Date of Judgement:
23rd March 2022
Coram/judge:
Hon'ble Mr. Justice M. Nagaprasanna
Parties to the Case:
Petitioner - Hrishikesh Sahoo
Respondents- State of Karnataka & Ors.
Legal Provisions
- Section 376 of the Indian Penal Code, 1860 – which lays down punishment for kidnapping, abducting or inducing a woman to compel her marriage, etc.
- Section 377 of the Indian Penal Code, 1860- which lays down the punishment for unnatural offences.
- Section 506 of the Indian Penal Code, 1860- which deals with punishment for criminal intimidation.
- Section 498A of the Indian Penal Code, 1860- punishment for cruelty to women.
- Section 6 of POCSO act- lays down punishment for aggravated penetrative sexual assault
- Article 14 of the constitution – it lays down a fundamental right concerning equality before law
- Article 15 – it prohibits any discrimination based on religion, caste, race, sex or place of birth
- Article 16 – which mandates equality of opportunity in matters of public employment;
- Article 21- which depicts protection of life and personal liberty to all the citizens of the nation
Overview
- The accused was married to the complainant. After a few years of marriage, the relationship between the couple deteriorated. Many instances of physical and mental torture to the wife and the child led to the complainant wife registering a complaint against the husband on 21.03.2017 under relevant section of IPC and POCSO act.
- On filing of the charge sheet, the Special Court framed charges against the petitioner, for offences punishable under Sections 376, 498A and 506 of IPC and Section 5 & 6 of the POCSO Act.
Arguments Advanced by The Appellant
- The Learned Counsel for the appellant contended that the presumption under Sections 29 and 30 of the POCSO Act is unconstitutional as it imposes a reverse burden of proving innocence on the presumption that the accused is a woman.
- It was further contended that FIR did not contain the offence alleged against the petitioner Section 376 of the IPC. FIR that was registered was for offence punishable under Section 377 of the IPC while the police filed their final report/charge sheet invoking Section 376 and the learned Sessions Judge took cognizance of the offence.
- It was submitted that there was no basis to frame the charge under POCSO Act as there was no medical evidence to prove the commission of any of those offences under those sections.
- The complainant had in fact extra marital affairs which led to all the problems between the couple. There is no instance that would touch upon the offence punishable under Section 498A of IPC.
- It was further submitted that the Offences under IPC and POCSO were definite and Courts jurisdiction to try these offences being distinct, both cannot be tried in the same Court which is now being tried. The Special Court was to try the offences under the POCSO Act.
Arguments Advanced by the respondents
- The Learned Assistant Solicitor General refuted these contentions and placed reliance upon several judgments to contended that the challenge to the presumption has been considered and rejected by the Apex Court and this Court in several judgments. Hence, such prayer would not be tenable.
- Learned counsel for the respondent submitted that the allegations were based on what was noticed in the complaint or subsequent communications of both the mother and daughter.
- The petitioner was a beast in the form of a man and should not be shown any indulgence at the hands of this Court and the trial should be permitted to commence. The petitioner had been delaying the Court’s proceeding on a number of occasions and had not allowed the trial to commence.
- He submitted that the learned Sessions Judge had rightly taken cognizance of the offence punishable under Section 376 of the IPC as the facts clearly revealed that the petitioner had sex with the complainant torturing and abusing her against her consent and forcibly had his lust fulfilled.
- In the peculiar facts of this case though exception to Section 375 protects the husband such protection should not be given in the case at hand. He would submit that the writ petition should be dismissed And the Sessions Court has erred in not acceding for addition of a charge to include offences punishable under Section 377 of IPC against the petitioner.
Issue
- Whether cognizance taken against the husband for offence punishable under Section 376 of IPC was valid?
- Whether the prosecution, despite the presumption under Sections 29 and 30 of POCSO act, has to prove the foundational facts beyond all reasonable doubt?
- Whether the Court to try the offences under the Act has jurisdiction to try both the offences under the IPC and POCSO act?
- Whether the charge sheet against the petitioner should be altered to include addition of the offence punishable under Section 377 of IPC?
- Whether proceedings under the POCSO Act against the petitioner needs to be interfered with?
Judgement Analysis
- The charge sheet filed by the Police depicted a detail of the demonic lust of accused, who even according to the investigation has had unnatural sex. Every time he was torturing or abusing the wife, or threatening to beat the daughter or beating the daughter, all for satisfaction of the gory carnal lust.
- The learned Judge observed that the Constitution, a source of all statutes, depicts equality. IPC practiced discrimination. Under IPC every other man indulging in offences against women is punished for those offences. But in section 375 an exemption is laid. This expression was not progressive but regressive, a woman is treated as a subordinate to the husband.
- The contents of the complaint clearly put forward tolerance of the wife of the brutal acts of the accused. The learned Sessions Judge made an appropriate decision in taking cognizance of the offences punishable under Section 376 of IPC and charging the accused. Exemptions in law cannot be of absolute nature and provide for commission of crime against society.
- Offence of rape was clearly attracted in the complaint. The allegation would be punishable under Section 376 of IPC if those were against some other person other than the petitioner. So, the charge under Section 376 of the IPC and also rejecting the application to drop the said charge was tenable. It was held in favour of the prosecution and against the petitioner.
- The offences punishable under Sections 498A, 375, 354 and 506 of the IPC were all clearly made out in the complaint, in the statements recorded during the investigation and the charge sheet. There were various disputed questions of fact that had to be dealt with only in a full-fledged trial. If the petitioner has anything in his defence on the allegations, it is for him to put it up before the Sessions Court. The Court refused to interfere in this regard.
- With regard to presumption under Sections 29 and 30 of POCSO Act, the prosecution would prove foundational facts beyond all reasonable doubt. The issue has time and again cropped up before the Apex Court or this Court in several cases.
- It was held that the prosecution has to prove the foundational facts beyond all reasonable doubt and could not rest its case on probability, merely because the statute imposes reverse burden. In place of the prosecution proving the guilt, the accused was to prove innocence.
- The submission that two different courts should be trying the alleged offences were not acceptable in the peculiar facts of this case. The mother and the child both were victims of brutal acts on the part of the petitioner. It was the mother who had complained on behalf of both herself and the daughter. Both the cases were triable only by the Sessions Court and the Judge who was now to try both the cases would be the Sessions Judge.
- The prosecution did file an application under Section 216 of the CrPC to include the charge, of and for offence punishable under Section 377 of the IPC. The primary reason rendered by the Sessions Judge is that the complainant was not a stranger to the accused.
- The finding that when the allegations made against the husband, The allegations clearly make out an offence punishable under Section 377 of the Code. Therefore, the order under challenge was to be set aside allowing the application filed by the prosecution with a direction to the trial Court to frame the charge for the offence punishable under Section 377 of the IPC as well.
- With regard to interference with proceedings against the under POCSO act, it was unmistakably noticeable that the actions of the petitioner touch upon offences under the Act. It was held that even for the offences under the Act a full-fledged trial was necessary in the facts and circumstances of the case.
Conclusion
The Honourable High Court while construing the provisions under IPC and POCSO act in light of the Constitution of India deposing the petition in favour of the respondents. While denying the exemption of Marital rape, it was observed that the Court did not pronounce validity of such exemption in law. The legislature was to decide on this, after analysis of manifold circumstances. the Court adjudicated upon the charge of rape being framed upon the husband alleging rape on his wife in the present circumstances
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