CASE COMMENT ON BROTHER JOHN ANTONY v. STATE

Surabhi Singhi,
IV Semester, National Law University, Jodhpur

Introduction

Section 377 punishes unnatural carnal intercourse. This section, as the title suggests, refers to sexual intercourse, which were considered unnatural more than 100 years ago. The term carnal intercourse refers to sexual intercourse between two males. Since penetration is an essential ingredient, it does not take into account lesbianism. In India this section more or less deals with sodomy laws.

These laws are laws which makes certain sexual acts into sex crimes. The term unnatural sexual offence has in the past been used to refer to any deviant sexual act, often deemed so because such does not lead to procreation. It is believed that these laws originated from cultural and religious beliefs as a result of the health complications associated with it.

For a complete understanding this section, it is important to be informed about the fact that there is a growth in the gay and lesbian rights movements the world over. Many countries have now repealed these laws.

Speaking about these laws in India, it is said that "This is not some new trend; people don't become homosexual just to be part of some trend. It is only coming to light now because an old safety network has disappeared with the breakdown of the joint family."

Thus as has already been stated to constitute an offence under this section it is necessary to first constitute penetration. The section nowhere mentions what is the meaning of penetration for the purposes of this section. Thus what is to be determined is whether there was sufficient penetration either in its strictest meaning or broader interpretation. This was the main point in the case of Brother John Antony v. State 1992 CrLJ 1351 (Mad), which is analysed, in the following pages. Evidence on Record

The petitioner is the Sub-Warden of the Boarding Home attached to St. Mary's Higher Secondary School, Tuticorin. During the period from September 1986 to 16th February 1987, an impression was gaining momentum in the said School that he voluntarily had carnal intercourse against the orders of nature with the inmates of the Boarding Home.

One M. Mohan was studying in the VIX Standard in the School. He was an inmate of the Boarding Home. His brother is by name M. Thiagarajan. He was stated to have informed his brother about the perverted sexual assaults of the Sub-Warden on the inmates of the Home, inclusive of himself.

Consequently, on 21-2-1987 the said Thiagarajan lodged a report before the Sub-Inspector of Police Tuticorin South Police Station - the respondent herein about such illegal activities being committed. He further revealed in the report that despite complaints having been made to all concerned in the administration of the institution, no action was taken against he culprits.

On receipt of the report, the respondent registered the case for an alleged offence under section 377, I.P.C. against the petitioner and took up further investigation. During the course of investigation, the sexual perverted acts of the petitioner on certain inmates of the Boarding Home came to light. After completing the formalities of the investigation, he laid three reports under section 173(2) of the Code of Criminal Procedure, 1973 Earlier proceedings

1. On receipt of process, the petitioner came forward with the present actions, invoking the inherent jurisdiction of this Court to quash the criminal proceedings initiated against him in those three cases.

2. He also contended that by no stretch of imagination, the acts stated would fall within the four corners of Section 377, IPC, if a proper construction of interpretation of the various words used in describing the offence under that section is made.

3. Sub-Divisional Judicial Magistrate, Tuticorin however rejected such a submission. High Court proceedings

The petition being rejected by the Sub-Divisional Judicial Magistrate, the petitioner has moved to the High Court of Madras with a Criminal petition. Contentions of the petitioner

1. The alleged acts of his may not amount to an offence under Section 377, IPC as there was no penetration of the male organ of the petitioner in any of the orifice of the victim boys, such as anus or mouth.

2. The counsel for the petitioner placed reliance on the various principles of Justice G.P.Singh, Principles of Statutory Interpretation of statutes: which have been used in the case of Bengal Immunity Co.'s Bengal Immunity Co., Ltd. v. State of Bihar, MANU/SC/0083/1955
a. It is a well-established canon of interpretation of statutes that a penal provision of law must be strictly construed and that no act should be penalized unless it clearly falls within the ambit of the penal provision.
b. An explanation is at times appended to a section to explain the meaning of words contained in the section. It becomes a part and parcel of the enactment. The meaning to be given to an 'Explanation' must depend upon its terms, and 'no theory of its purpose can be entertained unless it is to be inferred from the language used.

