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Daniel Crasto vs The State Of Maharashtra on 30 January, 2019

Sherla V.

wp.4470.2012_(J).doc

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION

CRIMINAL WRIT PETITION NO.4470 OF 2012

Daniel Crasto … Petitioner
Vs.
The State of Maharashtra … Respondent

Mr.Kranti L.C. with Mr.Gaurav Bhawnani for the Petitioner

Ms.Veera Shinde, APP, for the Respondent – State

CORAM: Mrs.MRIDULA BHATKAR, J.

DATED: JANUARY 30, 2019

JUDGEMENT:

1. In this petition, the petitioner is challenging the order dated

23.10.2012 thereby confirming the order dated 5.1.2012 passed by

the learned Metropolitan Magistrate, 40 th Court, Girgaon, Mumbai,

rejecting the discharge of the petitioner under section 377 of the

Indian Penal Code. The petitioner is a co-accused who was

initially prosecuted under sections 498A, 377, 323, 504 r/w section

34 of the Indian Penal Code alonwith the co-accused.

2. The facts of this case in brief are as under:

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One married woman filed complaint on 26.2.2019 against her

husband and the present applicant/accused and her husband got

married on 6.12.1994. In 2009, the couple had a son aged 6 to 7

years old. After 4 to 5 years of their marriage, she realised that her

husband is a gay and she opposed the parallel relationship of her

husband. However, he ill treated her and hence, she left the

house and started living with her father. Thereafter, again she

came back. However, though assured, she found that her

husband continued to keep his gay relationship with different

males. In early 2007, she found that her husband was having

sexual relationship with the petitioner accused and she also came

across her husband viewing a pornographic film of those two

whenever, he used to remember the petitioner/accused. She

found that her husband was not ready to stop his relationship with

the petitioner/accused but he ill treated her on a number of

occasions and therefore, she lodged the FIR on 26.2.2009 and the

offence was registered at C.R. No.59 of 2009 with Gamdevi police

station and pursuant to the same, the petitioner/accused alongwith

the husband of the complainant was prosecuted for a number of

offences. He moved an application for discharge before the

learned Metropolitan Magistrate, 40th Court, Girgaum. However,

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the said Court rejected the said application. So, he moved

Revision application No.286 of 2012. The learned Adhoc

Additional Sessiosn Judge, Greater Mumbai by order dated

23.11.2012 partly allowed the said revision application by

discharging the accused from section 323, 504 r/w section 34 of

the Indian Penal Code but maintained the charge under section

377 of the Indian Penal Code. Hence, this petition.

3. Heard submissions and persued the FIR and other

documents. The complainant has grievance against her husband,

who is a gay and kept sexual relatioins with male friends i.e., the

petitioner. The Supreme court in the case of Navtej Singh Johar

Ors. vs. Union of India1 has held section 377 of the Indian Penal

Code insofar as it criminalises consensual sexual conduct between

the adult of same sex, as unconsitutional. In the present case,

both were having an extra marital consensual sexual relationship.

Though it may be a ground for divorce on the ground of cruelty to

the complainant, it does not constitute offence under section 377

because both are adults and had sexual relationship by consent. In

this case, there is no victim. The complainant wife is an aggrieved

person but she cannot be called as a victim under section 377 of
1 W.P. (Cri.) Nbo.76 of 2016 Others decided on 6.9.2018

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the Indian Penal Code. There are alegations against the husband

having unnatural sexual intercourse with her.

4. Under such circumstances, the order passed by the learned

Adhoc Additional Sessions Judge, Greater Mumbai dated

23.11.2012 refusing to discharge the petitioner/accused from the

offence punishable under section 377 of the Indian Penal Code is

hereby quashed and set aside. Accordingly, the petitioner/accused

is hereby discharged from section 377 of the Indian Penal Code.

5. Rule made absolute accordingly.

(MRIDULA BHATKAR, J.)

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