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Praveen (Officer)     07 June 2015

Abuse of section 354 ipc

A woman filed a false case of “Stalking” u/s 354D/34 on me and my office colleagues. I was arrested by the police and got bail after 5 days of judicial custody. And after that I filed an application u/s 156(3) and the honorable court directed the police to register an FIR against that women u/s 384/406.

 

Delhi police filled the charge sheet in the main case (u/s 354D), In which they said the mobile phone (Used in Staking) was recovered from me. Whereas the fact is

 

1) This mobile phone belongs to one of my colleagues

 

 

2) I was produced by the Ct. in the PS at 11.00 (as per Tehrir)

 

 

3) As per the call details appended by the IO with the report, this mobile worked lastly till 11.30 from different locations, despite the fact that I was apprehended by the Ct. before 11:00 PM.

 

 

 

(We have also referred this fact to the honorable court during our 156(3) applications and court made a note of this)

 

 

In the view of above, we have filled an application under 173 (For re- investigation) and the arguments are pending for the next date (NODH)

 

 

Now, I would request your expert suggestion on the following:

 

1) Can we approach High for quashing the said FIR or wait till the charge is framed? Or argument for the charge based on the given below true facts.

 

         a. She is a habitual complainant and involved in 17 cases. In some cases she is complainant   

            (u/s 376, 376D, 354 etc..) and some are against her mainly extortion under section 384.

 

         b. She is presently in Tihar jail in FIR no 126/13 under 384/406 till date

 

         c. Statements proposed accused of (woman) in FIR start with averment of proposed accused    

            that she is working in XYZ hospital as a nurse which she claimed in my FIR.

 

         d. Location scrutiny details of mobile phones ( Myself, my colleagues and complainat) shows   

             that all the towers on which they talked are not same.   

 

         e. Statement of proposed accused under section 164 in the said FIR is different which is entirely

            different in the FIR and false.

 

2) Are there any provisions for internal inquiry / complaint / further escalation or file a case against the IO for doing unfair investigation and planted the mobile phone. To frame false claim for innocent people and supported other colleagues for undue advantage.

 

Plesae help.



Learning

 4 Replies

Kundan Kr. Singh (Advocate)     07 June 2015

wait for charge sheet.

SAINATH DEVALLA (LEGAL CONSULTANT)     07 June 2015

If the mobile records are true U are on the safe side as per the timings mentioned by U.One more thing is she is in jail presently and has a previoius record of various criminal cases.How was the mobile phone belonging to UR friend recoverred from U?Wait and see for the proceedings to start.

saravanan s (legal advisor)     08 June 2015

wait for the charge sheet to be filed.copy of the chargesheet and fir would be supplied free of cost and  after discussing with your lawyer file for quashing in the high court

Nitish Banka (lawyer)     30 June 2018

Posted by: Nitish Banka  Categories: Uncategorized 
 

 

Misuse of Section 354 ipc: Alarming for Indian men

The term “outraging the modesty of women” is not defined in 354 ipc.

“Even if you keep your hand on the shoulder of a woman, it is for the lady to comment on the nature of the touch, whether it was friendly, brotherly or fatherly,” said Bombay High Court Justice Naresh Patil, ruling against Machindra Chate’s appeal urging the court to squash an FIR filed under Section 354 IPC of the Indian Penal Code.

This seemingly pro-women pronouncement ought to hearten those of us concerned about s*xual harassment, except it does not.

The problem here is that even the bare facts of the alleged crime committed by Chate do not appear to rise to the level of a Section 354 offense. The owner of a chain of coaching classes is accused by the victim of abusing and pushing her away in “such a way that made her feel ashamed”. This inappropriate physical contact, however, occurred in the context of a heated altercation between Chate, students and their parents over syllabus-related issues — and in the presence of two other girls and a boy.

 

The question  is not of Chate’s innocence, as such. He may be guilty of straightforward assault and/or of violating Section 504 (intentional insult with intent to provoke breach of peace) — which is the other charge filed against him. The issue here is whether such an act, however criminal, meets the standard of Section 354 ipc which states: “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 descripttion for a term which may extend to two years, or with fine, or with both.”

The term “outrage the modesty” is, of course, wide open to interpretation, but the Supreme Court did offer some clarity in a 2007 judgement. The Times of India reported at the time:

For over a century courts have tried thousands for the offence of “outraging the modesty” of a woman without a precise definition of what constitutes a woman’s ‘modesty’. And now, the Supreme Court has finally defined modesty. Its definition: “The essence of a woman’s modesty is her s*x.”

The result of the labour of the Bench comprising justices Arijit Pasayat and SH Kapadia will help fill a glaring void in the Indian Penal Code, 1860, but the scope of the definition of ‘modesty’ as mentioned in Section 354 appears to go far beyond what framers of the code possibly had in mind.

“The act of pulling a woman, removing her saree, coupled with a request for s*xual intercourse…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,” the Bench said in a judgement that has drawn from several verdicts by different courts.

 

By this  standard, Chate’s alleged crime does not meet the criteria of Section 354 primarily because there is no evidence that the inappropriate contact had anything to do with the s*x of the victim. As Chate’s lawyer argued in court, “It was a scuffle, where was the intent to molest her?”

In response, the judges referred to the infamous KPS Gill who was convicted under Section 354 for slapping the posterior of Rupan Deol at a party, using his conviction to conclude, “To say there was no intention [to outrage modesty] is not possible.” It takes great judicial latitude to compare slapping a woman’s behind in a state of inebriation to shoving her in the course of an argument. And even more so to further conclude that even keeping a hand on a woman’s shoulder can be constituted as outraging her modesty — if she chooses to interpret is as such.

 

This kind of “enlightenment”—which violates the intent of the original law—does women no favours. It is precisely this kind of misuse of Section 354—both by the police who booked Chate under 354 when they had many other options and the court that has foolishly upheld the decision — that aids and abets the many misogynists who resist strengthening s*xual violence laws in this country. Much as the gross abuses of the anti-dowry act have long enabled so-called men’s rights activists to attack a much-needed law — and ignore the many victims of domestic violence.

False anti-dowry cases allow such men to play victim, and portray *all* women as conniving harridans ready to use their gender as a weapon. Cases like Chate will allow much the same to happen to Section 354, especially its revised subsections which allow a broader interpretation of s*xual offenses. But as this case shows, the blame lies not with women per se—many of whom are real victims of s*xual and domestic violence, and whom the law often fails to protect—but with the authorities who deploy the Indian Penal Code at their personal whim.

Writing on the issue of free speech (and the poor protection it receives in our courts), Suhrith Parthasarathy writes, “But, collectively, the Supreme Court’s jurisprudence in allowing speech to thrive is so poor as to make the prospect of restraining prior governmental action or more principled decisions from the lower judiciary an abandoned dream. The court seems to lack the philosophical bent of mind to consider certain rights as inviolable, as superior to the impulses of the majority.”

This inability to carefully consider the intent of the law, and assess the weight of an individual complaint afflicts our courts across the board. This is why we get a bewildering variety of verdicts which rely not on true jurisprudence but the arbitrary interpretation of the individual judge. Where one can decry s*x before marriage as immoral, the other can deem a hand on the shoulder as potentially s*xual. One set of High Court judges can overthrow Section 377 while another pair at the Supreme Court can reinstitute it with equal ease. The result is a judicial system that fails to protect the spirit and intent of the laws it is entrusted to uphold. Justice becomes just another game of russian roulette, luck of the judicial draw.

 

 

 

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