IMPORTANT POINT
If any person uses criminal force upon any woman with the intention or knowledge that the woman's modesty will be outraged, he is to be punished.

JUDGMENT

Dr. B.S. Chauhan, J.

1. Leave granted.

2. This appeal has been preferred against the impugned judgment and order dated 19.9.2012 passed by the High Court of Calcutta in Criminal Revision No. 3240 of 2012 affirming the judgment and order of the learned Sessions Judge dated 22.8.2012 dismissing the appeal of the appellant against the judgment and order of the learned Magistrate dated 9.5.2012, by which and whereunder the learned Magistrate had found the appellant guilty for the offence punishable under Section 354 of Indian Penal Code, 1860 (hereinafter referred to as the ‘IPC’).

He had been sentenced to suffer SI for 6 months and further to pay a fine of Rs.1,000/-, and in default of payment of fine, further to undergo SI for two months.

3. Facts and circumstances giving rise to appeal are that:

A. On 6.11.1995, Nasima Begum (PW.1), aged about 16 years filed a complaint alleging that on that day while she was going to attend her tuition alongwith her friend Nilufa Khatun, she met the appellant on the way who suddenly came and forcibly caught hold of her hair and planted a kiss, resultantly, she suffered a cut over her lower lip and started bleeding.

B. A case under Section 354/324 IPC was registered. After conducting the trial, the court of Ist Judicial Magistrate, Ist Court, Malda vide judgment and order dated 9.5.2012 found the appellant guilty for offence under Section 354 IPC and sentenced him as referred to hereinabove.

C. Aggrieved, the appellant preferred Criminal Appeal No.2/2012 before the learned Sessions Judge, Malda and the said appeal was dismissed vide judgment and order dated 22.8.2012.

D. Appellant challenged both the aforesaid orders by filing Criminal Revision before the High Court which has been dismissed by the impugned judgment and order dated 19.9.2012.

Hence, this appeal.

4. Shri S.C. Ghosh, learned counsel appearing for the appellant has half-heartedly challenged the findings of fact recorded by the courts below. However, we are not inclined to re-appreciate the evidence and disturb the findings recorded by the three courts, therefore, he argued that since the incident occurred more than 18 years ago and at that time the appellant as well as the complainant were about 16 years of age, the court should not send the appellant to jail at such a belated stage. Considering the fact that the appellant was juvenile in view of the provisions of Juvenile Justice Act, 2000 (hereinafter referred to as the ‘JJ Act 2000’), he ought to have been tried before the Juvenile Justice Board and not by the criminal court, as was done. Even otherwise, considering the time gap of 18 years and the fact that the appellant as well as the complainant have settled in life and both of them are married and have children, their lives should not be disturbed. In all circumstances, the court should give the benefit to the appellant under the provisions of Probation of Offenders Act, 1958 (hereinafter referred to as the ‘Act 1958’). Therefore, the appeal deserves to be allowed.

5. On the other hand, Shri Anip Sachthey, learned Standing counsel appearing for the State of West Bengal has opposed the appeal contending that considering the nature of offence wherein the modesty of a young girl was outraged, the question of showing any leniency or granting the benefit of the Act 1958 is not warranted. Even if the case of the appellant is considered under the JJ Act 2000, the maximum punishment that can be awarded is of 3 years, while in the instant case, the appellant had been sentenced only for a period of six months. Therefore, it will be a futile exercise to consider the case of the appellant on that anvil. Thus, the appeal is liable to be dismissed.

6. We have considered the rival submissions made by learned counsel for the parties and perused the record.

7. In view of the concurrent findings recorded by the three courts below, we are not inclined to re-appreciate the evidence. The same is also not warranted in view of the fact tha