Thus through this they contended that penetration must be in its strictest sense and as there was no penetration and no seminal discharge to constitute sexual intercourse no offence under section 377 of the IPC, 1860 can be made out. .

Contentions Of The Respondent

1. The counsel for the respondent argued that the sexual intercourse is only meant for the purpose of conception is an out-dated theory. They contended that intercourse is defined as mutual frequent action by members of independent organisation. There is the temporary visitation of the organism by a member of the other organisation, for certain clearly defined and limited objects. There was an entry of male penis in the orifice of the mouth of the victim. There was the enveloping of a visiting member by the visited organism and hence there was intercourse in the present case.

2. They also contended that, it could be said without any hesitation that the orifice of mouth is not according to nature meant for sexual or carnal intercourse because the natural object or carnal intercourse is that there should be the possibility of conception of human beings, which in the case of coitus per mouth is impossible.

3. They pointed out that what was sought to be conveyed by the explanation was that even mere penetration would be sufficient to constitute carnal intercourse, necessary to the offence referred to in Section 377. Seminal discharge, i.e., the full act of intercourse was not the essential ingredient to constitute an offence in question.

4. They placed reliance on the dictionary meaning of penetration, which is :

a. To enter within
b. To make its (or one's) way into or through something or
c. To some point or place implying remoteness or difficulty of access

Hence contended that there need not necessarily be penetration into the anus or vagina and the broader meaning of penetration should be considered and should not be construed in its narrow sense.

Legislative opinion

The question that arises for consideration now and again is as to whether Section 377 of the Indian Penal Code, 1860 describing 'UNNATURAL OFFENCES' would take, in its fold and sweep and amplitude all the sexual perverse acts. This has to be examined with reference to the language of Section 377, IPC, which de hors the Explanation appended to it consists of the following ingredients: -

(1) A person accused of this offence had carnal intercourse with man, woman or animal;

(2) Such intercourse was against the order of nature; and

(3) Such act by the person accused of the offence was done voluntarily.

The main question to be considered with respect to this section is whether there was any sort of carnal intercourse. To explain carnal intercourse the explanation appended assumes significant importance. Thus to prove carnal intercourse it is sufficient to prove that there was penetration in the slightest of forms.

The main contentions of the petitioner and the respondent also harp around the said ingredients.

Judicial opinion

The main point of determination on which the various judicial opinions has to be examined is what exactly constitutes penetration and whether there can be penetration in the present case.

The courts in India from a very long time, i.e. can be said from the case of Khanu v. Emperor, AIR 1925 Sind 286 held that coitus per mouth is penetration for the purpose of Section 377,IPC and hence is an unnatural offence. Thus insertion of the penis into the mouth and not the anus or vagina is also penetration for the purpose of this section.

This view may sound inconvincible as is an old case but invariably the courts all along, time and again when this question has come before them held that the word penetration needs to given a broader outlook and not merely the routine meaning.

In yet another case of Lohana Vasantlal Devchand v. The State, AIR 1963 Guj 252 there were three accused. Accused 1 and 2 had already committed the offence, in question, which was carnal intercourse per anus, of the victim boy. The boy began to get a lot of pain and consequently, accused 2 could not succeed having that act. He therefore voluntarily did the act in question by putting his male organ in the mouth of the boy and there was also seminal discharge and the boy had to vomit it out. The question that arose for consideration therein was as to whether the insertion of the male organ by the second accused into the orifice of the mouth of the boy amounted to an offence under section 377, IPC. It was held that the act was the actual replacement of desire of coitus and would amount to an offence punishable under section 377. Hence the point that putting the penis into the mouth of the victim clearly constitutes an offence under Section 377 and can be said to be a settled matter.

To clarify the point better, in the case of State of Kerala v. K. Govindan, 1969 CrLJ 818 , the question that came up for consideration was as to whether the act of committing intercourse between the things is carnal intercourse against the order of nature inserting the male organ between the thighs of another is an unnatural offence under section 377 of the Indian Penal Code. The Kerala High Court Judge held that putting male organ into victim's any body part, which was an initiative act of sexual intercourse for the purpose of his satisfying the sexual appetite, would be an act punishable under Section 377, IPC.

