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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF MARCH, 2022 BEFORE THE HON'BLE MR. JUSTICE M. NAGAPRASANNA WRIT PETITION No.48367 OF 2018 (GM-RES)
C/W WRIT PETITION No.12976 OF 2017 (GM-POLICE)
WRIT PETITION No.10001 OF 2018 (GM-RES) WRIT PETITION No.50089 OF 2018 (GM-RES)
IN WRIT PETITION No.48367 OF 2018 BETWEEN:
MR.HRISHIKESH SAHOO S/O JAGANNATH SAHOO AGED 43 YEARS, R/AT FLAT NO.306, S.K.RESIDENCY
6TH CROSS, KASUVANAHALLI SARJAPURA BENGALURU – 560 035.
... PETITIONER (BY SRI HASHMATH PASHA, SR.ADVOCATE FOR SRI RANJAN KUMAR, P., ADVOCATE (PHYSICAL HEARING))
AND:
1. STATE OF KARNATAKA BY WOMEN POLICE STATION EAST ZONE, BENGALURU CITY – 560 030 (REPRESENTED BY LEARNED GOVERNMENT ADVOCATE)
2. UNION OF INDIA DEPARTMENT OF LAW AND PARLIAMENTARY AFFAIRS REPRESENTED BY ITS CABINET SECRETARY
4TH FLOOR, A-WING, RASHTRAPATI BHAWAN NEW DELHI – 110 004 (REPRESETNED BY SECRETARY)
3. SMT. XXXXXX @ XXXXX W/O HRISHIKESH SAHOO AGED ABOUT 27 YEARS, R/AT FLAT NO.306, S.K.RESIDENCY
6TH CROSS, KASUVANAHALLI SARJAPURA BENGALURU – 560 035.
... RESPONDENTS (BY SMT.NAMITHA MAHESH B.G., AGA A/W SRI R.D.RENUKARADHYA, HCGP FOR R1 (PHYSICAL HEARING)
SRI MADANAN PILLAI R., CGC FOR R2 (VIDEO CONFERENCING)
SRI A.D.RAMANANDA, ADVOCATE FOR R3 (PHYSICAL HEARING))
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA READ WITH SECTION 482 OF THE CODE OF CRIMINAL PROCEDURE PRAYING TO DECLARE THAT SECTIONS 29 AND 30 OF THE POCSO ACT IS UNCONSTITUTIONAL BEING VIOLATION OF ARTICLES, 14, 19, AND
21 OF CONSTITUTION AND ETC., IN WRIT PETITION No.12976 OF 2017 BETWEEN:
MRS. XXXXXXX @ XXXX R/AT K.P.C. LAYOUT, S.R.S. RESIDENCY FLAT NO.306, 6TH CROSS, KASAVANAHALLI SARJAPUR BENGALURU – 560 035.
... PETITIONER (BY SRI RAMANANDA A.D., ADVOCATE (PHYSICAL HEARING))
AND:
1. STATE OF KARNATAKA HON’BLE MINISTRY OF PARLIAMENTARY AFFAIRS AND LAW R/BY ITS SECRETARY GOVERNMENT OF KARNATAKA VIDHANA SOUDHA, BENGALURU – 560 001.
