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2021 DIGILAW 161 (JK)

Usha Sharma v. Tara Chand Saini

2021-04-08

SANJAY DHAR

body2021
JUDGMENT : 1. In this petition, the petitioner has challenged the order dated 08.08.2016; passed by the learned Chief Judicial Magistrate, Samba to the extent of discharging the respondent for offences under Section 354 RPC and charging him only for offences under Sections 294/509 RPC. 2. Briefly, stated the case of the petitioner is that she is working as subordinate under the control of respondent in M/s Uflex Pack Limited. It is alleged that the respondent committed several acts of sexual harassment against the petitioner while she was working in the office right from the day she joined the said office in the year 2007. According to the petitioner this behavior of the respondent compelled her to lodge an FIR against the respondent in September 2015. FIR No. 143 of 2015 for commission of offences under Sections 294/293/354/509 RPC came to be registered in Police Station, Bari Brahmana and the investigation of the case was set into motion. After the investigation of the case, the police found offences under Sections 294/354/509 RPC established against the respondent and, accordingly, challan was laid before the Court of learned Chief Judicial Magistrate, Samba. Learned Magistrate after hearing the parties and considering the material on record, passed the impugned order dated 08.08.2016, whereby respondent has been charged for offence under Sections 294/508 RPC, but at the same time the learned Magistrate has held that ingredients of offence under Section 354 RPC are not made out and, accordingly, respondent has been discharged of the said offence. It is this order which is under challenge before this Court. 3. It has been contended by learned counsel for the petitioner that allegations made in the challan which are supported by the statements of the witnesses recorded under Section 161 Cr.P.C., clearly establishes that besides offences under Sections 294/509 RPC offence under Section 354-A Cr.P.C. is also made out against the respondent, but the learned Magistrate has, by ignoring the material on record, proceeded to frame charges for offence under Sections 294/509 RPC only against the respondent. 4. A perusal of the impugned order reveals that the learned Magistrate has, while considering the challan filed by the police against the respondent, adopted the procedure provided for trial of warrant cases by the Magistrates. 4. A perusal of the impugned order reveals that the learned Magistrate has, while considering the challan filed by the police against the respondent, adopted the procedure provided for trial of warrant cases by the Magistrates. Section 251-A of Jammu and Kashmir Code of Criminal Procedure, which is applicable to the instant case, provides the procedure for considering the question of charge/discharge of accused in a case instituted on a police report. sub-sections (1), (2)&(3) of Section 251-A J&K Cr.P.C. are relevant to the context and the same are reproduced as under:- "251-A. Procedure to be adopted in cases instituted on police report.-(i) When, in any case instituted on a police report, the accused appears or is brought before a Magistrate at the commencement of a trial, such Magistrate shall satisfy himself that the documents referred to in section 173 have been furnished to the accused, and if he finds that the accused has not been furnished with such documents or any of them, he shall cause them to be so furnished. (2) If, upon consideration of all the documents referred to in section 173 and making such examination, if any of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge him. (3) If, upon such documents being considered, such examination, if any being made and the prosecution and the accused being given an opportunity of being heard, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this Chapter, which such Magistrate is competent to try, and which, in his opinion, could be adequately punished by him, he shall frame in writing a charge against the accused." 5. From a perusal of the aforesaid provision it become clear that if upon consideration of the documents referred to in Section 173 Cr.P.C., a Magistrate considers the charge against the accused to be groundless, the accused has to be discharged, whereas in case the Magistrate is of the opinion that there is ground for presuming that accused has committed an offence which the Magistrate is competent to try, a charge in writing has to be framed against the accused. Thus, the basis for framing of charge or discharging of an accused is the report of the police and material attached thereto. In order to determine the merits of the contention of learned counsel for the petitioner it is, therefore, necessary to have a look at the contents of the challan and the statements of the witnesses recorded under Section 161 Cr.P.C. 6. In the written complaint, on the basis of which the FIR came to be lodged against the respondent, the petitioner has inter alia alleged that right from the day she joined the services under the subordination of respondent in the year 2007, the respondent used to pass sexually coloured remarks against her. She has further alleged that in September, 2008 when respondent was promoted as Manager of the Company he assumed more powers whereafter he started touching the hands of the petitioner and some times he would touch her back shoulders. She has went on to allege that in the year 2010-11, when the respondent was promoted as a Senior Manager, he became more bold and he would offer the petitioner to sit on his thigh and would also pass sexually coloured remarks against her. She has further alleged that respondent would even watch illegal sites on the internet in the office. Lastly, it has been alleged in the compliant that during the past few months the behavior of the respondent had become aggressive and he would pass wrong comments against the petitioner, thereby creating a hostile working atmosphere for her. These allegations have been reiterated by the petitioner in her statement recorded under S.161 Cr.P.C. 7. The question