Analysis of Section 354/355 of IPC


Chapter 1

 

Analysis Of Section 354 And 355 Of The Indian Penal Code

 

Section 354 deals with use of assault or criminal force to a woman with intent to outrage her modesty. It says “Whosoever 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 of term which may extend to two years or with fine, or with both.”[1]

 

·      Classification of Offence.-The offence under this section is cognizable, bailable, compoundable with permission of the Court, pending and triable by any Magistrate.[2]

 

Section 355 deals with use of assault or criminal force with intent to dishonour person, without grave provocation. It says “whosoever assaults or uses criminal force to any person, intending thereby to dishonour that person, otherwise than on grave and sudden provocation given by that person, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.”[3] 

 

·        Classification of Offence.-The offence under this section is non-cognizable, bailable, compoundable and triable by any Magistrate.[4]

 

Grey Areas Under These Sections:-

·      The Section 354 mentions ‘to outrage modesty of woman’ but the section does not define what modesty is? ‘Outrage the modesty of woman’ is a vague term. What can be termed as modesty for one woman, need not necessarily be the same for some other woman.

Further, the meaning of molestation makes an assault on a woman, culpable only if it is done with the intention of outraging her modesty. In absence of an extensive definition of ‘modesty’ and ‘intention of outraging’, courts have displayed a patriarchal mindset in dealing with the victim. Also, the offence of rape defined in section 376 of IPC is constituted only when ‘penetration’ is present.  Hence, the grey area lies between section 354 and section 376?  Courts often rely upon technicality of the absence of ‘penetration’ and impose a relatively minor punishment of imprisonment up to two years for molestation.

The court tried to define the term ‘outraging the modesty of woman’ in the case of Aman Kumar vs. State of Haryana[5], saying the act of pulling a woman, removing her dress coupled with a request for sexual intercourse, is such as would be an outrage to the modesty of a woman, and knowledge that modesty is likely to be outraged, is sufficient to constitute the offence.

Also in the case Rupan Deol Bajaj vs. K.P.S. Gill[6] the court said that since the word ‘modesty’ has not been defined in the Indian Penal Code, dictionary meaning was looked upon. According to Shorter Oxford English Dictionary (3rd Edn.) modesty is the quality of being modest and in relation to woman means “womanly propriety of behaviour, scrupulous chastity of thought, speech and conduct”[7]. In relation to woman, the term ‘modest’ in the same dictionary is defined as “decorous in manner and conduct; not forward or lewd; shamefast”.

 

·        This section provides an edge to a woman who wants to settle her personal scores or is egocentric. A woman can abuse this section under the pretext of outraging her modesty even on simple grounds of unintentional touching, pulling in a crowded place etc. In the case, M A Nayeem Farooqui vs. State of Andra Pradesh [8], the alleged Mr. Farooqui was arrested for offence under Section 354  on a false complaint lodged by Ms.Jabeena that he abused her, caught hold of her hand and threatened to pull her sari. Mr.Farooqui was arrested and imprisoned for more than one month. Mr.Farooqui underwent torture and was also termed as mentally ill, and forcibly sent to mental hospital.. It was later proved that Mr.Farooqui was innocent and let free.    

 

   Also in the case Ram Das vs. State of West Bengal[9] a railway officer who was  forcibly trying to secure a berth, occupied by a lady and her baby was accused for committing offence under Section 354 and was sentenced with two years of imprisonment. The matter was brought to Supreme Court and it said that the most serious allegation against the appellant was that he forcibly held the two ladies to his chest thereby trying to outrage the modesty of two women in the presence of two gentlemen which is so unnatural, that there must be clear and unimpeachable evidence before it can be accepted.

 The Supreme Court held that appellant being a railway employee; it was his duty to behave courteously to passengers. His conduct in forcibly trying to occupy the seat occupied by a lady and her baby and assaulting her when she resisted, called for censure. Appellant was held guilty of assault[10] but not with an intent to outrage modesty. A sentence of three months rigorous imprisonment was awarded by SC, the maximum sentence permissible under Section 352 and acquitted the charge under Section 354.

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·   Also the maximum punishment for offences under Section 354 and 355 can be two years or fine or both[11]. The specification of term of punishment is unfair as the offences committed can be grievous and liable for a punishment for a term of more than two years.

 

It was seen in the case Girdhar Gopal vs. State[12], the applicant who is a Pujari took a nine year old girl to his home under the pretext of giving “Prashad”, made her lie on the bed, put a covering on her and then sat upon her. He then became naked and asked the girl to remove her clothes. Later the girl’s brother and neighbours rescued the girl. The accused was found to have committed offence under Section 354 and was sentenced to one year imprisonment. In this case, offence is committed on a minor girl and that too by a Pujari who are highly respected and considered to be pious people. With the relevance to facts the accused should have been punished with more rigorous imprisonment and with significant amount of fine.

       

Till date many amendments have been made but no specific amendments have been made under this section..

