Bombay High Court refuses to quash case against gay man

  • Kanchan Chaudhari, Hindustan Times, Mumbai
  • Updated: Jun 30, 2016 00:22 IST

It cannot be said that the offence under section 377 of the Indian Penal Code is not an offence against society, said the Bombay high court on Wednesday, while rejecting a plea filed by a 33-year-old Navi Mumbai resident. The plea sought to quash criminal proceedings against him for allegedly having unnatural sex with a 27-year-old man from the same locality.

Section 377 criminalises sexual activities “against the order of nature”, arguably including homosexual acts.

A division bench of justice Abhay Oka and justice Amjad Sayed said it cannot be said it is not an offence against society, especially after the Supreme Court upheld the validity of the penal section.

The married petitioner, however, sought criminal proceedings be quashed on the ground that he had amicably settled the matter with the “victim”.

On September 11, 2013, the Koparkhairane police station registered a first information report (FIR) against him under section 377 of the Indian Penal Code for having unnatural sex with a neighbour. The FIR was registered against the 33-year-old after his wife approached the high court. She was compelled to do so after no action was taking by the police even after lodging complaints with the Koparkhairane police and the Wagle Estate police in Thane.

The complainant stated she had noticed some papers in her house, which mentioned the name of her husband’s partner and soon found out about the nature of their relationship.

Although the Koparkhairane police completed their investigation and filed a charge-sheet against the 33-year-old, he approached the high court seeking quashing of the proceedings on the strength of purported settlement with the “victim.” He had also annexed an affidavit of his 27-year-old partner stating there was an amicable settlement between them over the issue.

The court rejected the petition noting it was not bound to accept and exercise its discretionary power merely on the basis of a bald statement of the “victim” about having entered into a settlement. The judges noted the affidavit of the victim was vague and without any particulars of such a settlement.

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