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sec. 354 outrage the modesty of women is to be considered stringy, no lenient view – Ajahar Ali … Appellant VERSUS State of West Bengal … Respondent published in judis.nic.in/supremecourt/filename=40857

Sec. 354 outrage the modesty of women is to be considered stringy, no lenient view should be taken while granting punishment – Due to delay of 18 years, the accused is not entitled  to any benefit under the provisions of Probation of Offenders Act, 1958 – No lenient view

 

English: The supreme court of india. Taken abo...

English: The supreme court of india. Taken about 170 m from the main building outside the perimeter wall (Photo credit: Wikipedia)

 

 

The provisions of Section 354 IPC has been enacted to  safeguard

 

      public morality and decent behaviour.  Therefore, if any  person  uses

 

      criminal force upon any woman with the intention or knowledge that the

 

      woman’s modesty will be outraged, he is to be punished. =

 

 

 

 In Vishaka & Ors. v. State of Rajasthan & Ors., AIR 1997 SC 3011

 

      and Apparel Export Promotion Council v. A.K. Chopra, AIR 1999 SC  625,

 

      this court held that the offence relating to modesty of  woman  cannot

 

      be treated as  trivial  and  a  lenient  view  by  giving  six  months

 

      imprisonment  on  the  ground   of   juvenility   does   not   require

 

      consideration.

 

      18.   In Chinnadurai v. State of Tamil Nadu, AIR  1996  SC  546,  this

 

      Court  rejected  the  plea  for  reduction  of  sentence  in  view  of

 

      considerable delay and other circumstances observing that sentence has

 

      to be awarded taking into consideration the gravity of the injuries.

 

 In view of the above, we are of considered opinion that  as  the

 

      appellant had been awarded only six months  imprisonment,  considering

 

      the matter under the JJ Act, 2000 would not serve any purpose at  such

 

      a belated stage.   The  High  Court  had  been  of  the  opinion  that

 

      appellant had been dealt with very leniently and it  was  a  fit  case

 

      where the High Court wanted to enhance the  sentence  but  considering

 

      the fact  that  the  incident  occurred  long  back,  the  High  Court

 

      refrained to do so.

 

      22.   Thus, the  appeal  fails  and  is  accordingly  dismissed.   The

 

      appellant is directed to surrender within a period of  four  weeks  to

 

      serve out the sentence, failing which the Chief  Judicial  Magistrate,

 

      Malda, is directed to take him into custody to serve out the sentence.

 

       A copy of the order be sent to Chief Judicial Magistrate,  Malda  for

 

      information and action.

 

REPORTABLE

 
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION

 
CRIMINAL APPEAL NO.1623 OF 2013
(Arising out of SLP (Crl.) No. 2817 of 2013)

 
Ajahar Ali
Appellant

 
VERSUS

 
State of West Bengal
… Respondent

 

 

 
J U D G M E N T

 
Dr. B.S. Chauhan, J.

 

 

 
1. Leave granted.

 
2. This appeal has been preferred against the impugned judgment and
order dated 19.9.2012 passed by the High Court of Calcutta in
Criminal Revision No. 3240 of 2012 affirming the judgment and
order of the learned Sessions Judge dated 22.8.2012 dismissing
the appeal of the appellant against the judgment and order of
the learned Magistrate dated 9.5.2012, by which and whereunder
the learned Magistrate had found the appellant guilty for the
offence punishable under Section 354 of Indian Penal Code, 1860
(hereinafter referred to as the ‘IPC’). He had been sentenced
to suffer SI for 6 months and further to pay a fine of Rs.1,000/-
, and in default of payment of fine, further to undergo SI for
two months.

 

3. Facts and circumstances giving rise to appeal are that:
A. On 6.11.1995, Nasima Begum (PW.1), aged about 16 years filed a
complaint alleging that on that day while she was going to attend her
tuition alongwith her friend Nilufa Khatun, she met the appellant on
the way who suddenly came and forcibly caught hold of her hair and
planted a kiss, resultantly, she suffered a cut over her lower lip and
started bleeding.
B. A case under Section 354/324 IPC was registered. After
conducting the trial, the court of Ist Judicial Magistrate, Ist Court,
Malda vide judgment and order dated 9.5.2012 found the appellant
guilty for offence under Section 354 IPC and sentenced him as referred
to hereinabove.
C. Aggrieved, the appellant preferred Criminal Appeal No.2/2012
before the learned Sessions Judge, Malda and the said appeal was
dismissed vide judgment and order dated 22.8.2012.
D. Appellant challenged both the aforesaid orders by filing
Criminal Revision before the High Court which has been dismissed by
the impugned judgment and order dated 19.9.2012.
Hence, this appeal.

