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Himachal Pradesh High Court · body

1989 DIGILAW 169 (HP)

DEVINDER SINGH v. HARI RAM

1989-11-23

BHAWANI SINGH

body1989
JUDGMENT Bhawani Singh, J.—This revision petition assails the judgment of Sessions Judge, Simla, in Criminal Revision Petition No. 56-S/10 of 1987 and 9-S/10 of 1988, decided on 20-3-1989. By this decision, the court allowed the revision petition of respondent Hari Ram and set-aside the order of trial Magistrate in referring the matter for trial to the local Panchayat since the offences qua which cognizance was taken fell within its jurisdiction. The claim of the petitioner in that revision petition that offence under section 354 of the Indian Penal Code was also made out, was accepted with the result that the trial of the case stood shifted from the Local Panchayat to the court of Judicial Magistrate, Chopal. This is how the matter has been brought to this court. 2. Briefly, the case is that on 28-7-1986, the complainant preferred a complaint under sections 354, 323 and 392 of the Indian Penal Code before the Sub-Divisional Judicial Magistrate, Chopal. It was sent to the police for investigation and report under section 156 (3) of the Code of Criminal Procedure. The police registered a case against the petitioners under sections 323, 354 and 392 of the Indian Penal Code on 30-7-1986, on which date the complaint had been filed in the court. After the investigation, the police recommended action against the petitioners for offences under sections 354, 506, 323 read with section 34 of the Indian Penal Code. 3. The allegations were that the petitioners went to Government High School, Marawag, where Kumari Veena, the daughter of the complainant, was studying in tenth class. During the recess time, in pursuance of their plan, the petitioners caught hold of Kumari Veena. She was dragged and then beatings with slaps, kicks and fists were given by Devinder Singh and Prem Chand snatched her watch. The petitioners were summoned and the court passed the following order on 17-9-1987 : "I have gone through the challan. Prima facie, case is made out against the accused persons under sections 341/323/506 I.P.C. which offences are exclusively triable by Gram-Panchayat. Hence, this case is sent to Gram Panchayat Marog for trial in accordance with law. The accused persons are directed to appear before the Gram Panchayat Marog on 10-10-1987. The file be sent to that Panchayat immediately." 4. The complainant felt aggrieved by this order. He moved a revision petition before the Sessions Judge, Simla. Hence, this case is sent to Gram Panchayat Marog for trial in accordance with law. The accused persons are directed to appear before the Gram Panchayat Marog on 10-10-1987. The file be sent to that Panchayat immediately." 4. The complainant felt aggrieved by this order. He moved a revision petition before the Sessions Judge, Simla. After hearing the parties, the revision petition was allowed and it appears from the order that the Sessions Judge was influenced by the fact that the trial Magistrate, while passing the order on 17-9-1987, did not mention how the offence under section 354 of the Indian Penal Code was not made out from the police report and the documents filed therewith and no reasons to that effect had been given and in view of the documents, a clear-cut case under section 354 of the Indian Penal Code was made out against the petitioners. 5. Shri G.D. Verma, learned counsel for the petitioners, has very strenuously contended that no offence under section 354 of the Indian Penal Code has been committed by the petitioners in the light of the allegations in the complaint and the evidence collected by the prosecution in this case. Shri G.D. Verma makes reference to the statements of the prosecution witnesses including the respondent, Kumari Veena, Headmaster of the School and Kumari Vidya etc. and submits that in none of their statements, an offence under section 354 of the Indian Penal Code can be inferred. Moreover, no such allegation has been made by the respondent or Kumari Veena in the complaint to the court or during the recording of statements of prosecution witnesses. I see force in this submission of Shri G.D Verma. In none of these statements commission of offence under section 354 of the Indian Penal Code is alleged. It was not the case of the complainant in the original complaint. As a matter of fact, the allegations related to the going of the accused to the School, beating of Kumari Veena and snatching of her watch. In case, during this case, the body of Kumari Veena was touched by the petitioners- with no intention except for the purpose of beating her, an offence under section 354 of the Indian Penal Code is not made out and the assertion of Shri D.D. Sood, appearing for the respondent, complaining tins, cannot be said to be legally sustainable. In case, during this case, the body of Kumari Veena was touched by the petitioners- with no intention except for the purpose of beating her, an offence under section 354 of the Indian Penal Code is not made out and the assertion of Shri D.D. Sood, appearing for the respondent, complaining tins, cannot be said to be legally sustainable. In order to prove a case under section 354 of the Indian Penal Code, it is not enough that the woman was pushed or given beatings. It has to prove that the push or the beatings were given with intent to outrage the womans modesty or with the knowledge that it would be outraged (See AIR 1954 SC 711, Ram Das v. State of West Bengal). 