Bombay high court declines pre­-arrest bail to man booked for ‘unnatural’ sex

MUMBAI: The Bombay high court recently refused anticipatory bail to a pilot who was booked under Indian Penal Code Section 377 for unnatural intercourse on a complaint by a woman he was to marry.
“It is very well true that if one of the parties to intercourse subsequently dislikes it, he or she has every right to take recourse to the law which is available,” said Justice S M Modak on April 13.
The pilot and the woman, an anchor-writer, had met through a mutual friend in June 2021, fell in love, got engaged in April 2022 and on December 28, 2022, issued a notice for special marriage.
The FIR was lodged on February 21, 2023, on the woman’s complaint that the first unnatural intercourse incident took place in July 2022 in the pilot’s house and the second in January 2023 in the car while travelling to Yeoor.
Questioning the delay in the FIR, the pilot’s advocate, P R Arjunwadkar, said despite the first incident, the woman was ready to go ahead with the marriage. He said her complaint was a counterblast to his client’s February 11, 2023, police complaint after she had slapped him. Arjunwadkar said it is the choice of the parties to decide the manner in which they can have intercourse with each other. “To certain extent he may be correct. But the law of nature as well as law of land makes certain acts of intercourse which are against nature as an offence and it is under Section 377 of IPC," said Justice Modak.
He cited the Supreme Court’s observation in Navtej Singh Johar’s case that any act under Section 377 done between individuals without the consent of any one of them would invite penal liability. “So, prima facie, I am convinced that the allegations do warrant application of Section 377 of IPC,’’ Justice Modak added. He said whether the woman had consented at the beginning or not can be decided at the trial.
Prosecutor A R Kapadnis referred to statements of witnesses, friends to whom the woman disclosed about “those acts” and also WhatsApp messages between the couple. “I have seen them. The said photographs are of private parts and the messages exchanged,” said Justice Modak. He concluded that custodial interrogation is necessary as “the police certainly has got a right to interrogate the applicant, so far as every aspect of unnatural intercourse is concerned.”