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Madhya Pradesh High Court · body

2014 DIGILAW 1602 (MP)

Nidhi Upadhyay v. State of M. P.

2014-12-04

S.K.PALO

body2014
JUDGMENT : S.K. Palo, J. 1. Heard. 2. This revision has been filed by the complainant/prosecutrix feeling aggrieved by the order dated 20.06.2013 passed by learned 8th Additional Sessions Judge, Gwalior in Sessions Trial No. 245/2013 by which the learned Trial Court has deleted the offence under Section 375(E) of IPC against the respondent No. 2 and remanded the case to learned Chief Judicial Magistrate, Gwalior under Section 228(1)(a) of Cr.P.C. for trial of offence under Sections 452 and 354 of IPC according to law. 3. Briefly stated the facts lie in a narrow compass. It is alleged that the prosecutrix lodged a complaint on 19.03.2013 that she met the respondent No. 2 Amit Basedia during coaching classes in the year 2007. She used to tie 'Rakhi' to him. The respondent No. 2 was residing with his wife and children at D.D. Nagar. Respondent No. 2 and his family were often visiting the petitioner's family. She used to call him and his wife as "Bhaiya" and "Bhabhi" respectively. Two days prior to the incident, behaviour of respondent No. 2 towards the prosecutrix changed. Therefore, on 05.03.2013 the prosecutrix had gone to his work place Madhav Pathology, Nai Sadak, to make him understand the situation. The respondent No. 2 Amit Basedia caught the prosecutrix by her hand and started to molest her. She reported this matter at Police Station Janakganj. Respondent No. 2 compromised with the prosecutrix. 4. Thereafter, on 13.03.2013 (Wednesday) at about 03:00 PM at Padav Chauraha, the respondent with bad intention caught her hand and molested her by pressing her breasts and buttocks. People around the place gathered there. Respondent No. 2 fled from the spot by his motorcycle. On her report, Crime No. 33/2013 under Section 375(E) and 376(1) of IPC was registered. Subsequently, charge-sheet was filed and the learned JMFC committed the case to the Sessions Court. 5. The case was received on transfer by the learned 8th Additional Sessions Judge, Gwalior. The impugned order was passed on 20.06.2013 stating that by Criminal Law (Amendment) Act, 2013, provision of Section 375(E) of IPC has been deleted, therefore, charge under Section 375 is not made out, hence, the case is only triable under Sections 452 and 354 of IPC. Learned 8th Additional Sessions Judge, Gwalior, remitted the case to the learned Chief Judicial Magistrate, Gwalior for trial according to law. 6. Learned 8th Additional Sessions Judge, Gwalior, remitted the case to the learned Chief Judicial Magistrate, Gwalior for trial according to law. 6. On behalf of the petitioner, the impugned order has been challenged on the ground that the order is erroneous. Section 375(e) was introduced by Criminal Law (Amendment) Ordinance, 2013 (For brevity "the Ordinance, 2013) on 3rd February, 2013 and the incident took place on 05.03.2013. "Sexual assault" has been enumerated in Section 375(E) provided in the Ordinance, 2013. Section 375(E) relates to touching the breasts of the person and Section 376(1) of IPC provides punishment for "sexual assault". 7. Learned counsel for the petitioner further advanced his arguments that this Criminal Law (Amendment) Ordinance, 2013, remained in force till the Criminal Law (Amendment) Act, 2013 came into force. It received the assent of the President of India on 2nd April, 2013 and was published in the Gazette Notification of Government of India (Extraordinary) Part-II on 2nd April, 2013. He further claimed that in Section 30 of the Amendment Act, 2013, a Repeal and Savings clause is provided, in which it is clearly mentioned that notwithstanding anything done, or any action taken under the IPC, as amended by the Criminal Law (Amendment) Ordinance, 2013, shall be deemed to have been done or taken under the corresponding provisions of amended Act. 8. It is further contended that plain reading of this provisions would give a impression that the provision of Section 375(E) provided in the Ordinance, 2013, remained in force on the date of offence. That being so, the delete of charge under Section 375(E) by the impugned order is not sustainable. 9. On behalf of the respondent/State, learned Panel Lawyer agreed with the arguments advanced by the counsel for the petitioner. 10. Per Contra, counsel for the respondent No. 2 vehemently opposed the same and submitted that the Criminal Law (Amendment) Act, 2013, which was published in the Official Gazette in the 2nd April, 2013 but in Sub-section (2) of Section 1 it has been declared that it came into force on 3rd day of February, 2013 that means the Criminal Law (Amendment) Act, 2013, has retrospective effect from 3rd February, 2013. Hence, on the date of offence, i.e., 13.03.2013, the Criminal Law (Amendment) Act, 2013, has been enforced, therefore, the Criminal Law (Amendment) Ordinance, 2013, was repealed and will have no application. Hence, on the date of offence, i.e., 13.03.2013, the Criminal Law (Amendment) Act, 2013, has been enforced, therefore, the Criminal Law (Amendment) Ordinance, 2013, was repealed and will have no application. It is argued by the learned counsel for the respondent that in a case of R.K. Garg and others Vs. Union of India and others reported in 1982 133 ITR 239 SC : (1981) 4 SCC 675 , it is observed that:- "The language used in Section 58 is both striking and significant. It does not merely provide that the orders passed under the ordinance shall be deemed to be order passed under the Act, but it provides that the orders passed under the Ordinance shall be deemed to be orders under this Act as if this Act were in force on the day on which certain things were done or action taken. Therefore the object of this section is, as it were, to antedate this Act so as to bring it into force on the day on which a particular order was passed which is being challenged. In other words, the validity of an order is to be judged not with reference to the Ordinance under which it was passed but with reference to the Act subsequently passed by Parliament." 