If an offence falls under Section 354 IPC, even if the ingredients of Section 354A IPC are satisfied, the accused will be punished under Section 354 IPC as it is more serious and prescribes a minimum sentence of one year.

Mukta Gupta, J.

The petitioner faced trial in case FIR No. 36/2013 under Sections 354/354A IPC and was acquitted by the learned Metropolitan Magistrate vide order dated 8th September, 2015. On an appeal filed by the State the learned Additional Sessions Judge convicted the appellant for offence punishable under Sections 354/354A IPC and directed him to undergo simple imprisonment for a period of one year and to pay a fine of Rs. 5,000/- for offence punishable under Section 354 IPC and rigorous imprisonment for a period of six months for offence punishable under Section 354A IPC vide the impugned judgment dated 23rd March, 2016. Hence the present petition by the petitioner.

2. FIR No. 36/2013 Ex. PW-1/A was registered under Section 354 IPC at PS Nabi Karim on the statement of PW-2 who stated that she was working at a Child Helpline. On 22nd February, 2013 around 8:15 P.M., she was going towards New Delhi Railway Station after finishing her duty and when she reached near Paharganj bridge, a man who was in drunken condition came towards her and fondled her breast with ill intention. Before she could understand anything, he touched her private parts. When she raised alarm, two/three passersby held and handed him over to the police officials in the PCR van. The name of the man was revealed as T. Manikadan.

3. Learned counsel for the petitioner contends that the language of Section 354 and 354A(i) is similar and the legislature has failed to distinguish the offences under these two provisions. Furthermore, due to this disparity, a person who is convicted for offence punishable under Section 354A IPC shall automatically be convicted for offence punishable under Section 354 IPC. It is submitted that as the act of the petitioner falls within the special category of the offence punishable under Section 354A IPC, he cannot be convicted under the general offence as well i.e. Section 354 IPC. In the alternative, it is contended that juxtaposed together the two provisions reveal the basic difference. Whereas Section 354 IPC deals with a single act of criminal force being used to outrage a woman's modesty, Section 354 (A) (1) (i) talks about physical contact and advances both. The use of word 'and' in Section 354A requires that there should be a physical contact with sexual advances/overtures. Therefore, the newly added provision is applicable in a situation where the accused does not stop after committing a single isolated act of criminal force but rather goes on to commit several other similar acts which end up converting his actions into advances of a sexual overture. Since the petitioner can be at best held guilty of Section 354A IPC and no minimum sentence is prescribed for the said offence, the petitioner be released on the period undergone. Lastly, discretion has been granted to the Courts to award lesser punishment when there is confusion in the wordings of two Sections.

4. Per contra learned APP for the State submits that the impugned judgment of the learned Additional Sessions Judge suffers from no illegality. There is no overlap between offences punishable under Section 354 IPC and Section 354A IPC. The offences committed by the petitioner also fulfil the ingredients of Section 354 IPC for which a minimum sentence of one year imprisonment has been provided which has been awarded to the petitioner. Hence no case for release of the petitioner on the period undergone is made out.

5. PW-2 the prosecutrix deposed in Court in sync with her statement made before the police and nothing material could be elicited in her cross-examination. It is for this reason learned counsel does not press the petition on the merits but on the legal issue as noted above.

6. Sections 354 and 354A to 354D IPC read 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 pun