This view is taken by the courts in decisions prior to the given case as has been stated above and also in the cases, which were followed. In the case of Calvin Francis v. State of Orissa's, 1992 (I) OLR 316 decided in the same year, where the father forcing the daughter to hold his penis in her hands and forcing her to masturbate was held to be an offence under section 377 of the Indian Penal Code, 1860 an important principle was laid down which would be helpful in understanding the section:
"Words used in statutory definitions of the crime of Sodomy have been frequently construed as more comprehensive and as not depending on, or limited by the common law definition of the crime, at least as not dependent on the narrower definition of sodomy afforded by some of the common law authorities and are generally interpreted to include within their provisions all acts of unnatural copulation, whether with mankind or beast"

Thus according to this principle the common law definition for the purposes of rape should not be taken for an unnatural offence and a broader perspective should be considered.

Also stating a case, which was followed by the case in question, Kishan Lal v. State of Rajasthan, 1998 CrLJ 4508(Raj.) where there was no concrete evidence to prove penetration into the anus of the boy by the accused, mere presence of semen on the shirt of the deceased boy was construed to be penetration and an offence under section 377 of the Indian Penal Code, 1860.

The Law Commission has also considered this question and recommended Changes in the Indian Penal Code, 1860 in its 172nd Law Commission Report, 2000 according to which penetration could be with the male organ into any part of the other person's body or manipulating any part of the body of another person so as to cause penetration

International stand
Australia

Section 319(1) of the Criminal Law Western Australia gives the meaning of penetration as a) to penetrate

(a) Any part of the body of another person; or an object manipulated by another person,
b) To manipulate any part of the body of another person so as to cause penetration
c) To introduce any part of the penis of a person into the mouth of another person;
d) To engage in cunnilingus or fallatio; or
e) To continue sexual penetration as defined in paragraph (a), (b), (c)

Canada

Sections 151, 152 and 153 of the Canadian Criminal Code deal with sexual offences and states clearly that if any part of the body is touched by any part of the accused's body for sexual purposes it is an offence and will be applicable to all sexual offences falling under the said sections.

Massachusetts

Massachusetts Law defines penetration as against the victim's will of a bodily orifice (vagina, anus, or mouth) by a penis or other part of the body, or by an object. Thus it is clear that for penetration it is not necessary to prove that there was penetration into the vagina or anus by the penis.

U.S.

The Washington State Law provides that, intercourse includes vaginal or anal penetration, however slight by a penis or by an object, as well as oral or genital contact.

Thus a realistic interpretation of 377 of the Penal Code should be according to the changing scenario in various other jurisdiction showing contemporary understanding of the problem and hence the scope of the word penetration should be widened.

Judgment of the present case

In the backdrop and setting of the discussions as above, the Single Judge Bench, of the Madras High Court came to the conclusion that

The alleged over acts attributed to the petitioner in all the three cases would fall under two categories, namely, -

(1) Insertion of the penis of the petitioner into the mouth of the victim boy and doing the act of in carnal intercourse up to the point of ejaculation of semen into the mouth; and
(2) Manipulation and movement of the penis of the petitioner whilst being held by the victim boys in such a way as to create an orifice like thing for making the manipulated movements of insertion and withdrawal up to the point of ejaculation of semen.

As regards the alleged act of the petitioner falling under the first category, prima facie there can be no manner of doubt whatever as to such an alleged act of his falling within the ambit of Section 377, I.P.C.

With respect to the second category, it may be recapitulated that a learned Judge of the Kerala High Court in the decision reported in State of Kerala v. K. Govindan, 1969 Cri LJ 818 held that committing of intercourse by inserting the male organ between the thighs of another is an unnatural offence punishable under section 377. IPC. The reasoning given therein by learned Judge was that when the male organ was inserted between the thighs kept together and tight, there was penetration to constitute the unnatural offence. This decision throws light that for committing an unnatural offence, it is not necessary to penetrate into the orifice of mouth or anus of another by interpreting the word 'penetrate' to mean 'find access into or through, pass through.'

The court thus in the present case held that when the sexual appetite was quenched by the ejaculation of semen into the hands of the victims, as was prima facie revealed by the statements of various victim boys the alleged over acts of the petitioner falling under the second category will also be construed to have fallen within the ambit and sweep of Section 377, IPC. As such, the learned High Court Of Madras dismissed all the petitions.

