1995 Supreme(SC) 1016

SUPREME COURT OF INDIA
A.S. Anand and M.K. Mukherjee, JJ.
Mrs. Rupan Deol Bajaj & Anr. - Appellants
versus
Kanwar Pal Singh Gill & Anr. - Respondents
Crl. Appeal No. 1183 of 1995
(arising out of SLP (Crl) No. 2358 of 1989)
with
Crl. Appeal No. 1184 of 1995
(arising out of SLP (Crl) No. 1361 of 1989)
Both Decided on 12-10-1995

IMPORTANT POINTS
1. The test for ascertaining whether modesty of a woman has been outraged is, is the action of the offender such as could be perceived as one which is capable of shocking the sense of decency of a woman.
2. The act of slapping a lady Officer of IAS cadre on her posterior in a gathering amounts to outraging of her modesty.
3. If in a given case, the complainant, as the person aggrieved raises objections to the acceptance of a police report which recommends discharge of the accused and seeks to satisfy the court that a case for taking cognizance was made out, but the court overrules such objections, it is just and desirable that the reasons therefore be recorded.

Headnote:(i) Criminal Procedure Code, 1973 - Section 482 - Inherent powers - Power of High Court to quash an F.I.R. or a complaint in exercise of its powers u/s. 482 - Quashing FIR not proper when.

       Held: The settled principle of law that at the stage of quashing an FIR or complaint the High Court is not justified in embarking upon an enquiry as to the probability, reliability or genuineness of the allegations made therein. Of course as has been pointed out in Bhajan Lals case (supra) an F.I.R. or a complaint may be quashed if the allegations made therein arc so absurd and inherently improbable that no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused but the High Court has not recorded such a finding, obviously because on the allegations in the FIR it was not possible to do so. For the reasons aforesaid we must hold that the High Court has committed a gross error of law in quashing the FIR and the complaint. Accordingly, we set aside the impugned judgment and dismiss the petition filed by Mr. Gill in the High Court under Section 482 Cr. P.C. (Para 21)

       (ii) Indian Penal Code, 1860 - Sections 354 and 509 - Offences under - Word modesty Meaning - Test for ascertaining when modesty of a woman is outraged - Alleged act of Director General of Police in slapping a lady officer of Indian Administrative Service on her posterior - Whether amounted to outraging of her modesty? - Yes - Slapping being finale to earlier overtures of Director General- Alleged act committed by him in presence or a gathering comprising elite of society - Nothing in FIR to indicate that indecent act was committed accidentally or by mistake or it was a slip Held, words used and gestures made were intended to insult modesty of lady Officer – Offences u/s 354 and 509 made out on allegations contained in FIR.

       Held: Since the word modesty has not been defined in the Indian Penal Code we may profitably look into it 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; shame fast". Websters Third New International Dictionary of the English language defines modesty as "freedom from coarseness, indelicacy or indecency; a regard for propriety in dress, speech or conduct". In the Oxford English Dictionary (1993 Ed) the meaning of the word modesty is given as "wemanly propriety of behaviour; scrupulous chastity of thought, speech and conduct (in man or woman); reserve or sense of shame proceeding from instinctive aversion to impure or coarse suggestions". (Para 13)

       Further Held: From the above dictionary meaning of modesty and the interpretation given to that word by this Court in Major Singhs case (supra) it appears to us that the ultimate test for ascertaining whether modesty has been outraged is, is the action of the offender such as could be perceived as one which is capable of shocking the sense of decency of a woman. When the above test is applied in the present case, keeping in view the total fact situation, it cannot but be held that the alleged act of Mr. Gill in slapping Mrs. Bajaj on her posterior amounted to outraging of her modesty for it was not only an affront to the normal sense of feminine decency but also an affront to the dignity of the lady "sexual over tones" or not, notwithstanding. (Para 14)

       Consequently Held, that if intention or knowledge is one of the ingredients of any offence, it has got 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. Since, however, in the instant case we are only at the incipient stage we have to ascertain, only prima facie, whether Mr. Gill by slapping Mrs. Bajaj on her posterior, in the background detailed by her in the FIR, intended to outrage knew it to be likely that he would thereby outrage her modesty, which is one of the essential ingredients of Section 354 IPC. The sequence of events which we have detailed earlier indicates that the slapping was the finale to the earlier overtures of Mr. Gill, which considered together, persuade us to hold that he had the requisite culpable intention. Even if we had presumed he had no such intention he must be attributed with such knowledge, as the alleged act was committed by him in the presence of a gathering comprising the elite of the society as the names and designations of the people given in the FIR indicate. While on this point we may also mention that there is nothing in the FIR to indicate, even remotely, that the indecent act was committed by Mr. Gill, accidentally or by mistake or it was a slip. For the reasons aforesaid, it must also be said that, - apart from the offence under Section 354 IPC - an offence under Section 509 IPC has been made out on the allegations contained in the FIR as the words used and gestures made by Mr. Gill were intended to insult the modesty of Mrs. Bajaj. (Para 16)

