The Calcutta High Court in India recently refused to quash a criminal case involving charges under Section 377 and allegations of sexual torture of a medical student by his senior.
The court observed that even incomplete anal intercourse would constitute penetration and could be an ingredient to constitute the offence under Section 377 of the Indian Penal Code (IPC).
The court stated that “penetration, however little is an offence” under Section 377, which now penalizes non-consensual unnatural sexual intercourse after the Supreme Court’s ruling in Navtej Singh Johar v. Union of India. The accused were charged with Sections 506 (criminal intimidation) and 120B (criminal conspiracy) of the IPC, in addition to the Section 377 offence.
The complainant had alleged that he was forcibly undressed and sexually tortured for about two hours by a doctor, who was one of the two accused in the case. The complainant further claimed that both accused had threatened him against speaking about the incident to others. The accused contended that the complainant had filed a false case against them on account of political rivalry.
However, the court noted that there were several statements in the case diary that supported the allegations of the complainant and made out a prima facie case against the accused.
The court also commented on the gravity of the allegations, stating that the incident, if true, was horrifying and could lead to a mental breakdown and leave a person scarred for life.
The judge remarked that filing a complaint of such nature on having to face the ordeal for two and a half long hours by a student against a superior who is in a position of influence (here, in a doctor) in a Medical College requires extreme courage and mental strength, and in the interest of justice, the case should proceed towards trial so that the parties have the opportunity to access the protection of justice.
A medical report prepared after examining the victim had stated that his anal orifice was healthy and that there was no fresh or recent injury. The report had presented an opinion that no injury or evidence of complete anal intercourse could be detected.
The court observed that the medical officer who conducted the exam and prepared the report should be examined in trial so that the above finding could be clarified. For this, a trial is necessary in the interest of justice, the court said.
The court refused to quash the case and pointed out that the petitioners would also have an opportunity to be heard at trial.
Senior Advocate Milon Mukherjee and Advocates Usof Ali Dewan and Asif Dewan appeared for the petitioners, while Advocates Arijit Ganguly and Sanjib Kumar Dan represented the State.