A sessions court has wondered as to why the penal offence of sodomy, entailing sentence up to life imprisonment should be triable by a magisterial court which can award a jail term of only up to three years.
Additional Sessions Judge Manoj Jain stumbled upon this interesting legal anomaly in criminal law relating to the penal offence of unnatural sexual offences under section 377 of the Indian Penal Code, while reviewing a magisterial court's judgement in a case of sodomy.
"Sec 377 of the IPC (unnatural offences) is triable by the court of magistrate and any magistrate has the power to award sentence only up to three years.
Sec 377 of the IPC provides sentence up to life. Why to make such offence triable by magistrate when sentence is so severe?," ASJ Jain wondered, while deciding a case of attempted sodomy on a minor.
The sessions court's observations came in its judgement over the appeal of a 28-year-old man who had been sentenced to three years and six months in jail by a court of additional chief metropolitan magistrate for attempting to sodomise his minor neighbour.
Quoting the penal provision, the judge said that 'Section 377 of the IPC, dealing with unnatural offences provides that 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 for a term which may extend to ten years and shall also be liable to fine."
He added that as per Section 57 of the IPC, the sentence of life imprisonment, in turn, means 20 years in jail.
"Sec 377 provides sentence up to life. Life sentence means maximum sentence of 20 years as per Section 57 of the IPC. Thus the maximum sentence for attempt would be 10 years as per Section 511 of the IPC. Why to make such offence triable by magistrate when sentence is so severe?" the court wondered.
"Moreover, if any court of magistrate wants to give maximum dosage to a convict for attempted sodomy under sections 377/511 of the IPC, the sentence would be three years and interestingly and surprisingly, it could give same sentence for actual sodomy," the court said.
"Thus same maximum sentence can be given for 'actual act' and its 'attempt' as well.
This could never have been the intention of the legislature," the ASJ observed.