Order: 1. A Magistrate and a Public Prosecutor were involved in a sexual offence. When the story was first reported, it sounded like a charade. The characters involved are a Judicial Magistrate of. Second Class, an Asst. Public Prosecutor (‘A.P.P.’ for short) and a young woman by name Santha. The gravamen of the allegation is that the Magistrate and the Public Prosecutor in concert with each other outraged the modesty of that young lady inside the office room of the A.P.P. at Kattakada. The incident was five days prior to the Christmas Day in 1983. Next day, members of the local bar boycotted the court. On the case being registered by the police the Government deputed a senior police officer of the rank of a Dy. S.P. to investigate the case as the indicted personages held offices of great trust and honour. The case was charge sheeted, after investigation, and the trial was held before the Court of Chief Judicial Magistrate. Both the accused were convicted for the offence under S.354 of the Indian Penal Code. (A.P.P. was convicted for the said offence with the aid of S.34 of the I.P.C.) Neither the trial court not the appellate court was persuaded to show leniency in the matter of sentence. Accused were hence sentenced to undergo rigorous imprisonment for one year each. 2. Further details are these: Santha (P.W. 1) was a witness for prosecution in a theft case in the Court of Judicial Magistrate of the Second Class, Kattakada. The A.P.P. (second accused) know her earlier as he had examined her in court as a witness in the said case. A pair of ear studs, which was the subject matter in the theft case, had been ordered to be returned to Santha. On 20-12-1983 she went to the second accused's office at about 3 p.m., on being informed through a messenger that her ear studs would be delivered to her, if she would reach there in that afternoon. Second accused asked her to get into the inner room of that office and make entreaties to the Magistrate (first accused) to return the ear studs. She expressed her disinclination to go inside the rear room where the first accused alone was sitting but the second accused told her to go there and sit on the bench and assured her that there was no cause for fear. She expressed her disinclination to go inside the rear room where the first accused alone was sitting but the second accused told her to go there and sit on the bench and assured her that there was no cause for fear. With all those persuasions from the second accused she went inside. No sooner than she sat on the bench, the first accused sitting next to her started exhibiting erotic pranks towards her. He took up her eft hand and placed it on his private part. Abruptly she flinched back, but the first accused hugged her. She managed to squirm out of his libidinous hold and ran out weeping. This strange emergence of a young weeping lady attracted the attention of some people who went near her and elicited from her a short account of what happened. Next day evening she and her husband went to the Police Station and lodged a complaint. 3. Santha narrated the whole episode in her deposition as P.W.1 She was supported by P.Ws.2 and 3 who heard the account directly from her mouth, when she came out of the office building of the second accused. The Bench Clerk of the first accused's court was examined as P.W.4, but he was treated as hostile. P.W.5 proved the First Information Report registered by him. P.W.6 was the Dy. S.P. who conducted the investigation. The two courts below placed reliance on the testimony of P.Ws. 1 to 3 and found that the accused have committed the offence. 4. Sri. K.S. Rajamony learned counsel made a fervent plea for making a careful scanning of the evidence despite the concurrent findings made by two courts below. Counsel thinks that there could be chances of viewing the episode with prejudice as the personages involved are a Magistrate and a Public Prosecutor. I went through the evidence to satisfy the judicial conscience, albeit inherent limitations involved in supervisory jurisdiction, that the conclusions arrived at by the fact finding courts have not been influenced by any possible prejudice. I must bear in mind at the same time that the court should not overlook the fact that the first accused was then a sitting Magistrate and the second accused was then holding office of A.P.P. in the same court, otherwise there was no occasion for the accused to get down the lady in the office of the A.P.P. 5. I must bear in mind at the same time that the court should not overlook the fact that the first accused was then a sitting Magistrate and the second accused was then holding office of A.P.P. in the same court, otherwise there was no occasion for the accused to get down the lady in the office of the A.P.P. 5. Counsel urged that the two courts below have not properly considered the implications of the delay involved in giving First Information Statement in this case, and particularly the admission of P.W.1 that she had filed a petition to the police. No question was put to P.W.5 who recorded Ext.P1 First Information Statement whether P.W.1 filed any petition with him before giving the statement in Ext.P1. P.W.6 said that he did not come across any such petition. The delay in giving the First Information Statement to the police was explained by P.W.1 saying that she wanted to tell her husband about the incident for which she went home. Her house is situated about seven miles away from the police station. Her husband is a cooly by profession. In the light of those broad features, I am not inclined to disturb the concurrent “findings despite contentions based on P.W.1's admission and the alleged delay in giving first information to the police. 6. As for the second accused, the learned counsel made a strenuous contention that he cannot be roped in with the help of S.34 of the Penal Code. To bolster up the contention, counsel characterised P.W.1's version (that the second accused sent a messenger soliciting her presence in his office) as a canard. It was pointed out that the messenger was not traced out during investigation and the paper slip which the messenger gave to P.W. 1 was not brought on record. Revisional jurisdiction cannot justifiably be used to jettison the testimony of P.W.1 merely on account of failure of the investigating officer in tracing out he identity of that messenger. If that investigating this, no blame can be hurled at him. The paper slip could have been called for by the defence, if any importance is to attached thereto. 7. Revisional jurisdiction cannot justifiably be used to jettison the testimony of P.W.1 merely on account of failure of the investigating officer in tracing out he identity of that messenger. If that investigating this, no blame can be hurled at him. The paper slip could have been called for by the defence, if any importance is to attached thereto. 