By Shaurya Raj
Published on: March 24, 2022 at 10:00 IST
We live in the 20th Century and everyone should have rights, people are coming out as different genders. India is also changing and is accepting LGBTQ Rights, Women Rights, but there is still a long way to go in safeguarding women as even today despite being aware many people indulge in outrages act and do not even think twice before indulging in these types of acts.
Every day we look into a newspaper or open up a news channel there is at least one news which pertains to offence against a woman in the news if not several.
Women should be aware about their Rights, so that they can safeguard themselves with law, even though it is a job of everyone in a Society to maintain the sanctity of a women and respect them but many people still don’t understand this .
India has ascertained a few provisions in law for safeguarding women like Section 312, 313, 314, 304, 354, 509, 354A, 354B, 354C, 354D, 494, 498, 498A of IPC and many more provision for protecting a women’s right .
In this article we are only going to dwell into a specific section i.e 354 which pertains to outraging the modesty of a women.
Section 354 (Indian Penal Code)
- Use of assault or Criminal force against a Woman.
- Intention of the accused to outrage the modesty of the women or knowledge that his act is most likely to outrage the modesty of the women.
The Supreme Court in one of its judgements has referred to ‘Modesty’ as feminine decency and a virtue that women possess owing to their gender.
It is also important to note that in cases like these the offence is not proved merely by the fact that the accused committed an act that outraged the modesty of the victim, it would be considered an offence under this section only when the accused intended or had the knowledge that his actions are most likely to outrage the victim’s modesty.
The applicability of section 354 varies from case to case as the courts are aware of the fact that such charges are easy to make and it is very difficult for a man to rebut the same.
Independent witness may not be available at all the times as there can be instances where a person has done such an act in private.
That is why, the courts have been consistent with the observation that the same may be verified by the surrounding circumstances and the oral evidence of the victim must inspire confidence, i.e it should be convincing and reliable.
Meaning of Evidence: What is the meaning of Evidence under the Indian Evidence Act 1872?
In this case the Supreme Court while holding the accused guilty under Section 354, observed that when any act done to or in the presence of a woman is clearly suggestive of sex according to the common notions of mankind that act will fall within this Section.
The essence of a Women’s modesty is the essential ingredient of this section.
The culpable intention or knowledge of the accused is the crux of the matter.
The reaction of the women is very relevant , but its absence is not always decisive, as for example, when the accused with a corrupt mind stealthily touches a woman who is sleeping at that moment.
She might be in deep sleep or for the matter under the spell of anesthesia or unable to acknowledge the intention behind the said act because of these factors and the accused will still be liable.
This is an interesting case in this context. The brief facts of the case are the Petitioner was an IAS officer who was called to the IG office, the accused.
The accused patted the complaints back. IG was accused under Section 354 for such an offence.
The judgement was that the court directed the learned Magistrate, Chandigarh to take cognizance upon the police report in respect of the offences under Sections 354 and 509 IPC and try the case himself in accordance with law.
A recent growing trend is filing of frivolous and bogus complains.
As is with most of the False and Malicious Complaints, such complaints are also mostly exaggerated versions of the sudden fights or are pure fragments of imagination.
The inconsistencies in the FIR and during the trial in cases under section 354 are one of the facts leading to acquittal of the accused.
Some incidents mentioned in the FIRs are so bizarre that no man of ordinary prudence would believe it. Also, nowadays it is often seen that unscrupulous women cry molestation.
Therefore, to put such cases at rest, the Bombay High Court held:
“ The test will be whether a reasonable man will think that the act of the accused was intended to or was known to be likely to outrage the modesty of the women, if a quarrel takes place suddenly, for which both parties are more or less to be blamed, then, by no stretch of imagination can it be held that in the resultant scuffle between the quarrelling parties, the accused persons either intended or knew it to be likely that they will thereby outrage the modesty of women.”
In this regard , the Supreme Court has stated that the approach that ordinarily a lady would not put her character at stake may not be wrong but the same cannot be applied universally .
Each case has to be determined on the touchstone of the facts and the circumstances surrounding it as the law reports are replete with decisions where charges under section 376 (Rape) and section 354 (Outraging the Modesty of Women) of IPC have been found to be falsely advanced
Essentials of the Section
The Necessary Components which need to be established by the person who is filling the case i.e., the prosecution, so that the offence can be made out under this section
- The Person who has been maltreated, should be a Woman
- The Person Affected should be a Woman
Under the Indian Penal Code laws assaulting or using illegal force on a man with the purpose or knowing of ‘ Outraging his modesty ‘ is not considered a criminal offence
The issue before the Court was is this (man being excluded in the section) violation of Articles 14 and 15, also the constitutional legitimacy of section 354 was questioned.
The said Petition was dismissed and Mr. Girdhar Gopal was convicted under the section 354 and 342, of IPC.
- The Aggrieved Women were assaulted or subjected to Criminal Force
The prosecution bears the burden of proof in proving that the accused’s actions constituted assault or criminal force, as defined in Section 351 and 350 of the Indian Penal Code,
Section 350 of IPC: Whoever intentionally uses force to any person, without that person’s consent, in order to the committing of any offence, or intending by the use of such force to cause, or knowing it to be likely that by the use of such force he will cause injury, fear or annoyance to the person to whom the force is used, is said to use criminal force to that other
Section 351 of IPC: 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 gesture or preparation is about to use criminal force to that person , is said to commit an assault.
Thus, a close perusal of the section implies that an intentional use of force or any gesture apprehending the person concerned forms the gist in the commission of these offences
- The defendant did the said act with proper intent and had full knowledge that he was likely to offend the modesty of the women . One of the most important ingredients of this section are knowledge and intent. The criminal mindset or mens rea should be present in the accused to make it criminal offence. Therefore, it becomes pertinent to prove that such intention or knowledge existed on the part of the accused. Mere proof of the fact that the women felt that her modesty had been outraged would not satisfy the necessary ingredient of the offence.
Case laws explaining ‘Outraging the Modesty of a women’
In the case of Raju Pandurang Mahale Vs. State of Maharashtra, the Supreme Court inferred the essence of the woman’s modesty as her sex.
The judgement defined ‘modesty’ as ‘an attribute associated with female human beings as a class and a virtue which attaches to a female owing to her sex’.
Since the word ‘modesty’ has not been defined in the Penal Code, the judgement quoted the definition as in Shorted Oxford Dictionary in relation to a woman.
In another case of Ankariya Vs. State of Madhya Pradesh, the question was raised that whether the act of the offender of loosening the cords of the petticoat of the prosecution and making further sexual advancements towards her constituted the offence of outraging her modesty under Section 354 or the offence to commit rape as under Section 375.
Crime against woman is on the rise and the laws which shields women from exploitation.
In spite of the existence of the Section 354 IPC, the legislature has incorporated Section 509 IPC, making punishable even a verbal attack of insulting the modesty of a women.
So, even if the situation is bleak now , the future can be better by continuous effort.
Edited by: Advocate Komal Sharma, Publishing Editor at Law Insider