agreement’”. The State erred in isolating the word ‘administered’ from the rest of the qualifier which is also demonstrated when one considers the other nouns in the series to which the qualifier applies. “Thus, the State’s narrow focus on the purported linguistic ill fit between the words alcohol and administered does not logically support the ultimate conclusion that the State asks us to reach”.

The Court stated that the appellant offered “the more reasonable explanation for the inclusion of the word “any” in “any other substance” by arguing that the Legislature intended to capture all substances, the consumption of which could deprive a person of judgment to give a reasoned consent”.

 The Court pointed out that The State simply assumes that a person may become mentally incapacitated (as defined by the Legislature in Section 609.341, sub-division 7) by voluntarily consuming alcohol. “The State’s argument that the Legislature must have intended felony classification for sexual penetration with a complainant who lacks the judgment to give a reasoned consent due to voluntary intoxication does not withstand scrutiny in light of the statutes’ structural complexity (five degrees of crime) and the differentiated punishments imposed for various types of nonconsensual sexual penetration and sexual contact”.


Upon detailed perusal, the Court concluded that the legislative definition of ‘mentally incapacitated’ is unambiguous and clearly means that substances (including alcohol) which cause a person to lack judgment to give a reasoned consent must be administered to the person without the person’s agreement. Therefore, Section 609.341, sub-division 7 means that, a person under the influence of alcohol is not mentally incapacitated unless the alcohol was administered to the person under its influence without that person’s agreement.

With this conclusion, the Minnesota SC also reversed the decision of the District Court which found Khalil guilty. The case was remanded to the District Court for a new trial.  [State of Minnesota v. Francios Momolu Khalil, A19-1281, decided on 24-03-2021]

Sucheta Sarkar, Editorial Assistant has reported this brief.

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Gauhati High Court
Case BriefsHigh Courts

Gauhati High Court: A Bench of Achintya Malla Bujor Barua and Mir Alfaz Ali, JJ., modified a conviction for murder to that of conviction for culpable homicide not amounting to murder in light of the convict’s inebriated condition at the time of the commission of offence and his subsequent conduct.

The appellant was convicted under Section 302 IPC for the murder of the deceased (his sister-in-law). He backed her with a dao from behind. It clearly came out from the record that at the time of the commission of offence, the appellant was in an intoxicated condition. Also, after the incident, he brought a vehicle and took the injured (now deceased) to hospital.

The High Court noted that after inflicting the injury, the appellant thought about providing treatment to the deceased. It was noted, “there are materials to show that the accused was in an inebriated condition and the incident took place at the spur of the moment and immediately after the incident took place, it was the accused, who himself went out to bring a vehicle and took the deceased to the hospital…” Relying on the Supreme Court decisions in Deepak v. State of U.P.,(2018) 8 SCC 228 and Kalu Ram v. State of Rajasthan, (2000) 10 SCC 324, the High Court found similarity in the present circumstances and converted the appellant’s conviction from that under Section 302 to one under Section 304 Part II IPC. Further, in view of the period of imprisonment already undergone by him, the appellant was directed to be released forthwith if not required in any other offence. [Nara Kanta Dutta v. State of Assam, 2019 SCC OnLine Gau 1671, dated 02-04-2019]