Constitution of unnatural offence u/s 377.

The petitioner in all these petitions is one and the same and he is the Sub-Warden of the Boarding Home attached to St. Mary's Higher Secondary School Tuticorin.

2. 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.

3. 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.

4. 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 with impunity. 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. But, on the other hand, they emanated for removal of the students, who complained of such activities, from the school, apart from causing iminent threat to their lives.

5. On receipt of the report, the respondent registered the case in Crime No. 279/87 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 and all those inmates connected with those incidents were examined and their statement recorded. After completing the formalities of the investigation, he laid three reports under section 173(2) Cri.P.C. - first two reports covering six incidents and the third report covering two incidents, for the alleged offence under section 377, I.P.C. against the petitioner, which was taken on file as C.C. Nos. 25 to 27 of 1988 by the Sub-Divisional Judicial Magistrate, Tuticorin.

6. 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.

7. Learned Counsel appearing for the petitioner would submit that the facts covering the various transactions or incidents in all these cases and now available in the shape of Section 161, Cr.P.C. statements of victims of sexual assault, if perused with a little bit of care, caution and circumspection would point out that no offence under Section 377, IPC could ever be stated to have been committed by the petitioner. He would further amplify by stating that the acts attributed to have been committed by him getting revealed by Section 161, Cr.P.C. statements can, by no stretch of imagination, be stated to 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.

8. Learned Additional Public Prosecutor would however repel such a submission.

9. The point posed for consideration is of some paramount importance and significance, as the case law available on the subject reflected by the superior Courts is not much. The sexual perversion takes shope in manifold forms going by different names such as.

"SODOMY : Non coital carnal copulation with a member of the same or opposite sex, e.g., per anus or per os (mouth)

BUGGERY : Intercourse per anux by a man with a man or woman; or intercourse per anux or per vaginam by a man or a woman with an animal

BESTIALITY : Sexual intercourse by a human being with a lower animal

TRIBADISM : Friction of the external genital organs by one woman on another by mutual bodily contact for the gratification of the sexual desireSADISM : A form of sexual perversion in which the infliction of pain and torture act as sexual stimulants

MASOCHISM : Opposite of sadism and sexual gratification is