Intern Sexual Harassment: Section 354 or Section 354A IPC?

The Times of India has carried a news item “If booked under Sec 354A, Ganguly may get 3 years in jail”. No doubt, under the amended Indian Penal Code, any man who commits the offence specified in section 354 A i.e. Sexual harassment, shall be punished with rigorous imprisonment for a term which may extend to three years, or with fine, or with both. However, the fact is, the amendments in criminal law that got inserted by way of Criminal Law (Amendment) Act, 2013 will not apply to the charges against Justice Ashok Kumar Ganguly. The alleged “unwelcome behaviour of a sexual nature” took place in December 2012 as per the victim and thus it preceded the legal amendments carried out on February 3, 2013. A law that came into force on the 3rd day of February, 2013 cannot be taken into account for the act that was committed in December 2012.

Protection from retroactive criminal law has by and large been accepted by all countries without any disagreement. The thumb rule of Criminal Jurisprudence is that the law as it stood at the time of commission of offence should govern it.  A retrospective law is one which travels back and carries forward a previous transaction to the present. Immunity is granted to an offender from being tried under a law which is enacted subsequently.  Retrospective effect is alien to criminal law. This rule is anchored on the principle that the doer cannot be imputed with the element of mens rea which is ordinarily the core ingredient for the proof of guilt. This universal principle is engrafted in our Constitution under Article 20(1) which prohibits the application of criminal legislations retrospectively as it being “ex-post-facto laws”.  It says that no person is to be convicted of an offence except for violating ‘a law in force’ at the time of the commission the offence.

The IPC provision existing at the time of alleged act of Justice Ganguly was Section 354 that dealt with assault or criminal force to woman with intent to outrage her modesty. It states – ‘Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will there by 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’.

Ideally, for conviction under Section 354 what is required to be proved is:-

(a) an assault has been committed or criminal force used,

(b) the object of the assault or criminal force is a woman, and

(c) that it was with the intention of outraging the modesty of a woman or knowledge that it was likely that her modesty would be thereby outraged.

Ironically, a Supreme Court Bench in which Justice Ganguly himself was a member, has explained in detail the ambit of Section 354 in Shekara v. State of Karnataka 2009 (14) SCC 76. It was held “In order to constitute the offence under S.354 IPC mere knowledge that the modesty of a woman is likely to be outraged is sufficient without any deliberate intention of having such outrage alone for its object. There is no abstract conception of modesty that can apply to all cases.” Further it is stated that intention is not the sole criterion of the offence punishable under S.354 IPC, and it can be committed by a person assaulting or using criminal force to any woman, if he knows that by such act the modesty of the woman is likely to be affected. Knowledge and intention are essentially things of the mind and cannot be demonstrated like physical objects. The existence of intention or knowledge has to be culled out from various circumstances in which and upon whom the alleged offence is alleged to have been committed. A victim of molestation and indignation is in the same position as an injured witness and her testimony should receive the same weight.

In State of Punjab v. Major Singh a three Judge Bench of the Supreme Court considered the question, “What is a woman’s modesty?” and it held “The essence of a woman’s modesty is her sex. The modesty of an adult female is writ large-on her body. Young or old, intelligent or imbecile, awake or sleeping the woman possesses a modesty capable of being outraged. Whoever uses criminal force to her with intent to outrage her modesty commits an offence punishable under Section 354. The culpable intention of the accused is the crux of the matter. The reaction of the woman is very relevant, but its absence is not always decisive, as, for example, when the accused with a corrupt mind stealthily touches the flesh of a sleeping woman. She may be an idiot, she may be under the spell of anaesthesia, she may be sleeping, she may be unable to appreciate the significance of the act; nevertheless, the offender is punishable under the section”.

In this context, let us examine the statement of the law intern from her blog in the light of above legal position.

“In Delhi at that time, interning during the winter vacations of my final year in University, I dodged police barricades and fatigue to go to the assistance of a highly reputed, recently retired Supreme Court judge whom I was working under during my penultimate semester. For my supposed diligence, I was rewarded with sexual assault (not physically injurious, but nevertheless violating) from a man old enough to be my grandfather. I won’t go into the gory details, but suffice it to say that long after I’d left the room, the memory remained, in fact, still remains, with me”.

The intern while writing this blog has carefully used the word “sexual assault” (not physically injurious, but nevertheless violating). It is enough to attract the  offence under S. 354 IPC, but Committee of three judges of the Supreme Court has carefully chosen the words ‘unwelcome behaviour’ and ‘conduct of sexual nature’ which find a place in amended 354 A.