 
4. Shri S.C. Ghosh, learned counsel appearing for the appellant has
half-heartedly challenged the findings of fact recorded by the courts
below. However, we are not inclined to re-appreciate the evidence and
disturb the findings recorded by the three courts, therefore, he
argued that since the incident occurred more than 18 years ago and at
that time the appellant as well as the complainant were about 16 years
of age, the court should not send the appellant to jail at such a
belated stage. Considering the fact that the appellant was juvenile
in view of the provisions of Juvenile Justice Act, 2000 (hereinafter
referred to as the ‘JJ Act 2000’), he ought to have been tried before
the Juvenile Justice Board and not by the criminal court, as was done.
Even otherwise, considering the time gap of 18 years and the fact that
the appellant as well as the complainant have settled in life and
both of them are married and have children, their lives should not be
disturbed. In all circumstances, the court should give the benefit to
the appellant under the provisions of Probation of Offenders Act, 1958
(hereinafter referred to as the ‘Act 1958’). Therefore, the appeal
deserves to be allowed.
5. On the other hand, Shri Anip Sachthey, learned Standing counsel
appearing for the State of West Bengal has opposed the appeal
contending that considering the nature of offence wherein the modesty
of a young girl was outraged, the question of showing any leniency or
granting the benefit of the Act 1958 is not warranted. Even if the
case of the appellant is considered under the JJ Act 2000, the maximum
punishment that can be awarded is of 3 years, while in the instant
case, the appellant had been sentenced only for a period of six
months. Therefore, it will be a futile exercise to consider the case
of the appellant on that anvil. Thus, the appeal is liable to be
dismissed.

 
6. We have considered the rival submissions made by learned counsel
for the parties and perused the record.

 
7. In view of the concurrent findings recorded by the three courts
below, we are not inclined to re-appreciate the evidence. The same
is also not warranted in view of the fact that the complainant, Nasima
Begum who had no enmity against the appellant has been very consistent
about the factual matrix not only in her statement under Section 161
of Code of Criminal Procedure, 1973 (hereinafter referred to as
`Cr.P.C.’) but also before the court and had supported the prosecution
case fully. Her version was corroborated by several other witnesses
and the courts below have recorded a finding that the appellant was
guilty beyond reasonable doubt.

 
8. Learned counsel for the appellant pleads for leniency on the
ground that the trial has gone on for a long time; furthermore, he has
no previous criminal history and that he may lose his job. For the
purpose of seeking a benefit under the Act 1958 he has placed reliance
on the judgment of this Court in Mohamed Aziz Mohamed Nasir v. State
of Maharashtra, AIR 1976 SC 730, wherein the benefit of the Act 1958
was given observing further that even if such plea had not been raised
before the court below, it can be raised for the first time before
this court. That was a case under Section 379 r/w Section 34 IPC and
the charge against the said appellant was snatching two sarees from
one Govind who was carrying them from the shop of his master to that
of a washer and dyer.

 
9. In Musa Khan & Ors. v. State of Maharashtra, AIR 1976 DV 2566,
this Court observed that the purpose of the provisions of the Act 1958
is to reform the juvenile offenders though that was a case of Section
149 IPC and the court held that culpable liability does not arise from
mere presence in the assembly and even participation does not
necessarily lead to the conclusion that he joined that unlawful
assembly willingly.

 
10. This Court in Karamjit Singh v. State of Punjab, (2009) 7 SCC
178, to which one of us (Dr. B.S. Chauhan, J.) was a member of the
Bench, after considering various earlier judgments and particularly
Om Prakash & Ors. v. State of Haryana, (2001) 10 SCC 477 and Manjappa
v. State of Karnataka, (2007) 6 SCC 231; held that a relief under the
Act 1958 should be granted in the offences which were not of a very
grave nature or where the mens rea is absent.

 
11. In State of Himachal Pradesh v. Dharam Pal, (2004) 9 SCC 681,
this Court considered the appeal of the State of Himachal Pradesh
wherein the benefit of the Act 1958 had been given to the accused who
was held guilty for offence under Section 376/511 IPC for attempt to
commit rape. This Court in the peculiar facts and circumstances of
that case did not interfere with the judgment and order of the High
Court, but at the same time did not approve of the reasoning given by
the High Court. The court held as under :

 
“According to us, the offence of an attempt to commit rape is a
serious offence, as ultimately if translated into the act leads
to an assault on the most valuable possession of a woman i.e.
character, reputation, dignity and honour. In a traditional and
conservative country like India, any attempt to misbehave or
sexually assault a woman is one of the most depraved acts. The
Act is intended to reform the persons who can be reformed and
would cease to be a nuisance in the society. But the discretion
to exercise the jurisdiction under Section 4 is hedged with a
condition about the nature of offence and the character of the
offender. Section 6 of the Act makes the provisions applicable
in cases where offenders are under 21 years of age, as
restrictions on imprisonment of offenders have been indicated in
the said provision. In a case involving similar facts, this
Court in State of Haryana v. Prem Chand, (1997) 7 SCC 756 upheld
the judgment of the High Court which extended the benefit of
provisions under Section 4 of the Act. Considering the peculiar
circumstances of the case and taking into account the fact that
on the date of occurrence the accused was less than 21 years
old, we feel this is a case where no interference is called for
with the judgment of the High Court, though some of the
conclusions arrived at by the High Court do not have our
approval.”

