Full Judgment
S.K. Chattopadhyaya, J.
1. In this application the order dated 18.12.1986 and 10.4.1987 have been impugned by reason of which the learned court below has refused to discharge the petitioner and framed charge against him under Sections 377, 511 read with Section 323 of the Indian Penal Code.
2. The facts of the case lie in a narrow compass, F.I.R. was lodged by ones Laltoo Vishal on 16.7.1986 a servant working in a hotel alleging that he was sleeping on a road culvert and when he suddenly woke up and found that the petitioner, in order to commit unnatural act, opened his lungi and underwear, The informant raised hulla but the petitioner threatened him with dire consequences. Other servants also woke up and one of the servants was assaulted by the petitioner. The informant, out of fear, entered into a shop.
After competition of investigation charge-sheet was filed and cognizance was taken. The petitioner filed a petition for his discharge which was refused and ultimately charge aforesaid was framed against the petitioner.
3. Mr. P.S. Dayal, learned Counsel appearing on behalf of the petitioner has submitted that the allegations made in the FIR against the petitioner do not constitute an offence justifying the framing of charge under Sections 377 and 511 of the Indian Penal Code. He submits that in order to sustain conviction there must be proof of allegation of atleast penetration. In support of his contention he has relied on an unreported decision of this Court dated 19.8.1986 passed in Cr. Rev. No. 156/81 (R).
4. No body appears on behalf of the State to oppose this application.
5. Section 377 of the Indian Penal Code Reads as under:
Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal shall be punished with imprisonment for life or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
Explanation : Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.
Similarly Section 511 of the Indian Penal Code reads as under:
Whoever attempts to commit an offence punishable by this Code with imprisonment for life or imprisonment, or to cause such an offence to be committed, and in such attempt does any act towards the commission of the offence, shall where no express provision is made by this Code for the punishment of such attempt, be punished with imprisonment of any description provided for the offence, for a term which may extend to one-half of the imprisonment for life or as the case may be, one half of the longest term of imprisonment provided for that offence or with such fine as is provided for the offence, or with both.
6. Mr. Justice N.P. Singh learned single Judge of this Court (now in the Supreme Court) in the aforesaid unreported decision has considered the scope and ambit of Section 511. His lordships held, inter alia, that even if the prosecution fails to establish that an offence was committed but if it is proved that the accused concerned had attempted to commit that offence with the help of Section 511 of the Penal Code such accused can be convicted, of course, the sentence in such a situation cannot extend more than half of the period prescribed for commission of the offence itself.
7. For committing or for attempting to commit an offence under Section 377 of the Penal Code penetration must be proved before the accused can be convicted. In the case in hand only allegation of opening the lungi and pulling of the underwear is there but F.I.R. does not reveal that after pulling of underwear any attempt was made by the petitioner to commit the offence. No allegation of penetration as such is there which is sine qua non for convicting an accused for an offence under Section 377 I.P.C. Applying the test laid down in the said judgment, it can at least be said to be preparation to commit the offence. Since preparation to commit an offence under Section 377 is not an offence, in my view, no pffence is said to have been committed and charge under Section 377 read with 511 I.P.C. cculd not have been framed.
8. In the result, this application is allowed and the order dated 10.4.1987, framing of charge as well as criminal proceeding initiated against the petitioner being G.R. Case No. 1179-A of 1986 are hereby quashed.