Smt. Jayanti Mohapatra vs Sri Narayan Mohanty and Another

L. Mohapatra, J.—This application u/s 482 of the Cr.P.C. has been filed challenging the order dated 4.3.1997 of the learned Sessions Judge, Balasore in Criminal Revision No. 78 of 1996 setting aside the order dated 27.1.96 passed by the learned S.D.J.M., Balasore in I.C.C. No. 401 of 1995 taking cognizance of offence u/s 354 of the Penal Code.

From the record as it appears that the complaint case was filed by the present petitioner alleging therein that in the night of 1/2-10.95 the opposite party No. 1 along with some subordinate police officers came in a police jeep broke open the door of the house of the petitioner''s husband with a plough. Out of fear the husband of the complainant as well as father-in-law did not open the door and while breaking open the door with plough the same hit the father-in-law of the complainant. Thereafter, they dragged them to the house of Aparti Sahoo where the complainant and her husband''s sister were staying to see Durga Puja festival. At that place also the opposite party No. 1 abused Aparti Sahoo. When the conduct of the opposite party No. 1 was objected to be dragged the complainant by holding her hair, pulled her saree and assaulted her.

On the basis of such allegations complaint was filed on 16.10.95 and on the basis of materials collected during enquiry u/s 202 Cr.P.C. learned Magistrate took cognizance for the offences committed under Sections 323 and 354 of the Penal Code vide order dated 27.1.96. The opposite party No. 1 challenged the said order before the learned Sessions Judge, Balasore in Criminal Revision No. 78 of 1996 on the question of sanction as well as on facts. The learned Sessions Judge while disposing of the revision held that no sanction was necessary since the alleged conduct had no relationship with the discharge of official duty, but however, came to a finding that since in course of dragging the complainant''s saree had slipped, there was no intention to commit the offence u/s 354 of the Penal Code and accordingly partly quashed the order of the learned Magistrate so far it relates to the offence u/s 354 of the Penal Code. The aforesaid judgment of the learned Sessions Judge is impugned in this application.

Shri Lenka, learned counsel for the petitioner referring to the evidence collected during the enquiry as well as the allegations made in the complaint submitted that there is a clear case of offence u/s 354 of the Penal Code and there was no reason for the learned Sessions Judge to presume that while dragging, the complaint''s saree might have slipped. Shri D. Nayak, learned counsel appearing for the opposite party No. 1, on the other hand, submitted that there is evidence only to show that the complainant was dragged to the police jeep by the opposite party No. 1 and in the process of dragging the saree slipped and therefore, there being no intention of outraging modesty of the complainant, the offence u/s 354 of the Penal Code is not made out.

In the light of the submission made by the learned counsel for the petitioner as well as the opposite party No. 1, it is necessary to look into the allegations made in the complaint and materials collected during enquiry u/s 202 Cr.P.C. It is alleged in the complaint that in the year 1988 the complainant married one Sudhansu Sekhar Mohapatra and out of such wedlock two children were born. During that period there was some dispute between the husband and wife and the complainant was staying in her father''s house. Thereafter, she came to her husband in the year 1993 and was staying with her husband. It is further alleged in the complaint that father and brother of the complainant were not pulling wall with the husband of the complainant. On the date of occurrence the complainant had gone to the house of her husband''s sister to see Durga Puja festival and at about 2 P.M. in the night the opposite party No. 1 came in a police jeep with her husband and father-in-law and called the complainant. When the complainant came out of the opposite party No. 1 caught-hold of her hair and abused her in filthy language. It is also stated in the complaint that the opposite party No. 1 gave a slap on her face and dragged her to the police station which resulted in slipping of her saree. When other persons present at the spot objected the opposite party No. 1 threatened them and went back.

The complainant in her initial statement has specifically stated that the opposite party No. 1 pulled her saree inspite of her objection and made her necked holding the saree forcibly. Similarly is the statement of two witnesses, i.e. husband of the complainant-petitioner as well as father-in-law of the complainant who were examined during enquiry u/s 202 Cr.P.C. In this connection, reference may be made to a decision of the Apex Court reported in (1995) 9 OCR 602 (Mrs. Rupam Deol Bajaj and Anr., v. Kanwar Pal Singh Gill and Anr.). While dealing with the question ''modesty'' the Apex Court referred to dictionary meaning of the same and observed as follows :

"Since the word ''modesty'' has not been defined in the Indian Penal Code we may profitably look into its dictionary meaning. According to shorter Oxford English Dictionary (Third Edition) modesty is the quality of being modest and in relation to woman means ''womanly propriety of behaviour, scrupulous chastity of thought, speech and conduct." The word ''modest'' in relation to woman is defined in the above dictionary as ''decorous in manner and conduct, not forward or lewd, shamefast.'' Webster''s Third New International Dictionary of the English Language defines modesty as "Freedom from coarseness, indelicacy, or indecency speech or conduct." In the Oxford English Dictionary (1933 Ed.), the meaning of the word ''modesty'' is given as ''womanly propriety of behaviour, scrupulous chastity of thought, speech and conduct (in man or woman); reserve or sense of shame proceeding from instinctive a version to impure or course suggestion."

The Apex Court further observed that intention or knowledge is one of the essential ingredients of offence and it has to be proved like other ingredients for convicting a person. But it is also equally true that those ingredients being states of mind may not be proved by direct evidence and may have to be inferred from the attending circumstances of a given case. In the present case, we are only concerned with existence of a prima facie case. As discussed earlier, there is a clear allegation by the complainant in her initial statement that in spite of protest the opposite party No. 1 dragged her by pulling her saree forcibly and under these circumstances it cannot be said that the opposite party No. 1 had no intention or knowledge of outraging the modesty of the complainant. Since prima facie case u/s 354 of the Penal Code is made out, there was no reason for the learned Sessions Judge to set aside that part of the order passed by the learned S.D.J.M.

I, therefore, quash the impugned order and direct the learned S.D.J.M. to proceed with the case on the basis that cognizance has been taken for offence under Sections 323/354 of the Penal Code.

Shri Nayak, learned counsel appearing for the opposite party No. 1 submitted that this Court may also consider the legality of the order taking cognizance in absence of sanction order u/s 197 Cr.P.C. From the revisional order I find same question was raised and the learned Sessions Judge has turned down the plea on the ground that conduct of the opposite party No. 1 has no nexus with discharge of official duty. Said order having not been challenged by the opposite party No. 1, there is no scope in this application to entertain the question. Accordingly, the Criminal Misc. Case is allowed.