2. THE COMMISSIONER OF POLICE INFANTRY ROAD BENGALURU – 560 001.
3. THE INSPECTOR OF POLICE WOMEN POLICE STATION BASAVANAGUDI POLICE STATION BENGALURU – 560070.
4. THE INSPECTOR OF POLICE WOMEN POLICE STATION SHIVAJINAGAR POLICE STAITON BENGALURU – 560 001.
5. KARNATAKA STATE LEGAL SERVICE AUTHORITY R/BY ITS CHAIRMAN NYAYADEGULA BUILDING SIDDAIAH ROAD BENGALURU – 560 027.
(AMENDED VIDE COURT ORDER DATED 04.09.2018)
... RESPONDENTS (BY SMT.NAMITHA MAHESH B.G., AGA A/W SRI R.D.RENUKARADHYA, HCGP FOR R1 TO R4 (PHYSICAL HEARING);
SMT.B.V.NIDHISHREE, ADVOCATE FOR R5)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO DIRECT THE R-1 TO OFFER SOCIAL SECURITY, REHABILITATION PROCESS AND FINANCIAL SECURITY IN KEEPING VIEW OF THE FUTURE LIFE OF THE PETITIONER AND HER DAUGHTER'S NAME NOT DISCLOSED IN THE ANNEXURE-B DTD:21.3.2017 IN CRIME NO.13/2017 PENDING ON THE FILE OF CCH-54 INVESTIGATED BY THE R-3 POLICE AND ETC., IN WRIT PETITION No.10001 OF 2018 BETWEEN:
KARAM ABDUL AHMED S/O ABDUL AHMED, AGED ABOUT 23 YEARS, R/AT NO.30, FARHANA MANZIL, GROUND FLOOR, ROOM NO.3, FEARLESS COLONY, NEAR GARDEN CITY COLLEGE, VIRGO NAGAR POST, BENGALURU – 560 049 NATIVE OF MOUSAL, NINAWATH, IRAQ.
... PETITIONER (BY SRI HASHMATH PASHA, SR.ADVOCATE FOR SRI RANJAN KUMAR P., ADVOCATE (PHYSICAL HEARING))
AND:
1. STATE OF KARNATAKA BY K.R.PURAM POLICE STATION, BENGALURU – 560 036 (REPRESENTED BY LEARNED GOVERNMENT ADVOCATE)
2. UNION OF INDIA DEPARTMENT OF LAW AND PARLIAMENTARY AFFAIRS, REPRESENTED BY ITS CABINET SECRETARY, 4TH FLOOR, A-WING, RASHTRAPATI BHAWAN, NEW DELHI – 110 004 (REPRESENTED BY ASSISTANT SOLICITOR GENERAL)
... RESPONDENTS (BY SMT.NAMITHA MAHESH B.G., AGA A/W SRI R.D.RENUKARADHYA, HCGP FOR R1 (PHYSICAL HEARING)
SRI SHANTIBUSHAN, ASG A/W SRI B.PRAMOD, CGC FPR R2 (PHYSICAL HEARING))
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA READ WITH SECTION 482 OF THE CODE OF CRIMINAL PROCEDURE PRAYING TO DECLARE THAT SECTION 29 AND 30 OF THE POCSO ACT IS UNCONSTITUTIONAL BEING VIOLATION OF ARTICLES 14, 19 AND
21 OF THE CONSTITUTION AND ETC., IN WRIT PETITION No.50089 OF 2018 BETWEEN:
MRS. XXXXX XXX @ XXXX W/O HRISHIKESH SAHOO, AGED ABOUT 28 YEARS, PRESENTLY R/AT NO.232, 53RD B CROSS, 17TH D MAIN, 3RD BLOCK, RAJAJIANGAR, BENGALURU – 560 010.
... PETITIONER (BY SRI RAMANANDA A.D., ADVOCATE (PHYSICAL HEARING))
AND:
1. THE STATE OF KARNATAKA BY WOMEN P.S. EAST ZONE, REPRESENTED BY STATE PUBLIC PROSECUTOR HIGH COURT BUILDING, BENGALURU – 560 001.
2. MR.HRISHIKESH SAHOO S/O JAGANNATH SAHOO, AGED ABOUT 43 YEARS S.R.S. RESIDENCY, FLAT NO.306, 6TH CROSS, KASAVANAHALLI, SARJAPUR, BENGALURU – 560 035.
... RESPONDENTS (BY SMT.NAMITHA MAHESH B.G., AGA A/W SRI R.D.RENUKARADHYA, HCGP FOR R1 (PHYSICAL HEARING);
R2-SERVED)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA READ WITH SECTION 482 OF THE CODE OF CRIMINAL PROCEDURE PRAYING TO QUASH THE REJECTION ORDER OF THE APPLICATION FILED BY THE ASSISTING PROSECUTOR UNDER SECTION 193 AND SECTION 216 OF CODE OF CRIMINAL PROCEDURE PASSED BY THE LEARNED 50TH ADDL CITY CIVIL AND SESSION JUDGE AT BENGALURU (CCH- 51) VIDE IMPUGNED ORDER DTD 16.10.2018 IN SPL.C.C.