6. Further, it is relevant to quote paras 15, 16 and 20 of the judgment of the High Court of Orissa, reported in 1982 Cr. L.J 19, S.P. Mallik v. State of Orissa and another : "15. While examining the question as to whether any offence has been committed by this petitioner or not it will be important to set out the ingredients of section 354 of the I.P.C. under which he has been convicted. The essential ingredients of that section are the use of criminal force or assault against a woman for the purpose of outraging her modesty. It will thus be clear that there must either be an assault or the use of criminal force. Force has been defined in section 349 and criminal force has been defined in section 350. A person is said to use force when he causes motion or change of motion or cessation of motion to another person or the above in substance, which brings it into contact with any part of the other persons body or with anything that the other is wearing or carrying, or with anything so situated that such contact affects others sense of feeling. This should be done by his own bodily power or by use of some substance or by inducing any animal to change this motion. The use of force will become criminal when it is done against the consent of any person with the intention of committing an offence or to cause injury, fear or annoyance to any person. In this case admittedly no assault was resorted to. The use of force will become criminal when it is done against the consent of any person with the intention of committing an offence or to cause injury, fear or annoyance to any person. In this case admittedly no assault was resorted to. It was, however, essential to establish that force was used for the commission of offence. In my view, by merely putting a hand on the belly of a female by itself could not be construed to indicate that the petitioner was using criminal force within the meaning of this section for the purpose of committing an offence or injury or annoyance None of these ingredients has either been proved or found. Culpable intention is an essential ingredient. The courts below have straightway presumed that all the ingredients of an offence under section 354 are satisfied simply because the petitioner put this hand on the belly of the lady. From this fact alone it cannot be inferred that the petitioner intended to commit any offence or injury or annoyance to the victim lady. At the highest, it may be an attempt to draw the attention of the lady, which proved abortive. But that cannot be said to amount to use of criminal force. There is no evidence or even allegation that any restriction was caused to the movements of the victim lady nor it appears that any criminal act was intended to be committed. Even if the incident is accepted as true, the basic ingredients of the section have not been proved. 16. In my view, the action of the petitioner cannot be held to be an act of criminality intentional and deliberate—but a pure accident for which the attitude of the lady in not filing a case is an indication. The action of the lady in immediately beating up the petitioner and not moving the Court is indicative of the fact that the lady was quite satisfied with the punishment meted out by her and she did not want to go any further in the matter. Even if the action of the petitioner was accidental, the reaction of the victim could have been the same, and, therefore, an inference of criminality cannot be based on her conduct. Even if the action of the petitioner was accidental, the reaction of the victim could have been the same, and, therefore, an inference of criminality cannot be based on her conduct. I am proceeding on the footing that the incident of beating of the petitioner by the victim lady is proved though that itself is not free from doubt, since the two corroborative witnesses, PWs. 2 and 9 have resiled from supporting the same. I, therefore, consider the incident as not proved. 20. Summing up I hold that the action of the petitioner does not amount to an offence under section 354 of the I.P.C." 7. Shri D.D. Sood, learned Counsel for the respondent, further submits that this Court may not examine the statements of the witnesses recorded under section 161 of the Code of Criminal Procedure since the statements of witnesses have yet to be recorded in the court during the trial of this case during which time the evidence of intention on the part of the petitioners can be ascertained and established. I am not impressed by this submission of the learned Counsel for the respondent for the simple reason that the court has to take into consideration the evidence collected by the prosecution in order to see whether a case of a particular nature has been committed by the petitioners when it is seized with the matter where the aggrieved party pleads for the quashing of the case initiated against it. In case the submission of Shri D.D. Sood is accepted and the statements are not taken into consideration, in that event, there will be no evidence at this stage even relating to other offences alleged against the accused-petitioners. In these circumstances, there is no difficulty in coming to the conclusion that a party can challenge an order which includes some offence for trial which, according to it, may not have been committed in view of the evidence in the case. 8. As observed above, none of the statements point out to the commission of an offence under section 354 of the Indian Penal Code and the conclusion drawn by the learned Sessions Judge in this regard is thoroughly without any evidence and the same deserves to be set-aside. 9. Accordingly, I allow this revision petition and set-aside the impugned judgment. 8. As observed above, none of the statements point out to the commission of an offence under section 354 of the Indian Penal Code and the conclusion drawn by the learned Sessions Judge in this regard is thoroughly without any evidence and the same deserves to be set-aside. 9. Accordingly, I allow this revision petition and set-aside the impugned judgment. The trial will continue relating to the remaining offences before the Gram Panchayat, in case it has the jurisdiction to try these offences. The matter will appear before the Sub-Divisional Judicial Magistrate, Chopal, who will cause the appearance of the parties before him and he will thereafter direct them to appear before the Gram Panchayat where the offences may be tried. Revision petition allowed.