The state of Andra Pradesh however took an initiative in 1991 by following substitution for Section 354, “Assault or criminal force to a woman with intent to outrage her modesty.-Whoever assaults or uses criminal force to a 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 shall not be less than five years but which may extend to seven years and is liable for fine:

Provided that the Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term which may be less than five years, but which shall not be less than two years.”[13]

 

Landmark Judgments :-

The term ‘woman’ is very unclear and controversial. Does it include woman of all ages, right from a newly born baby to an elderly octogenarian woman? Are mentally disordered, physically challenged, woman under anaesthesia etc included?

 

·        In landmark case State of Punjab vs. Major Singh[14] a three judge SC bench decided, injury to vagina of a female child of seven and half months can hold accused guilty of outraging modesty under Section 354.

The judge Sarkar, C.J interpreted that an act done with the intention or knowledge that it was likely to outrage the woman's modesty be considered along with female’s reaction. Females of all age do not possess modesty, which can be outraged and dismissed the appeal.

The second judge Mudholkar, quoted ‘modesty’ as not referring to a particular woman but to the accepted notions of womanly behaviour and society. Whether female has capacity to understand or not is immaterial, allowed the appeal and held conviction under Section 354. As per the third judge Bacbawat, J. the expression "woman" denotes a female human being of any age. The culpable intention to outrage the modesty being the bottom line of the matter and agreed with the order of Mudholkar.

 

·        In yet another landmark case Rupan Deol Bajaj v K.P.S. Gill[15] a DGP who slapped on the posterior of lady IAS was accused of outraging modesty.

 A compliant was filed. Later revision complaint under Section 482 of the Cr.P.C[16] was filed which was quashed by High Court. The prosecutrix challenged it, SC directed Chief Judicial Magistrate to take cognizance.

 

Trial found accused guilty under Section 354, 509 IPC and sentenced imprisonment with fine. In an appeal, Sessions Judge confirmed conviction, altered the sentence releasing accused on probation with fine enhanced to Rs. 50,000/-. On challenging this, the HC did not interfere with the conviction but enhanced fine to Rs. 2, 00,000/- .This too was challenged.

 

The SC did not set aside the findings of the various courts and observations of HC  as it had set an example and enhanced the faith of a common man in judiciary. As accused had completed the period of probation without any complaint or violation, so no other punishment was warranted and appeal dismissed.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Chapter 2

 


A Defiance of Constitution?

·   The offence under Section 354 is committed only when a person assaults or uses a criminal force to a woman, intending to outrage or knowing it to be likely that he will outrage her modesty[17].The section mentions the pronoun ‘he’ which implies that offences are committed only by a man. A woman can also assault or use criminal force to any other woman as equally and effectively as any man; and the intention or knowledge that the modesty of the woman assaulted or against whom criminal force had been used will be outraged, is not of a kind which a woman on account of inherent differences from man is incapable of having. Now the Article 14 of our constitution provides that the state shall not deny to any person equality before the law in Section 354 the use of pronoun “he” in the expression “that he will thereby outrage her modesty” makes the offences limited only to man, thus going against the constitution.

 

Also the Article 15(1) of Indian Constitution says that the state shall not discriminate against any citizen on the grounds only of religion, race, sex, and place of birth or any of them[18]. As the legislature has discriminated in favour of women only on the ground of sex, Section 354 therefore offends Article 15(1).   

·   The Court has however given judgment saying that Section 354 doesn’t violate Article 14 and 15(1) of Indian Constitution. In the case Girdhar Gopal vs. State of Madhya Pradesh[19] said that the pronoun “he” used in the Section 354[20]  must therefore be taken under Section 8 of Indian Penal Code as importing a male or female. Court made it clear that that a man as well as woman can be held for offences committed under Section 354.

 The Court also adjudicated that Section 354 does not violate the provisions of Article 15(1) of the Constitution. The use of word “only” in Article 15 is important and it emphasizes the fact that discrimination that is prohibited under this article is a discrimination based on the ground of sex, or race, etc. alone. If the discrimination is based not merely on any of the grounds stated in Article 15(1) but also on public morals, ethics, decency, decorum and rectitude, the legislation containing such discrimination would not be hit by the provisions of Article 15(1)..    

 

Comparison with Laws of England:-

English laws are very clear. The definition of minor terms such as a penetration, assault, touching etc is provided distinctly. For example a clear definition of touching is provided which says touching includes touching with any part of the body, with anything else, or through anything and in particular includes touching amounting to penetration[21].Outraging the modesty of woman has been included in Sexual Offences. 

Separate laws are enacted for Sexual Offences against children below the age of 13[22], Causing or inciting a child to avenge in Sexual Activity[23], Sexual Activity with a mentally disordered person[24], Sexual Activity at work place[25] etc are present.

English law clearly states harsh punishments for offences by police officers, teachers, doctors, elite officials etc while on duty. There have been cases where Court has awarded damages of $100,000 to $300,000[26]. Very few such provisions have been provided under our laws. Sexual offences against women at workplace are reported in our country too but there is absence of apparent and precise laws except Supreme Court’s Vishakha Guidelines[27]. 

