IMPORTANT POINT
The court established that mere hesitation to treat does not constitute an offense under Section 354 IPC without intent to outrage modesty.

ORDER :

A. Badharudeen, J.

This Criminal Miscellaneous Case has been filed under Section 482 of the Code of Criminal Procedure, 1973, by the petitioner/accused in C.C. No.289/2023 on the files of the Judicial First Class Magistrate Court, Thalassery, seeking the following reliefs:

i. Call for the records related to the case C.C. No.289/2023 of the JFCM Court, Thalassery, which arose from final report 217/2023 dated 06/03/2023 and the Crime No.44/2023 of Thalassery Police Station and to quash the same.

ii. Grant any other reliefs which this Hon’ble court may deem fit and necessary and in the interest of justice.

2. Heard the learned counsel for the petitioner as well as the learned Public Prosecutor, in detail. Perused the relevant materials available. Though, notice served upon the 3rd respondent/defacto complainant, through the Station House Officer as submitted by the learned Public Prosecutor, she did not appear.

3. In this matter, precisely the prosecution allegation is that, at about 22.50 hours on 10.01.2023, the petitioner, who is a Pediatrician by profession, when attended the child of the defacto complainant, approached him, with complaints of fever consequent to vaccination, the petitioner was not inclined to treat the child and he became angry. Further allegation is that, the petitioner hesitated to treat the child and sent out the defacto complainant, her mother and child from the room. The petitioner allegation is that, while so, the petitioner herein caught hold on the shoulder of the defacto complainant and thereby committed offence punishable under Section 354 of Indian Penal Code (IPC hereinafter short).

4. The learned counsel for the petitioner, while seeking quashment of the proceedings, fervently argued that, going by the allegations in the FIS, offence punishable under Section 354 of IPC is not at all made out, prima facie and entire prosecution as against the petitioner/accused is unwarranted and the same is liable to be quashed.

5. The learned Public Prosecutor, though supported the prosecution case, her argument to substantiate offence punishable under Section 354 of IPC, not found to be justified.

6. Coming to the offence punishable under Section 354 of IPC, the same is 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 there by outrage her modesty.

7. Thus, in order to attract an offence under Section 354 of IPC, it is sine qua non that, 1) there must be an assault or use of criminal force to any woman by a men and 2) intending to outrage or knowing it to be likely that he will there by outrage her modesty. In the instant case, the only allegation against the petitioner, who is a Doctor is that, he hesitated to attend the child of the de facto complainant and sent out her, her mother and child from the consulting room. While so, he pressed on the shoulder of the defacto complainant. There is no allegation perceivable from the prosecution records that petitioner/accused pressed on the shoulder of the defacto complainant, with intention to outrage her modesty or knowing it to be likely that he will there by outrage her modesty, prima facie. It seems that hesitance on the part of the Doctor to treat the child of the de facto complainant and his attempt to sent out them from the consulting room, are the reasons for registering this crime. Thus, the prosecution allegation as to commission of offence punishable under Section 354 of IPC by the petitioner/accused not made out from the materials available, prima facie. Therefore, the quashment sought for is liable to be allowed.

Accordingly, this petition stands allowed and all further proceedings in C.C. No.289/2023 on the files of the Judicial First Class Magistrate Court, Thalassery, as against the petitioner/accused stand quashed.