now arises as to what offences are made out from the statement of the petitioner recorded under Section 161 Cr.P.C., which is the basis for framing charges against the respondent. The petitioner, as already noted, has alleged that the respondent would pass sexually coloured remarks against her in the office which is admittedly a public place. Thus, there can be no dispute to the finding of the learned trial court that offence under Section 294 RPC is made out against the respondent. Similarly, the acts alleged against the respondent would also come under the purview of Section 509 RPC. 8. According to the petitioner apart from aforesaid offences certain other offences are also made out against the respondent. Similarly, the acts alleged against the respondent would also come under the purview of Section 509 RPC. 8. According to the petitioner apart from aforesaid offences certain other offences are also made out against the respondent. It has been contended by learned counsel for the petitioner that there are clear allegations of sexual harassment of the petitioner by the respondent contained in her statement, as such, offence under Section 354-A RPC is also made out against the respondent. 9. The contention of learned counsel for the petitioner appears to be full substance. A perusal of the material on record shows that the acts of sexual harassment at working place which come within the purview of S.354-A RPC have taken place right from the year 2007 and continued right upto the year 2015 when the FIR came to be lodged. Therefore, offence under Section 354-A RPC is made out on the basis of the material on record, and the respondent was required to be charged with the said offence as well. 10. Apart from the above, a careful analysis of the allegations made by the petitioner in her complaint and the statement would show that she has not only alleged that respondent was causing sexual harassment to her in the office, but she has also alleged that the respondent would touch her hands and sometimes touch her back shoulders. According to the learned Magistrate the alleged acts do not fall within the purview of Section 354 RPC. 11. I am afraid the aforesaid conclusion drawn by the learned Magistrate is not legally correct for the reason that mere touching a woman with intent to outrage her modesty would qualify to an offence under Section 354 RPC. In order to explain this it will be apt to reproduce S.354 RPC, which reads as under:- "354. Assault or criminal force to woman with intent to outrage her modesty.-Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both". 12. Assault or criminal force to woman with intent to outrage her modesty.-Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both". 12. From a perusal of the aforesaid provision, it is clear that in order to frame a charge for offence under Section 354 RPC the following essentials must be present:- (i) there must have been assault or use of criminal force on a woman; (ii) such assault or use of criminal force must have been made with intention to outrage her modesty or with knowledge that her modesty is likely to be outraged; 13. In the instant case, it is alleged by the petitioner that the respondent put his hand on her back shoulders and he also touched her hands which was resisted by her. The touching of back shoulders of a woman or touching her hand would fall within the definition of assault as contained in Section 351 RPC. It reads as under: “Whoever, makes any gesture, or any preparation, intending or knowing it to be likely that such gesture or preparation will cause any person present to apprehend that he who makes that he who makes that gesture or preparation is about to use criminal force to that person, is said to commit an assault." 14. The afore quoted provision clearly provides that even making a gesture or any preparation intending or knowing it that such gesture or preparation will cause any person to apprehend that criminal force is likely to be used against him, amounts to an assault. Thus, for commission of assault use of actual force is not necessary. Even a gesture which creates apprehension that criminal force would be used against a person is enough to make out a case of assault. To place hands on the back shoulders of a woman or touch her hands would amount to assault with intention to outrage the modesty of that woman in the Indian culture particularly, when the woman resists the same. 15. The word modesty has been defined by the Supreme Court in leading case of Mrs. To place hands on the back shoulders of a woman or touch her hands would amount to assault with intention to outrage the modesty of that woman in the Indian culture particularly, when the woman resists the same. 15. The word modesty has been defined by the Supreme Court in leading case of Mrs. Rupan Deol Bajaj and another vs. Kanwar Pal Singh Gill, 1995 (6) SCC 194 , as the quality of being modest and in relation to woman means, womanly propriety of behavior; scrupulous chastity of thought, speech and conduct. The word 'modesty' in relation to woman is defined as decorous in manner and conduct; not forward or lewd; shamefast. 16. Thus, the act of respondent of putting his hand on the back shoulder of the petitioner and touching of her hands coupled with surrounding circumstances of passing lewd and sexually colored remarks against the petitioner would certainly come within the purview of Section 354 RPC. The learned trial court, while discharging the respondent for offence under Section 354 RPC, has clearly fallen into an error and to this extent his order deserves to be set aside. 17. For the forgoing reasons, the petition is allowed and the impugned order dated 08.08.2016, passed by the learned Chief Judicial Magistrate, Samba to the extent of discharging the respondent of offence under Section 354 RPC is set aside with a direction to the learned Magistrate to frame charges for offence under Sections 354 and 354-A RPC as well against the respondent and thereafter proceed in accordance with law. 18. A copy of this order be sent to the learned trial court for compliance. 19. The petition is, accordingly, disposed of.