MUMBAI: Retired Bombay high court Judge V M Kanade has called for a revamp in criminal law for the handling of certain types of rape cases. He has supported the principle of anonymity for accused, along with measures against immediate or mechanical arrests. His stand is significant given his longstanding reputation in the judiciary as a champion of women’s rights as evidenced by significant judgments he delivered until his retirement in 2017.In an exclusive interview to TOI about what ails society specifically in relation to misuse of rape laws, the eminent judge said on Sunday, “It is perhaps time to effect a change in law or to clarify the existing position in respect of procedure followed in rape accusations that are made essentially on the premise that there has been a breach of promise to marry, promise on which consent to get into a physical relationship was granted.” But, he said, “Let one thing be immediately clear. I am speaking only of cases which are either filed after a substantial delay or after a relationship which may be on and off has ended sourly, often involving an allegation that consent… was given on promise of marriage.”In a bold suggestion, Justice Kanade said, “In such types of cases, the Supreme Court’s judgment in the Lalita Kumari matter perhaps needs to be revisited. The judgment says once police are informed of a cognizable offence, they are bound to register an FIR and have no other option. But when it comes to certain complaints of rape, either after substantial delay or in the case of a relationship which ended with complaint of consent under promise of marriage, it may merit a preliminary enquiry by the police to verify. This would be as is sought in cases of cruelty to wife under Section 498A of the Indian Penal Code (IPC) where the SC accepted possibility of abuse and directed that police first verify.”Read also: #MenToo: The gender pushback, now from menWhat should be done to ensure that the police are not hasty in making arrests that can never be undone, even in cases which high courts have described as cases of vendetta? “I think the police ought not to rush into an arrest. They should investigate before effecting any arrest since the power to do so under Section 41 of the IPC is not to be exercised mandatorily in every case,” said the retired judge. “Arrest is not mandatory unless there is no consent. This procedure of naming the accused in such cases where there has been a relationship for some time which either ended sourly or there was a break in the physical relationship, and it is alleged that therefore it is a case of rape as defined under Section 375 and 376 of the IPC, must change,” said Justice Kanade, who retired in 2017 and was briefly the acting Chief Justice of the Bombay high court.Among the high points of the judge’s career were orders to make Mumbai and Maharashtra safer for women against the backdrop of an increase in molestation cases. In December 2016, recognising the dangers of travel after the “graveyard shift” for solo women, he directed the state to enumerate steps for their safe commute. Another important judgement was his death sentence for the accused in a Pune rape-murder case; his order was upheld by the SC. Also, his bench in 2016 made way for women to enter the sanctum sanctorum of the Haji Ali Dargah .Justice Kanade said as a “matured society” a debate was in order. “When something goes wrong, using Section 376 to settle any score or even in anger over a break-up or rejection is unfair and in such a limited band of cases you need to protect the anonymity of the accused too.” The issue, he said, is primarily with an increase in the number of cases where the woman has given consent which she alleges cannot be counted as voluntary on grounds of a promise of marriage. “There are several judgments of this being a trend. Why not give anonymity to the accused till a charge is framed or till he is convicted? In the last two decades there has been a spate of such allegations. High courts and the apex court have had to decide such cases, concluding that a mere breach of promise to marry or a misrepresentation cannot be defined as rape,” he said.“The courts have made a distinction between breach of promise and cases of fraud where from the inception a man never intended to marry and may have taken several women for a ride.” Speaking of his experience as an HC judge, he said, “As a judge dealing with pleas for the quashing of such complaints, I found that very often the complainant supports the quashing of the plea or she herself comes as a petitioner for withdrawing her complaint. In a third category, she comes with consent for quashing, the quashing consent saying it was ‘due to a misunderstanding’ or ‘misconception’. The issue is serious and calls for debate and study.”Read also: Karan Oberoi files for bail, submits texts as proof of consent