       (iii) Indian Penal Code, 1860 - Section 95 Applicability - When allegations made in FIR, prima facie, disclose offences u/ss 354 and 509 IPC - Director General of Police allegedly indecently behaved with a senior lady IAS Officer in presence of a gathering - Inspite of her raising objections he continued with such behaviour - Section 95 not applicable to such allegations made, in FIR.

       Held that section 95 IPC has no manner of application to the allegations made in the F.I.R. On perusal of the FIR we have found that Mr. Gill, the top most official of the State Police, indecently behaved with Mrs. Bajaj, a Senior lady IAS Officer, in the presence of a gentry and inspite of her raising objections continued with his such behaviour. If we arc to hold, on the face of such allegations that, the ignominy and trauma to which she was subjected to was so slight that Mrs. Bajaj, as a person of ordinary sense and temper, would not complain about the same, sagacity will be the first casualty. In that view of the matter we need not delve into the contention of Mrs. Jai Singh, - much Jess decide - that Section 95 IPC cannot take any manner of application to an offence relating to modesty of woman as under no circumstances can it be trivial. (Para 19)

       (iv) Criminal Trial - FIR for offences u/ss 354, 352, 341, 342 and 509 IPC - Police completed investigation and sent papers relating thereto to Legal Remembrancer-cum-Director of prosecution for his opinion -Final report submitted to Magistrate stating that evidence on record did not substantiate accusations of Complainant - Report accepted - Order passed that case be filed with accused as untraced Petition tiled by complainant praying for opportunity to inspect report. Chief Judicial Magistrate, the Legal Remembrance-cum. Director passed on order directing issuance of notice - Whether order sustainable.

       Held, that before the High Court was moved by Mr. Gill through his petition under Section 482 Cr. P.C. and the interim order staying investigation of the case registered on the F.I.R. was passed thereon, the police had completed the investigation and sent the papers relating thereto to the Legal Remembrancer-cum-Director of Prosecution (LR for short) for his opinion. After his opinion was received the investigating officer prepared the police (final) report on November 22, 1988 and forwarded it, through the Senior Superintendent of Police, Chandigarh Administration (S.S.P.) on November 28, 1988 to the Ilaka Magistrate stating that the evidence on record did not substantial the accusations of the complainant (Mrs. Bajaj). The learned Magistrate, in his turn, accepted the report on December 9, 1989 and ordered that the case be filed with accused as untraced. In the context of the fact that the High Court had, in the meantime quashed the F.I.R. the above order was wholly unnecessary and redundant but, now that we have revived the F.I.R. and the complaint, it also revives. That necessarily means, that if we allow the above order to stand one course left open to us is, in view of out earlier findings, to direct the Magistrate to proceed with the complaint in accordance with the provisions of Section 210 (3) Cr. P.C., but having regard to the police report and the manner in which it was dealt with and ultimately accepted, we consider it necessary to set aside the order treating the police case as "untraced". (Para 22)

       Further Held: From the records we find that while forwarding the police papers to the "Ilaka Magistrate on November 28, 1988, the S.S.P. recommended that the case might be filed as un traced as requested by the local police in the final report. The papers, however, do not appear to have been dealt with till July 17, 1989 when the Chief Judicial Magistrate entertained an application filed by Mrs. Bajaj in connection therewith wherein she stated that in CrimiI1al Miscellaneous Petition No. 9041-M of 19.88 (registered on the petition filed by Mr. Gill under Section 482 Cr. P.C.) the State had filed an affidavit averring that the police had submitted its report under Section 173 Cr. P.C. and prayed for a direction upon the prosecution to intimate the date of the filing of the report and give her an opportunity to inspect the same. Interestingly and surprisingly enough, the Chief Judicial Magistrate was none other than the L.R. who had earlier given the opinion that the accusations of the complainant (Mrs. Bajaj) were not substantiated from the evidence collected during investigation. Indeed, it is under the influence of the above opinion that the police report was submitted as would be evident from the report itself wherein the Investigating Officer has stated "all the statements of witnesses were sent to the L.R. who, vide letter No. LD-88/7163 dated 21-11-1988, found that evidence on record do not substantiate the accusations of the complainant" (as translated into English). It is difficult to believe that the learned Chief Judicial Magistrate was not aware of the fact that he had himself opined that no case for going to the trial was made out against Mr. Gill and therefore, it was expected that in the interest of justice and fair play he would have declined to deal with the case in his capacity as the Chief Judicial Magistrate. Instead of so doing, he passed an order on that application on July 19, 1989 directing issuance of notice. This was followed by another order dated July 22,1989 whereby he directed that the application be listed on August 8, 1989 awaiting report. On the date so fixed he passed his next order which indicates that the report was received on that day and placed on record. It is not understood, which report the learned Magistrate was referring to for if it is to be read in the context of the prayer made by Mrs. Bajaj in her application dated July 17, 1989 it would necessarily mean the police report but as already noticed, the affidavit filed by the State in the High Court and the prayer of the Senior Superintendent of the Police dated November 28, 1988 clearly indicate that it had been sent to the Court much earlier. It can, therefore, be legitimately inferred that the formal order regarding the receipt of the police report was belatedly made on August 8, 1989 .Be that as it may, it appears that even thereafter the came learned Chief Judicial Magistrate continued to deal with the matter.