Whatever may be consequences of the jugglery of words, since the alleged act has been committed prior to the amendment, one thing is certain, Justice  Ganguly will be not be charged under 354 – A , the new amendment., but certainly S.354

Got Something To Say:

Your email address will not be published. Required fields are marked *


*

*

  • harvinder says:

    I m also a victim of 354 for issuing show cause notice to a school peon for coming to school late in the capacity of principal of a govt school. Even my entire school staff including female staff-members know the truth yet the police officials say that under ipc 354 they would arrest without having any evidence against me. Departmental enquiry has already exonerated me yet the police is saying that they r duty bound to take action against me. This lady is of my mother age n her only motive is to put me behind bar for asking her to come to school late. This is the misuse of law. The law-maker must make some amendments in this law so the innocent are protected.

  • Raj says:

    Now a days due to this law , many cases of misuse of this section by female to settle the other conflict with male/family disputes/affaire dispute etc.
    Since if there is any direct evidence of molestation like, in public, CCTV etc, then probably such section must be of best use to put the culprit behind bar immediately, so as to justice the female .
    But there are the cases wherein , any backdated complaint lodge by female , without any direct evidence, and where some relation involved (Relation like Girlfriend, friend , Colleague, Or relative ) then such cases must be dealt with complete scrutiny before immediately putting Male behind the bar . Because even if later it prove that complaint was fake , then also that men shall never get his dignity back because he had already faced going behind bar/police custody.
    The misuse of this law can be done very easily by any female due to following provision of law:
    1. Police entertain even back dated complaint of female against molestation . (Why such any delay in FIR if really there was molestation?)
    2. Police just on the version of female complaint shall immediately arrest any innocent person and put him behind bar without giving him a chance to prove his innocence.
    3. When case goes to court , female get free public prosecutor and male shall have to spend on lawyer.
    4. There is no provision for punishment to female if case prove false or no direct evidence and sufficient doubt for false complaint .
    5. In overall , if any female decided to misuse the law , then by simply saying that male has molested her, she can defame any male and put him behind police custody for a day.
    Hence it is necessary to take strict action where CCTV, direct evidence , Public cases . However where no direct proof , backdated complaint , then police must do through investigation before putting any male behind bar. Because Male also have dignity and no body now talks about dignity of men and possible cruelty from female as well.

  • raj says:

    if police registered ipc 354 to kya same day criminal ko bail mil sakti hai? ya phir pc is compulsory for this section

  • RAJ says:

    HOW DIFINE IPC 354 354A KI LADY SUCH KAH RAHI HAI YA JHOOT KUCH LADY NE PAISE KAMANE KA BUSINESS BANA RAKHA HAI

    MERE SATH BHI KUCH AISA HI HUA HAI NOTED KYA HONA CHAHIYE

    1 .LADKI CHIDNE KE LIYE MERE GHAR AAYI
    2. USKI MAA BHI TABHI AAGI JO MERE GHAR SE 250 METER DURI PAR HAI
    3. USKI MUH BOLI BAHAI BHI TABHI JO OPP HAI300 MTR WO BHI AAGAY.
    4 CHOTO BROTTHER PAR JAAN SE MARNE KAR AAROP LAGAYA JO BAAD MAID KHATAM KAR DIYA GAYA.
    5. LADY NAIN MEDICAL NAHI HONE DIYA.
    6. PLOCICE WALI KO COUR MAIN CASE PAHUCHNE KE BAAD MALUM HUA JHOOTA CASE HAI

  • pavan futane says:

    Many women use ipc354 to blackmail men or couses are differance but use this ipc354

  • balbir says:

    ipc 354 me kaya hot a h

  • Dinesh mishra says:

    its Really Scery for man .and his fammily

  • Durga says:

    Its very scary indeed….How can only a woman’s word be taken as truth? How can one assume that all women are truthful and all men are raping and molesting liers? Even a murderer cannot be convicted without proper evidence and till the time it has been proved beyond doubt that the crime has been commited.

  • Dr.A.V.Ramana Rao says:

    Sec.354 IPC.,498 A IPC and DVC Acts framed for the protection of Women with all good intentions and motto are more often misused and exploited by the fair sex.Under the garb of these protective sections the complainants i.e. women are harrassing,blackmailing and freightening men beyond any imagination.Mere complaints without any basis or based on a very poor baseless basis or facts are enough to cause all possible harrassment to the men folk.Of all these Sec 354 is more misused .The slightest comments of appreciation of a woman are being dragged by women to attract this Sec.Is it Justice?

  • Saagar says:

    How does a lone man stop a woman from stealing without facing Section 354 IPC ?

Top