Prosecution Under Aadhaar Act 2016 For An Act Committed In 2014 Is Legally Untenable: Calcutta High Court

The High Court was considering a revisional application, filed by the applicant under Section 482 of the Code of Criminal Procedure, 1973 (Cr.P.C.), seeking the extraordinary relief of quashing a First Information Report (FIR) formally arraigned for alleged contraventions of Sections 419, 420, and 468 of the Indian Penal Code 1860 (IPC), Sections 34, 35, and 42 of the Aadhaar (Targeted Delivery of Financial and other Subsidies, Benefits and Services) Act, 2016 (Aadhaar Act, 2016), and Sections 66C and 66D of the Information Technology Act, 2000 (IT Act, 2000).

The Single Bench of Justice Uday Kumar said, “The State's argument, attempting to circumvent this constitutional protection by contending that the "detection" of the fraudulent act occurred in 2016, is legally unsound. The critical factor for determining the applicability of a penal statute is unequivocally the date of the alleged offense, not the date of its discovery or detection. To accept the State's proposition would be to erode the constitutional safeguard against retrospective criminalization. Therefore, this Court concludes that the prosecution of the petitioner under the Aadhaar Act, 2016, for an act committed in 2014, is legally untenable and an impermissible retrospective application of law. The charges under Sections 34, 35, and 42 of the Aadhaar Act, 2016, are consequently unsustainable.”

Advocate Satatup Purakayastha represented the Petitioner, while PP Debasish Roy represented the Respondents.

Factual Background

It was alleged that the petitioner, Dulal Kumbhakar, engaged in impersonation by ‘willfully allowing his fingerprints to be used for the generation of an Aadhaar identity of another person’ identified as his brother, Subal Kumbhakar. This alleged act occurred on February 16, 2014. It was further claimed that the petitioner subsequently attempted to fraudulently update the demographic particulars of this Aadhaar. Following the investigation, a charge sheet was submitted. The petitioner asserted the absence of his criminal intent by stating that on the alleged date of the incident, while he was assisting his physically disabled brother, at a crowded Aadhaar enrollment center, his fingerprints were inadvertently captured twice due to the negligence of the staff which led to his biometrics being erroneously registered against his brother's Aadhaar enrollment, while his subsequent enrollment failed.

He filed a Writ Petition in 2018 against the UIDAI, due to which his correct Aadhaar number could finally be generated by cancellation of the erroneously generated Aadhaar in his brother's name. Procedurally, the petitioner acknowledged filing a discharge application before the Trial Court, before initiating the present revisional application. He explained this sequence as a direct consequence of the unforeseen challenges posed by the global COVID-19 pandemic, which brought normal court proceedings to a standstill. Faced with incessant adjournments, the petitioner contended he was compelled by exigent circumstances to seek a more expeditious remedy from this higher forum.

Reasoning

Explaining the law relating to section 482 of the CrPC, the Bench observed that this provision vests in the High Court extraordinary jurisdiction to make such orders as may be necessary to give effect to any order under the Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. This power, while vast, is to be exercised sparingly, cautiously, and with utmost circumspection.

The Bench further observed, “Addressing the first pivotal legal question concerns the applicability of the Aadhaar Act, 2016, to an act committed before its enactment, is deeply embedded in constitutional guarantees, dictates that penal statutes operate prospectively, as is encapsulated in the Latin maxim lex prospicit non respicit (the law looks forward, not backward), which serves as a paramount safeguard against arbitrary criminalization. The constitution enshrined these fundamental principles in Article 20(1) of the Constitution of India, which dictates that "no person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence." This constitutional safeguard prohibits ex post facto laws, ensuring that an individual is prosecuted only for actions that constituted an offense at the time of their commission.”

“The alleged act of fraudulent fingerprint usage in this case unequivocally occurred on February 16, 2014. Conversely, the penal provisions of the Aadhaar Act, 2016, specifically Sections 34, 35, and 42, upon which the prosecution relies, came into effect only on September 12, 2016. Upon a thorough examination of the Aadhaar Act, 2016, I found no express provision within its text stipulating its retrospective application. In the absence of such an explicit legislative mandate, criminalizing an act that was not an offense under the specific statute at the time of its commission would directly contravene Article 20(1) of the Constitution”, it added.

The Bench further held that there was an absence of criminal mens rea for any of the alleged offenses. The consistent and proactive efforts made by the petitioner since 2015 to rectify the Aadhaar anomaly—submitting numerous complaints, making repeated enrollment attempts, and ultimately filing a writ petition against the UIDAI—were antithetical to the conduct of an individual with fraudulent intent. Given the substantial legal infirmities in the prosecution's case (impermissible retrospective application of law, absence of mens rea, lack of essential ingredients for the alleged offenses), the Bench found that the procedural lapse was sufficiently explained by the petitioner and did not override the compelling need to prevent a clear abuse of process. As per the Bench, the continuation of criminal proceedings against the petitioner amounted to a manifest abuse of the process of law.

“The charges under the Aadhaar Act are legally unsustainable due to their impermissible retrospective application. The charges under the IPC and IT Act lack the fundamental ingredient of criminal mens rea, which is conspicuously negated by the petitioner's consistent and diligent efforts to rectify the inadvertent error. The factual narrative, corroborated in part by the UIDAI's own admissions, points towards an operational anomaly rather than a deliberate criminal act. Subjecting the petitioner to the rigors and stigma of a criminal trial, when the very foundational elements of the alleged offenses are absent and the initial act appears to be an innocent mix-up diligently sought to be rectified, would cause grave injustice”, it stated.

“Penal statutes operate prospectively unless expressly stated otherwise, and prosecuting an act committed before the enactment of a penal statute violates Article 20(1) of the Constitution of India. The date of the alleged offense, not its detection, is paramount for the applicability of criminal law”, the Bench held while further adding, “While disclosure is paramount, a procedural lapse, such as non-disclosure of a prior discharge application, may not be an absolute bar to exercising inherent powers under Section 482 Cr.P.C. if exceptional circumstances (e.g., global pandemic) are credibly explained and there are substantive grounds for quashing the proceedings on merits.”

Thus, allowing the Revision, the Bench quashed the impugned FIR.

Cause Title: Dulal Kumbhakar v. State of West Bengal & Anr. (Case No.: C.R.R. 1739 of 2022)

Appearance

Applicant: Advocates Satatup Purakayastha, Abhishek Chakraborty, Jagriti Bhattacharya

Respondents: PP Debasish Roy, Advocates Bitasok Banerj, Arun Kumar Maiti (Mohanty), Jasojeet Mukherjee, R. R. Mohanty

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