 

 

 

Chapter 3

 


Comments:-

A person slapping on the posterior of lady was found guilty though the section does not specify whether such an act can be considered as an offence. Had the defendant still been guilty if he had slapped some other part of the body?

             

Also it is difficult to understand how the offences under Section 354 and 355 are termed as compoundable[28]. How can mutual understanding take place when somebody’s modesty is outraged or person is dishonoured? Making these offences compoundable may help the accused to silence the prosecutor by use of money, force or position.

Yet again State of Andra Pradesh had taken an initiative and removed the term compoundable from Classification of Offence of Section 355 by an amendment[29].

 

Moreover the term cognizable and non-cognizable in these sections are also contentious. Offences under section 354 are cognizable[30] whereas, offences under Section 355 are non-cognizable[31]. Just because the offences under Section 354 are against women the police can exhibit its clout by arresting accused without a warrant. Why are the offences under Section 355 also non-cognizable? Is there a need for such discrimination? The Constitution says that state shall not discriminate on basis of race, religion, sex etc[32], but there seems to be clear discrimination.

 

 

 

Reforms Required :-

            There is a definite need to bring reforms in Sections 354 and 355. A clear and specific explanation of term ‘woman’ (specifying age, physical and mental condition of woman) should be provided. The term ‘outraging the modesty of woman’ should be specifically explained. Also a single clear and distinct definition of the term ‘modesty’ should be followed by the Courts.

 

Offences under both the Sections should be made non-bailable and non-compoundable. As done by State of Orissa, by an Act[33] the word ‘bailable’ is substituted by ‘non-bailable’ under Section 354.

 

The specification of terms of imprisonment for offences committed under these sections is unfair and it should be made flexible looking into the gravity of the case.

Precise laws with clarity as in England should be enacted.

 

 

 

 

 

 

Conclusion

The judicial decision making is done in the "laboratories" of the lower courts which have two options: fall back on traditional rules of practice, or make a rather uneducated guess as to how to proceed in a new direction. The first course halts the evolution of  practice and legal doctrine; the second inevitably leads to inconsistency in decisions. The dilemma in both the situations becomes more awkward, in the absence of a liberal and expansive definition of ‘modesty’ and ‘intention of outraging’, under Section 354. The law needs to be precise and crystal clear in its definition, as the modern society relies heavily on law. The law should not fail to achieve the goals enshrined in the constitution for the emancipation of women in India and should fully protect her from sexual predators or else woman justice will be a fragile myth.



[1] Indian Penal Code 1860, s.354. (hereinafter IPC 1860)

[2] Id.

[3] IPC 1860, s.355

[4] Id.

[5] A.I.R. 2004 S.C. 1497.

[6]   (1995) 6 S.C.C 194: 1995 S.C.C. (Cri) 1059,See discussion infra pg.8

[7] See Collins Cobulid Advanced Learners English Dictionary 922(4 ed.,2003);See Generally Collins English Dictionary 1047(7th ed.,2005)

[8] 1998(1) A.L.D. 103

[9] A.I.R. 1954 S.C. 711: 1954 Cr L.J. 1793

[10]             IPC 1860,s.352

[11]             Supra note 1.

[12]             A.I.R. 1953 Madh. B. 147, overruled in State of Punjab vs. Major Singh, Lachman Singh, A.I.R. 1967 S.C. 63, See explanation infra pg.10

[13]             Andra Pradesh Act 6 of 1991, section 2.

[14]             A.I.R. 1963 S.C. 63; See Also Major Singh Lachman Singh v. State, A.I.R. 1963 Punj.443; overruled in Emperor v. Tatia Mahadev, 14 Bom.L.R. 961.

[15]             (1995) 6 S.C.C. 194: 1995 S.C.C. (Cri) 1059.

[16]          The Code of Criminal Procedure,1973,s.428

[17]             Supra note 1

[18]             The Constitution of India,1950,art.15

[19]             A.I.R. 1953 Madh. B. 147

[20]             Supra note 1.

[21]             Sexual Offences Act 2003 s 79(1), (8).

[22]             Id s 10(1) (a).

[23]             Id s 8(1) (a).

[24]             Id s 30(1) (c).

[25]             Id s 38(1) (a).

[26]             See Ikram v. Waterbury Bd. of Educ., No. 3:95CV2478, 1997 WL 597111, at 1; See Also Tiffany & Co. v. Smith, 224 AD 2d 332, 638 NYS 2d 454.

[27]             A.I.R. 1997 S.C. 3011

[28]             Supra note 1; See Blacks Law Dictionary,304(8th ed.,1999); See Also Concise Law Dictionary,224(3rd ed.,2006)  

[29]             Andra Pradesh Act 3 of 1992, section 2(w.e.f. 15-2-1992)

[30]             Supra note 1.

[31]             Supra note 3.

[32]             The Constitution of India,1950,art.15

[33]             Orissa Act 6 of 1995, section 3(w.e.f. 10-3-1995)

 

 

 

 

 



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