Over a year after the Supreme Court decriminalised unnatural sex, the Bombay High Court recently quashed a First Information Report (FIR) registered against a city-based advocate, who was booked for indulging in unnatural sex and also making a video of it.
A bench of Justices Bhushan Dharmadhikari and Sadhana Jadhav quashed the FIR registered against advocate Nihal Bagadia at the Mahim police station, on a complaint filed by his father-in-law.
According to the complaint filed by the father-in-law, he had asked for some photos of a family function from Bagadia’s cell phone. He accordingly transferred all the photos and few videos from Bagadia’s cell phone to his own laptop.
While browsing through the photos, the father-in-law stumbled on a video clip, which showed Bagadia indulging in unnatural sex with some other woman. He wasted no minute in registering the FIR against Bagadia under the relevant provisions of the Indian Penal Code. He claimed that Bagadia had administered some toxic substance to the woman, shown in the video, and also cheated his own daughter.
However, the parties settled the matter amicably and moved the HC in 2016 seeking to quash the FIR but the same could not be done, especially because the police had invoked section 377 (which criminalised unnatural sex) of the IPC against Bagadia.
When the matter was taken up for hearing in 2016, though the HC was convinced to quash the FIR, it could not do so as the Delhi HC in 2013 had upheld the constitutional validity of section 377. However, Bagadia’s petition was kept pending as the matter pertaining to the constitutionality of section 377 was before the SC.
In their recent orders, the bench of Justice Dharmadhikari said, “It appears that in 2016, Bagadia’s prayer for quashing could not be looked into as the question of constitutionality of section 377 was pending.”
“Our attention has been invited to the fact that in October 2013, the Delhi HC upheld the validity of section 377. The controversy ultimately has been settled by a constitution bench of the SC in September 2018 and the consensual relationship has been excluded from the said provision,” Justice Dharmadhikari noted.
The judges further noted the contention of Bagadia that woman in the video clip has not made any grievance of her sexual relationship.
“The law as settled by the constitute bench is not in dispute. The concerned victim (if any) shown in the video clip has never made any grievance about the relationship. In this situation, we are inclined to quash the FIR,” Justice Dharmadhikari ruled.
