FACTS IN BRIEF:- T his writ petition was filed by Sakshi, a woman organization, in the Apex Court to issue a writ declaring that “sexual intercourse” as contained in Section 375 of the Indian Penal Code (IPC) included all forms of penetration such as penile/vaginal penetration, penile/oral penetration, penile/anal penetration, finger/vaginal and finger/anal penetration and object/vaginal penetration and for issue of a direction for registration of all such cases to be falling under Sections 375, 376 and 376A, 376D of the IPC.
ARGUMENTS:- It was contended by the petitioner organization that the existing trend of respondent authorities to treat sexual violence, other than penile/vaginal petitioner as lesser offences falling under either Section 377 or 354 IPC and not as a sexual violence under Section 375/376 IPC was without any justification. It was also submitted that limiting understanding of “rape” to abuse by penile/vaginal penetration only, was contrary to contemporary understanding of sexual abuse law as it denied majority of women and children access to adequate redress in violation of Article 14 and 21. It was contended that registration of cases of sexual violence as cases of moral turpitude under Section 377 by respondent authorities was without any justification as these cases would otherwise fall within scope and ambit of Section 375/376.
JUDGMENT:- The Supreme Court concluded that although Sections 354, 375 and 377 of the IPC had come up for consideration before superior courts of the country on innumerable occasions, the wide definition which petitioner wants to be given to "rape" as defined in Section 375 IPC so that the same may become an offence punishable under Section 376 IPC had neither been considered nor accepted by any Court in India so far. The Court observed that prosecution of an accused for an offence under Section 376 IPC on radically enlarged meaning of Section 375 IPC would violate the guarantee enshrined in Article 20(1) which states 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, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence.
Therefore the Apex Court held that an exercise to alter the definition of rape, as contained in Section 375 IPC, by a process of judicial interpretation, and that too when there was no ambiguity in the provisions of the enactment was bound to result in good deal of chaos and confusion, and would not be in the interest of society at large.
Upon the aspect of the petition seeking directions to be issued to the government and the police to ensure protection of a victim of sexual abuse at time of recording his statement in Court, the court noted that since Section 273 of the Code of Criminal Procedure (Cr.P.C.) merely required evidence to be taken in the presence of the accused and did not require that the evidence should be recorded in such a manner that accused should have full view of the victim or the witnesses, directions were issued that provisions of Sub-section (2) of Section 327 Cr.P.C. would in addition to the offences mentioned in the sub-section and would also apply to inquiry or trial of offences under Sections 354 and 377 of the IPC. Herein the Court also took note of State of Maharashtra v. Dr. Praful B Desai ( 2003) 4 SCC 601, wherein recording of evidence by way of video conferencing vis-Ã -vis Section 273 Cr.P.C. was held to be permissible and State of Punjab v. Gurmit Singh ( 1996) 2 SCC 384 wherein directions were given to hold trial of rape cases in camera and that trial to be conducted by lady judges wherever available so that prosecutrix can make statement with greater ease.
FOR COMMON MAN:- Dismissing the petition, the Court showed its inability to extend the statutory definition of ‘rape’ as provided for under the Indian Penal Code (Section 375) holding that it was only within the competence of the legislature to extend the definition. The Court’s observation that it would not be in the larger interest of the State or the people to alter the definition of ‘rape’ as contained in Section 375 IPC by a process of judicial interpretation also shows the concern of the Court in maintaining national peace and tranquility.
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