7. The facts proved as against the second accused in this case are: (1) he sent for Santha and informed her to come to his office in the afternoon of the particular day; (2) he allowed the Magistrate to sit inside the inner room of his office. (That room was not used for any office work, and it was in the extreme rear end of the building wherein one can enter only from the main hall room) (3) he asked Santha to get inside that room and directed her to make an earnest entreaty of the Magistrate to deliver the ear studs to her; (4) as Santha heistated, he persuaded her to go in and sit on the bench; (5) when she went in, the second accused remained outside that room. According to Public Prosecutor, the above conduct of the second accused eloquently proclaims the common intention shared by him. On the other hand, counsel for the second accused contended that none of his acts was a criminal act and hence he cannot be fastened with constructive liability under S.34 of the Penal Code. 8. Assuming, and not conceding, that S.34 of the Penal Code is not attracted, the second accused cannot get absolved from constructive liability in view of S.37 of the Penal Code. That Section reads thus: “When an offence is committed by means of several acts, whoever intentionally co-operates in the commission of that offence by doing any one of those acts, either singly or jointly with any other person, commits that offence.” If common intention is the hub of S.34, intentional co-operation is the spindle of S.37 of the Penal Code. One who shares common intention can as well co-operative in the commission of the offence intentionally. In that sense the two sections are not contradictory to each other. The former does not necessarily exclude the latter. Co-operation in the commission of the offence need not be for the entire gamut of the offence committed. One who shares common intention can as well co-operative in the commission of the offence intentionally. In that sense the two sections are not contradictory to each other. The former does not necessarily exclude the latter. Co-operation in the commission of the offence need not be for the entire gamut of the offence committed. It is enough if he co-operates in one of the several acts which constitute the offence. 9. Learned counsel contended that the second accused cannot be convicted for the offence with the aid of S.37 of the Penal Code since the said section was not mentioned in the charge. It is axiomatic that none of the provisions inSs.34 to 38 creates any substantive offence. Those sections are included in Chapter-II of the Penal Code under the title “General Explanations” and are therefore explanatory in content. They could as well be used as rules of evidence. (Vide B.N. Srikantiah v. Mysore State B.N. Srikantiah v. Mysore State 1958 S.C.J. 918:1958 MLJ. (Crl.) 721: A.I.R. 1958 S.C. 672.‘Ss.34 to 38 of the Penal Code delineate the parameters of constructive or vicarious penal liability in different situations. Therefore it is not imperative that the charge should contain the particular section of the Penal Code with which constructive liability is fastened. At any rate that omission is not an irregularity which vitiates the conviction, if factual averments have been made in the charge for the purpose of informing the accused that his liability is constructive or vicarious for the offence committed. (Vide W. Slaney v. State of M.P. W. Slaney v. State of M.P. 1956 S.C.J. 182: (1956) 1 MLJ. (S.C,) 100: A.I.R. 1956 S.C. 116; Wasim Khan v. State of U.P. Wasim Khan v. State of U.P. 1956 S.C.J. 437: (1956) 2 MLJ. (S.C.) 9: A.I.R. 1956 10. Those apart, the evidence clearly points to common intention shared by the second accused although he was not physically present in the room where the first accused did the act. To attract S.34 of the I.P.C. it is not necessary that the particular act, detached from the other acts, shall itself be a criminal act. It is true that S.34 mentions about the doing of “a criminal act”. But that expression has to be understood in the sense in which the word “act” is defined in the Penal Code. To attract S.34 of the I.P.C. it is not necessary that the particular act, detached from the other acts, shall itself be a criminal act. It is true that S.34 mentions about the doing of “a criminal act”. But that expression has to be understood in the sense in which the word “act” is defined in the Penal Code. “The word act denotes as well a series of acts as a single act”. (S.33). Nor can it be said that absence of physical presence of the second accused in the room is sufficient to absolve him from vicarious liability. It is true that participation in action is one of the prominent features in S.34. Its essence is to be found in the existence of common intention animating the perpetrator to the doing of the act. Physical presence at the very spot is not always a necessary ingredient to attract the action. The Supreme Court decision in Shreekantiah Ramayya v. State of Bombay Shreekantiah Ramayya v. State of Bombay (1954) 55 Bom. L.R. 632) is authority for the aforesaid proposition. Vivian Bose, J. speaking for the Bench of three Judges stated thus: “He need not be present in the actual room; he can, for instance, stand guard by a gate outside ready to warn his companions about any approach of danger of wait in a car on a nearby road ready to facilitate their escape”. What is required is his sexual participation in the commission of the offence in some way or other at the lime when the crime is actually being committed. Principles when stated thus, the role attributed to the second accused and proved in this case is sufficient to fasten him with constructive liability. 11. Though the two accused are liable to be convicted for the offence, the sentence awarded to them appears to be very severe. Such a harsh sentence is sought to be justified on account of the high offices held by the accused, particularly the first accused who was a judicial officer. But there are certain other factors which cannot be sidelined when the quantum of sentence is considered. The first accused is a Harijan. I am told that he never practiced as a lawyer, but was recruited to the judiciary while he was working in the postal department. But there are certain other factors which cannot be sidelined when the quantum of sentence is considered. The first accused is a Harijan. I am told that he never practiced as a lawyer, but was recruited to the judiciary while he was working in the postal department. Another circumstance is that a petition was filed in the Sessions Court by P. W. 1 Santha informing the court that the matter has been compounded as between her and the accused. Though permission for compounding the offence was refused by the Sessions Court, the fact remains that Santha expressed that her grievance was redressed. It is reported that the first accused was removed from service and the second accused is going to be removed from the post of A.P.P. Over and above those adverse consequences, both of them were already subjected to enormous ignominy on account of this episode. Considering all these aspects, 1 am inclined to reduce the quantum of sentence. The accused are hence sentenced to pay a fine of Rs.2,000 each. In default of payment of fine, they shall suffer simple imprisonment for a period of six months each. Subject to the said modification in sentence the Criminal Revision Petitions are dismissed. Petition dismissed.