 

 

 
12. In the instant case, as the appellant has committed a heinous
crime and with the social condition prevailing in the society, the
modesty of a woman has to be strongly guarded and as the appellant
behaved like a road side Romeo, we do not think it is a fit case where
the benefit of the Act 1958 should be given to the appellant.
13. This brings us to the next question regarding the applicability
of JJ Act 2000. This issue has been raised for the first time in this
court and the appellant can do so in view of the larger Bench judgment
of this Court in Abuzar Hossain @ Gulam Hossain v. State of West
Bengal, (2012) 10 SCC 489, wherein it was held that the plea of
juvenility can be raised at any stage irrespective of delay in raising
the same. But the question that would arise is if the matter came
before the Juvenile Justice Board, the maximum sentence that can be
awarded in such a case is of 3 years. In the instant case, the
punishment awarded is only six months so the cause of the appellant is
not prejudiced.
14. The provisions of Section 354 IPC has been enacted to safeguard
public morality and decent behaviour. Therefore, if any person uses
criminal force upon any woman with the intention or knowledge that the
woman’s modesty will be outraged, he is to be punished.
15. In State of Punjab v. Major Singh, AIR 1967 SC 63, this Court
observed that modesty is the quality of being modest which means as
regards women, decent in manner and conduct, scrupulously chaste,
though the word ‘modesty’ has not been defined in the Code. The
ultimate test for determining whether modesty has been outraged is
whether the action of the offender as such can be perceived as one
which is capable of lowering the sense of decency of a woman.
(See also: Aman Kumar v. State of Haryana, AIR 2004 SC 1497; Raju
Pandurang Mahale v. State of Maharashtra, AIR 2004 SC 1677; and
Turkeshwar Sahu v. State of Bihar, (2006) 8 SCC 560).

 
16. In Mrs. Rupan Deol Bajaj & Anr. v. Kanwar Pal Singh Gill & Anr.,
AIR 1996 SC 309, slapping a woman on her posterior amounted to
outraging of her modesty within the meaning of Sections 354 and 509
IPC.
17. In Vishaka & Ors. v. State of Rajasthan & Ors., AIR 1997 SC 3011
and Apparel Export Promotion Council v. A.K. Chopra, AIR 1999 SC 625,
this court held that the offence relating to modesty of woman cannot
be treated as trivial and a lenient view by giving six months
imprisonment on the ground of juvenility does not require
consideration.
18. In Chinnadurai v. State of Tamil Nadu, AIR 1996 SC 546, this
Court rejected the plea for reduction of sentence in view of
considerable delay and other circumstances observing that sentence has
to be awarded taking into consideration the gravity of the injuries.

 
19. In State of U.P. v. Shri Kishan, AIR 2005 SC 1250, this Court
has emphasised that just and proper sentence should be imposed. The
Court held:
“…… Any liberal attitude by imposing meager sentences or taking
too sympathetic view merely on account of lapse of time in
respect of such offences will be result-wise counter productive
in the long run and against societal interest which needs to be
cared for and strengthened by string of deterrence inbuilt in
the sentencing system.
The Court will be failing in its duty if appropriate
punishment is not awarded for a crime which has been committed
not only against the individual victim but also against the
society to which the criminal and victim belong. The punishment
to be awarded for a crime must not be irrelevant but it should
conform to and be consistent with the atrocity and brutality
with which the crime has been perpetrated, the enormity of the
crime warranting public abhorrence and it should ‘respond to the
society’s cry for justice against the criminal’.”

 

(Emphasis added)

 

 

 
20. In Sadhupati Nageswara Rao v. State of Andhra Pradesh, AIR 2012
SC 3242, this Court observed that the courts cannot take lenient view
in awarding sentence on the ground of sympathy or delay as the same
cannot be any ground for reduction of sentence.

 
21. In view of the above, we are of considered opinion that as the
appellant had been awarded only six months imprisonment, considering
the matter under the JJ Act, 2000 would not serve any purpose at such
a belated stage. The High Court had been of the opinion that
appellant had been dealt with very leniently and it was a fit case
where the High Court wanted to enhance the sentence but considering
the fact that the incident occurred long back, the High Court
refrained to do so.
22. Thus, the appeal fails and is accordingly dismissed. The
appellant is directed to surrender within a period of four weeks to
serve out the sentence, failing which the Chief Judicial Magistrate,
Malda, is directed to take him into custody to serve out the sentence.
A copy of the order be sent to Chief Judicial Magistrate, Malda for
information and action.
….……………………….J. (DR.
B.S. CHAUHAN)

 

 

 

………………………………..J.
NEW DELHI; (S.A. BOBDE)
October 4, 2013
———————–
11

 

 

 

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