       It passes our comprehension as to how an Officer (L.R.) who had given the opinion to submit a police report in favour of Mr. Gill could entertain the request of the police for accepting the same while acing in his judicial capacity. More surprising and disquieting is the fact that he continued to deal with the matter till he realised that it would not be appropriate on his part to go any further. We need not, however, dilate on this aspect of the matter any further for in any case the order of the transferee Magistrate on the police report cannot be sustained inasmuch as he has not given any reason whatsoever for its acceptance though, it appears, the parties were heard on that question for days together, obviously to comply with the law laid down by this Court. (Para 23)

       (v) Criminal Procedure Code, 1973 - Sections 173 (1), and 190(1) - Police Report Exercise of Judicial discretion - P when report u/s 173(1) submitted to the effect that no case had been made out. Complainant raising objections to acceptance of police report which recommends discharge of accused - Complainant submitting that a case for taking cognizance was made out. Court overruling such objections has to record reasons. However, recording of reasons not necessary when Court accepts such police report without any objection from complainant.

       Held: In Abhinandan Jha v. Dinesh Mishra6 AIR 1968 SC 117, the question arose whether a Magistrate to whom a report under Section 173 (1) Cr. P.C. had been submitted to the effect that no case had been made out against the accused, could direct the police to file a charge-sheet on his disagreeing with that report. In answering the question this Court first observed that the use of the words may take cognizance of any offence in sub-section (1) of Section 190 Cr. P.C. imports the exercise of judicial discretion and the Magistrate who receives the report under Section 173 Cr. P.C. will have to consider the said report and judicially take a decision whether or not to take cognizance of the offence. The Court then held, in answering the question posed before it, that the Magistrate had no jurisdiction to direct the police to, submit a charge-sheet but it was open to the Magistrate to agree or disagree with the police report. If he agreed with the report that there was no case made out for issuing process to the accused he might accept the report and close the proceedings. If he came to the conclusion that further investigation was necessary he might make an order to that effect under Section 156(3). It was further held that if ultimately the Magistrate was of the opinion that the facts set out in the police report constituted an offence he could take cognizance thereof, notwithstanding contrary opinion of the police expressed in the report. (Para 24)

       Further Held: Since at the time of taking cognizance the Court has to exercise its judicial discretion, it necessarily follows that if in a given cruse - as the present one - the complainant, as the person aggrieved raises objections to the acceptance of a police report which recommends discharge of the accused and seeks to satisfy the Court that a case for taking cognizance was made out, but the Court overrules such objections, it is just and desirable that the reasons therefore be recorded. Necessity to give reasons which disclose proper appreciation of the issues before the Court needs no emphasis. Reasons introduce clarity and minimise chances of arbitrariness. That necessarily means that recording of reasons will not be necessary when the Court accepts such police report without any demur from the complainant. As the order of the learned Magistrate in the instant case does not contain any reason whatsoever, even though it was passed after hearing the objections of the complainant it has got to be set aside. (Para 25)

       (iv) Criminal Procedure Code, 1973 - Section 190 (1) (b) - Indian Penal Code, 1860 - Sections 354 and 509 - There is sufficient material for taking cognizance of offences u/ss 354 & 509 - Chief Judicial Magistrate, Chandigarh is directed to take cognizance upon police report in respect of such offences - Case to be disposed of expeditiously, preferably within six months.

       Held, that the opinion of the Investigating Officer that the allegations contained in the F.I.R., were not substantiated by the statements of witnesses recorded during investigation is not a proper one for we find that there are sufficient materials for taking cognizance of the offences under Sections 354 and 509 I.P.C. (Para 26)