Pradeep Kunbi vs State of M.P.

U.C. Maheshwari, J.—The applicant/ accused has preferred this revision being aggrieved by the order dated 27.5.2011 and 3.8.2011 passed by Special Judge, Betul in Special Case No. 44/11, framing the charge against the applicant for the offence u/s 452, 354-Aof Indian Penal Code (in short "the Code") and Section 3(2) (v) of S. C. S. T. (Prevention of Atrocities), Act (in short "the Act"), by the aforesaid earlier order, while dismissed his application filed subsequent to framing the charge u/s 216 of Cr. P.C. for modification of such charge by the subsequent order. The facts giving rise to this revision in short are that the Station House Officer P. S. Multai on receiving a report in writing from complainant Ravi Khatrikar belonging to the sweeper community on 15.3.2011, registered a crime on the same day against the applicant for the offence u/s 354 and 456 of IPC. As per contents of FIR, on dated 12.3.2011 at about 2.30 in the noon when he came to his residence from the field to take the bucket, on opening the door he saw the applicant Pradeep Katare inside his house, who after entering in the house with bad intention had torned all weared cloths of his 20 years dumb sister Kavita and nacked her, as no cloth was present on her person. On seeing him the applicant ran away from such place, inspite making efforts he could not catch him. Subsequent to it at 4.00 O''clock the applicant again came to his residence and by giving the criminal threat to him and his family members said that whatever he (complainant) wants may do but could not damage him in any manner. The reason for giving the report at belated stage was shown to be that his father went to Jabalpur and till the date of report he was waiting for him when he did not come then along with his sister came to lodge the report. After arresting the applicant and holding the investigation the applicant was charge sheeted for the offence of Section 354, 456 of the Code and Section 3(2)(xi) of the Act. Considering the papers of the charge sheet on framing the charge of offence of Section 452, 354-A of Code and Section 3 (2)(v) of the Act, the applicant abjured the guilt and thereafter, filed an application u/s 216 of Cr. P.C. for modification of the charge with the prayer to frame the charge of Section 354 of IPC by modifying the charge framed for the offence of Section 354-A of IPC and Section 3 (2) (v) of the Act, the same was also dismissed, on which the applicant has come forward to this Court with this revision.

After taking me through the papers of the charge sheet along with the impugned orders the applicant''s counsel Shri Pushpendra Dubey, said that as per case of prosecution the alleged offence was committed by the applicant with the prosecutrix in side of the residential house of her brother the complainant and not at any public place. On the back ground of this factual matrix if the case is examined then in view of the basic provision of Section 354-A of IPC (inserted by amendment by the Legislature of Madhya Pradesh) and Section 354 of IPC then the impugned offence being committed inside of the house, the charge of Section 354-A of IPC could not be framed against the applicant because the charge of such Section could be framed only if the alleged offence of outraging the modesty of a woman is committed by the accused at some public place. In the available circumstances, the trial Court ought to have framed the charge of Section 354 instead the Section 354-A of IPC. In continuation he said that on perusing the entire charge sheet the prima-facie ingredients of offence of Section 3 (2)(v) of the Act are also not established, so the charge of such offence is also not sustainable. In alternate he said that in any case on modification of the charge of Section 354-A to Section 354 of IPC in which maximum punishment seven years has been provided, the aforesaid charge of the Act is also required modification from Section 3 (2) (v) to Section 3(1) (iii) and/ or 3 (i) (xi) of the Act. With these submission, he prays to discharge the applicant from the charge of Section 354-A of IPC as well as Section 3 (2)(v) of the Act by allowing this revision.

On the other hand by justifying the impugned order framing the charge against the applicant and dismissing his application filed u/s 216 of Cr. P.C. Shri G.S. Thakur, learned P.L. said that such charge being framed inconsonance with the papers of the charge sheet does not require any interference at this stage and prayed for dismissal of this revision.

Having heard keeping in view the arguments of the counsel, after perusing the entire charge sheet along with the impugned orders, I am of the considered view that in the available circumstance the trial court has committed grave error in framing the charge of Section 354-A of IPC and Section 3 (2) (v) of the Act instead such charge, the charge of Section 354 of IPC and Section 3(1) (iii) and 3(1) (xi) of the Act along with the charge of Section 452 of IPC should have been framed against the applicant. In such premises the charge of Section 452 of IPC does not appear to perverse or contrary to the papers of the charge sheet.

Before giving any finding on merit of this revision, I would like to reproduce the provision of Section 354 and 354-A of the Indian Penal Code, the same are 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.

354-A - Assault or use criminal force to woman with intent to disrobe her: Whoever assaults or uses criminal force to any woman or abets or conspires to assault or uses such criminal force to any woman intending to outrage or knowing it to be likely that by such assault, he will thereby outrage or causes to be outraged the modesty of the woman or disrobing or compel her to be naked on any public place, shall be punished with imprisonment of either description for a term which may shall not be less than one year but which may extend to ten years and shall also be liable to fine.