NO.356/2017 VIDE ANNX-A AND ETC., THESE WRIT PETITIONS HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 20.12.2021, COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER
What falls for consideration in the subject writ petition is, “Integrity and bodily freedom of a woman, the wife, being ravaged by the husband, whether, could be absolved and protected by a law that mandates equality of its application”.
What pervades the entire petition is, “wanton lust, vicious appetite, depravity of senses, loathsome beast of passion, unbridled unleashing of carnal desire of demonish perversion”. It is these that drove the complainant-wife to register a complaint against the husband for offences punishable, inter alia, under Sections 376 and 377 of the Indian Penal Code. Cognizance being taken against the husband for the rape of his wife, is what drives the accused-husband, to this Court.
2. FACTUAL EXPOSE’ as borne out from the pleadings are as follows:
Writ Petition No.48367 OF 2018:
The petitioner- accused No.1 in Spl.C.C.No.356/2017 gets married to the complainant - Mrs.XXXXX @ XXXX on 20.06.2006, at Bhuvaneshwar. The couple stayed at various parts of the nation and at the relevant point in time, he was working at Bangalore and have also a child born out of their wedlock. After few years of living together, relationship of the couple gets horribly strained. Many instances of physical and mental torture to the wife and the child led to the complainant- wife registering a complaint against the husband on 21.03.2017. The complaint becomes an FIR in Crime No.13/2017 for offences punishable under Sections 506, 498A, 323, 377 of the Indian Penal Code (‘IPC’ for short) and Section 10 of the Protection of Children from Sexual Offences Act, 2012 (‘POCSO Act’ for short).
3. The Police, after investigation, have filed a charge sheet against the petitioner. While filing the charge sheet, the offences punishable under Sections 498A, 354, 376, 506 of the IPC and Sections 5(m) and (l) r/w Section 6 of the POCSO Act, 2012, are invoked. The case is now registered as Spl.C.C.No.356/2017. The parents of the petitioner along with the petitioner were also charge sheeted as accused Nos.2 and 3 and have been discharged pursuant to an order passed by this Court in Crl.P.No.423/2018 disposed on 03.07.2018. Therefore, the trial is now to be conducted only against the petitioner-husband of the complainant.
4. On filing of the charge sheet, the Special Court framed charges against the petitioner alone in terms of its order dated 10.08.2018, for offences punishable under Sections 376, 498A and 506 of IPC and Section 5(m) and (l) r/w Section 6 of the POCSO Act. It is at that juncture, the petitioner has knocked the doors of this Court in the subject criminal petition seeking the following prayers:
“PRAYER Wherefore, the Petitioner (accused No.1) most humbly prays that this Hon’ble Court be pleased to issue a Writ of Certiorari or a Writ of appropriate nature or orders or direction and, (a) Declare that Sections 29 and 30 of the POCSO Act is unconstitutional being violation of Articles 14, 19 and 21 of the Constitution.
(b) To quash the entire proceedings pending in Spl.C.C.No.356/2017 on the file of Hon’ble L Additional City Civil and Sessions and Special Court for Cases under POCSO Act, Bangalore City as per ANNEXURE – ‘A’ as an abuse of process of Law.
(c) Grant such other relief or reliefs as this Hon’ble Court deems fit to grant, in the ends of justice.”
5. Heard Sri. Hashmath Pasha, the learned senior counsel appearing for the petitioner-husband, Smt.Namitha Mahesh, learned Additional Government Advocate representing respondent No.1-State, Sri Sri.A.D.Ramananda, learned counsel appearing for the complainant-wife, Sri.Shanthi Bhushan, learned Assistant Solicitor General of India representing the Central Government. The respective counsel has made the following submissions:
Submissions of the petitioner:
6. The learned senior counsel Sri Hashmath Pasha would urge the following contentions:
(i) The presumption under Sections 29 and 30 of the POCSO Act is unconstitutional as it imposes a reverse burden of proving innocence on a presumptio
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