The Telangana High Court dismissed a PIL petition seeking declaration of Sections 376 and 376A of the Indian Penal Code as unconstitutional as there were some lacunae in them.
Observing that the plea had raised an academic issue with regard to some loopholes left in the law, the HC ruled that an academic issue could not and should not be entertained by a court of law. “….judicial forum is not a place for raising an academic issue with regard to any alleged weakness in law,” a bench of Chief Justice Raghvendra Singh Chauhan and Justice B. Vijaysen Reddy said in the order.
If the petitioner was aggrieved with any lacuna in the law, he had the option of approaching the Central government or Parliament. The petitioner had not made any representation to the Central Law Ministry, pointing out the alleged weakness in the law either.
According to the petitioner, rule 3 of IPC Section 376 prescribes punishment of jail term of not less than 20 years, which may extend to life imprisonment. This rule does not prescribe capital punishment.
But IPC Section 376A prescribes death sentence as one of the punishments if the victim (who is under 16 years of age) dies or is reduced to a persistent vegetative state. The petitioner’s counsel contended that Section 376A deals only with rules 1 and 2 of Section 376 and does not deal with rule 3 of Section 376. This implies that if a victim of under 16 years of age dies or is reduced to persistent vegetative state, the case cannot be brought under the gambit of Section 376A and the accused cannot be awarded death sentence. This would result in injustice to the victim, the lawyer argued.
Observing that this argument was ‘highly misplaced’, the bench noted that the offender in rape case would be charged under IPC sections of both 376 and 302 if the victim dies. Section 302 prescribes death sentence, the bench noted.
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