Critical analysis

The court in the present case have following the precedents laid down earlier by number of Courts have also accepted the broader meaning of penetration. This standpoint of the court is beneficial with regards to construing unnatural offences, as under this only there are various forms of sexual perversity without resulting from the penetration of the penis into the vagina or the anus. Thus it would be helpful in construing and punishing those offences which are of unnatural nature but do not involve penetration per se. But the court as failed to take notice of certain aspects of this standpoint.

Remoteness

Extreme limits of logic sometime expose the perversity of a doctrine and fail to promote public good which can be said applies in the present case as the logic of interpreting penetration to include even the manipulation of penis sounds too far fetched.

Corroboration with medical evidence

The term 'sexual perversity' cannot be taken to refer to every physical contact by a male with the body of the other with intent to cause sexual satisfaction to the actor. Such an interpretation will be grossly erroneous as is not in conformity with the meaning of sexual intercourse in reality.

There should be some medical evidence on the record, if it is possible to get it, as to the condition of the anus of the person on whom the act is said to have been perpetrated, or at any rate, some proof as to the appearance of the part of his body shortly after the alleged act of unnatural intercourse, from which penetration may be properly inferred and without which no penetration should be proved. Since a charge under this section is very difficult to refute, the evidence in support of such a charge has to be very convincing. There is no such medical evidence and the Court has failed to consider the aspect.

Strict interpretation

If the courts have held so because the penal laws do not define penetration for section 377 and hence is open for interpretation, it cannot be applicable in line of the principle point laid down in Sudesh Jhaku v. K.C.J. and others, 1998 CrLJ 2428 which is that the "words used in the statute are limited by the common law definition of the crime where the words of the statute themselves are not explicit as to what shall be included." Thus following this principle penetration should be construed as penetration of male organ either into the vagina or anus and nothing other than that, which has not been done in the given case situation.

It would not be permissible to strain the words and their well understood and well entrenched meaning so as to bring within their fold certain acts, which do not come within the reasonable interpretation of the provision. It is not a case where the main object and intention of the provision is not clear. Matters of common knowledge and matters of common report are also out of tune with the plain words used. Will not the interpretation sought to be put make the offence out of step with the understanding of Indian population a great majority of which is illiterate.

Power of Legislature not Judiciary

The concept of crime undoubtedly keeps on changing with the change in political, economic and social set-up of the country. The Constitution, therefore, confers powers both on Central and State legislatures to make laws in this regard. Such right includes power to define a crime and provide for its punishment. Thus it is for the legislature go into the matter and intervene and broaden the legislative perspective of the term penetration and until then the courts are deemed to strictly follow the law as of now. The present argument is also substantiated by the ruling of the Supreme Court in the case of Revathi v. Union of India, AIR 1988 SC 835

Conclusion

It is very evident from the given case that there a gap between what the law is and what is being interpreted. Section 377 of the Indian Penal Code clearly shows the legislative intent by including penetration in the explanation, which needs to be read with the section. But the Courts time and again have taken a broadened view of the word, which cannot be said to be right. Agreed the Penal Laws of India are ancient and need to be modified in view of the changes in the scenario and also with respect to the contemporary changes around the world in enlarging their definition of penetration to include all possible sexual perversity. But then it has to be remembered no shifts in thinking, or in social trends, and no new technologies, can change the basic givens that are rooted in the mutuality and biological complementarity of the sexes and hence simply enlarging the perspective of penetration would be injustice. The Courts should limit their interpretation to the original and actual meaning till the legislature actually brings the required chage in light of the recent trends.

Sources

1. Constitutional Barriers To Civil And Criminal matters, Harvard Law Review, May, 1991
2. Jed Rubenfeld, Penal Laws and Tragedy, February 1989.
3. Justice B.P. Jeevan Reddy, Review Of Rape Laws, 25th March 2000.
4. Lisa Meerts-Brandsma, Criminal Law and expanding scope, August 30th 2005.
5. Setting Boundaries: Reforming the Law on Sex offences, (Home office Review, July 2000).