Mere perusal of aforesaid both the Sections, it is apparent that when the offence of outraging the modesty of any woman is committed by the accused on any public place then only it shall be deemed that such accused has committed the offence of Section 354-A of IPC. Accordingly in order to frame the charge of Section 354-A of IPC there must be prima-facie circumstance showing that such offence was committed by the accused on any public place. It is apparent from the papers of the charge sheet as stated above, the alleged offence outraging the modesty of the prosecutrix was committed by the applicant in side of the residential house of her brother and not at any public place. In such premises the charge framed by the trial Court u/s 354-A of IPC deserves to be and is hereby set aside and instead such charge in the available circumstances, the trial Court is directed to frame the charge of Section 354 of IPC against the applicant as the ingredients of such offence are prima-facie made out from the papers of the charge sheet.

In view of the aforesaid direction of modification of the charge from Section 354-A to 354 of IPC the charge of Section 3 (2) (v) of the Act also requires interference at this stage. Before giving any findings in this regard for ready reference I reproduced the provisions of Section 3 (1) (iii), 3(1) (xi) and 3 (2) (v) of the Act the same are as under :

Punishments for offences of atrocities - (1) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe -

(iii) forcibly removes clothes from the person of a member of a Scheduled Caste or a Scheduled Tribe or parades him naked or with painted face or body or commits any similar act which is derogatory to human dignity;

(xi) assaults or uses forced to any woman belonging to a Scheduled Caste or a Scheduled Tribe with intent to dishonour or outrage her modesty.

(2) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe-

(v) commits any offence under the Indian Penal Code (45 of 1860) punishable with imprisonment for a term of ten years or more against a person or property on the ground that such person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such member, shall be punishable with imprisonment for life and with fine;

Keeping in view the aforesaid provision of the Act 1 after the modification of the charge from Section 354-A of IPC (in which minimum one year and maximum ten years punishment of imprisonment with fine has been provided) to Section 354 of IPC (in which maximum punishment of two years imprisonment or fine or with both has been provided) on examining the case at hand the situation to frame the charge of Section 354 and 452 (in which the maximum punishment of imprisonment for seven years with fine has been provided) remains against the applicant.

As per case of the prosecution the applicant being member of OBC community not covered under the S.C.S. T. Act with bad intention to outrage the modesty of the dumb prosecutrix covered under the Scheduled Community of the provisions of the S. C. S. T. Act entered in her residential place and naked her by torning her clothes and thereby committed the alleged offence of outraging her modesty. Accordingly, he has committed the offence made punishable u/s 452 and 354 of IPC, in which less then ten years maximum punishment has been provided under the Law. In such premises on reading the aforesaid provision of Section 3 (2) (v) of the Act, it is apparent that such Section could be invoked only if the offence committed by the accused (who is not covered under the Schedule community of the Act) with a person (covered under the Schedule Community of the Act) is made punishable under the Indian Penal Code with the imprisonment of ten years or more. Thus, in view of the provision of maximum punishment u/s 452 and 354 of IPC seven years and two years respectively as stated above the charge of Section 3 (2) (v) is apparently perverse and same deserves to be and is hereby set aside and instead to such charge in the available circumstances of the case at hand the trial court is directed to frame the charge made punishable u/s 3 (1) (iii) and 3 (1) (xi) of the S.C.S.T. Act.

So far the charge of Section 452 of IPC framed by the trial Court against the applicant is concerned, the same being inconsonance with the papers of the charge sheet showing the applicant entered in the house of the prosecutrix with intention to commit the aforesaid alleged cognizable offence does not require any interference at this stage, hence the same is hereby affirmed.

In view of aforesaid discussion by allowing this revision in part the impugned charge of Section 354-A of IPC and Section 3 (2) (v) of the S.C.S.T. Act are set aside and the trial Court is directed to frame the charge of Section 354 of IPC at the place of Section 354-A of IPC and Section 3(1) (iii) and 3 (1) (xi) of SCST Act at the place of Section 3 (2) (v) of the Act and thereafter proceed further with the trial in accordance with the prescribed procedure. However, it is made clear that Section 354-A of IPC and Section 3 (2) (v) of the Act being major Section of Section 354 of the Code and 3(1) (iii) and 3 (1) (xi) of SCST Act the re-novo trial even after aforesaid modification of the charge trial shall not be required by the trial Court in the present matter. In such premises, the trial court shall be at liberty to continue and proceed with the trial of the case without recalling those prosecution witnesses, who have already been examined in the trial. Till the aforesaid extent the impugned order framing the charge are modified while other finding of the same are hereby affirmed.