11. Learned counsel for the respondent No. 2 also argued that the prosecutrix/petitioner presented herself before the Court and filed an affidavit before the Court below on 26.03.2013 at the time of deciding the bail application of the respondent No. 2. In the she stated that the typed complaint was signed by her on the advise of her friends against respondent No. 2. The complainant/prosecutrix is 22 years' old, literate girl, has agreed that she has family relationship with the respondent No. 2 and does not have any objection if the respondent No. 2 is granted bail. 12. Counsel for the petitioner opposing this arguments submits that at the time of deciding the bail application have any observation is made or any affidavit is filed that would not effect the facts of the case, that would only be read for the purpose of deciding the application for bail. 13. 12. Counsel for the petitioner opposing this arguments submits that at the time of deciding the bail application have any observation is made or any affidavit is filed that would not effect the facts of the case, that would only be read for the purpose of deciding the application for bail. 13. It is pertinent to note that this Court is concerned only with the legality and propriety of the impugned order and not to ponder on the different aspects of the case, therefore, the Court would refrain from commenting anything except the contents of order dated 20.06.2013. It will confine its discussion only to the extend of the impugned order. 14. It would be appropriate to extract the provision of Section 375(e) as amended by the Criminal Law (Amendment) Ordinance, 2013:- "375. Sexual assault.- A Person is said to commit "sexual assault" if that person-- (a) xxx xxx xxx (b) xxx xxx xxx (c) xxx xxx xxx (d) xxx xxx xxx (e) touches the vagina, penis, anus or breast of the person or makes the person touch the vagina, penis, anus or breast of that person or any other person." Except.............. 15. The penal provision for the offence is prescribed in Section 376 of IPC. Section 376 of the said Ordinance reads as follows:- "376(1) Punishment for sexual assault.--(1) Whoever, except in the cases provided for by sub- section (2), commits sexual assault, shall be punished with rigorous imprisonment of either description for a term which shall not be less than seven years but which may extend to imprisonment for life, and shall also be liable to fine." 16. This Ordinance came into force from 3rd February, 2013. The Criminal Law (Amendment) Act, 2013, came into force on 3rd day of February, 2013 that is retrospectively whereas it received the assent of the President of India on 2nd April, 2013 and was published on the same day in the Official Gazette of India and has been retrospectively applied from 3rd day of February, 2013. 17. It would be essential to understand the position by quoting Section 30 of the Criminal Law (Amendment) Act, 2013:- "30. Repeal and savings.-(1) The Criminal Law (Amendment) Ordinance, 2013 (ord. 3 of 2013) is hereby repealed. 17. It would be essential to understand the position by quoting Section 30 of the Criminal Law (Amendment) Act, 2013:- "30. Repeal and savings.-(1) The Criminal Law (Amendment) Ordinance, 2013 (ord. 3 of 2013) is hereby repealed. (2) Notwithstanding such repeal, anything done or any action taken under the Indian Penal Code (45 of 1860), the Code of Criminal Procedure, 1973 (2 of 1974) and the Indian Evidence Act, 1872 (1 of 1872), as amended by the said Ordinance; shall be deemed to have been done or taken under the corresponding provisions of those Acts, as amended by this Act." 18. Conjointly reading Sub-section (1) and (2) of Section 30 of the Criminal Law (Amendment) Act, 2013, it is clear that whatever action taken under the Indian Penal Code as amended by the Ordinance shall be deemed to have been done or taken under the corresponding provisions of the Act, as amended by this Act. That means, during the period when the Criminal Law (Amendment) Ordinance, 2013, was in force from 3rd February, 2013 till 2nd April, 2013. This has been validated and those actions, if taken during this period, cannot be held as invalid. Whatever action taken under the Ordinance would remain as valid. Had the offence taken place before the Ordinance was enforced, the impugned order could have been very well be proper. In the above legal position the order impugned is not proper and is therefore liable to be set aside. 19. Allowing the revision under Section 397 read with Section 401 of Cr.P.C., it is ordered that:- (i) Order dated 20.06.2013 is set aside. (ii) Criminal Case be renumbered in S.T. No. 245/2013 and be proceeded in accordance with law. (iii) Learned CJM/Court concerned where the criminal case is pending is directed to send the criminal case to the Court of 8th ASJ, Gwalior. 20. With the aforesaid observations and directions, this revision stands allowed.