Vidyadharan
Vs. State of Kerala [2003] Insc 562 (14 November 2003)
Doraiswamy
Raju & Arijit Pasayat. Arijit Pasayat, J
Appellant
faced trial for alleged commission of offences punishable under Sections 354
and 448 of the Indian Penal Code, 1860 (for short the 'IPC') and Section 3 (1)
(xi) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act,
1989 (for short the 'Act'). He was convicted and sentenced to undergo three
months and six months custodial sentence for offences relatable to Section 448
IPC and Section 3 (1)(xi) of the Act respectively. No separate sentence was
imposed for the other offence. Aforesaid conviction and sentence was affirmed
by the High Court.
Prosecution
case which led to the trial is essentially as follows:
While the
victim (PW-1) was alone in her house on 1.10.1992 at about 2 p.m. the accused
entered into her house, went to the kitchen where she was cooking and attempted
to catch hold of her hand, that when she attempted to escape from him by
running to the front room and attempting to close the door, the accused
followed her, opened the door forcibly and caught hold of and grasped her, when
she made a hue and cry her brother PW-3 and other witnesses including PW-2 came
there, and at that time the accused left PW-1 and pushed down PW-3 from the
verandah and went along with his parents who came there hearing the hue and
cry.
PW-1
lodged the first information report at the Kannamali Police Station on
2.10.1992 and a case was registered against the accused under Sections 448 and
354 IPC and Section 3 (1)(xi) of the Act. The C.I. of Palluruthy took up the
investigation and laid the charge sheet against the accused after completing
the investigation.
During
trial, nine witnesses were examined to further the prosecution version. One
witness was examined to substantiate the plea of false implication raised by
the accused. On consideration of the evidence on record, learned Sessions
Judge, Ernakulam found the accused guilty and convicted him as aforesaid.
According to learned Sessions Judge the offence punishable under Section 3 (1)
(xi) of the Act is an aggravated form of an offence punishable under Section
354 IPC and, therefore, no separate sentence for the latter offence is called
for.
Appeal
before the Kerala High Court did not bring in any relief to the appellant.
In
support of the appeal, Mr. K. Sukumaran, learned senior counsel submitted that
the evidence on record clearly established that there was false implication.
According to him, PW-3, the brother of PW-1 outraged modesty of the appellant's
sister after trespassing into their house on 27.9.1992. The sister of the
accused was examined as DW-1. She is an unmarried girl and hence the family
members counselled her not to make any complaint about the incident to avoid publicity.
Apprehending legal action against PW-3 a false case was made with the active
support of a communal organisation against the appellant.
The
prosecution version is that at about 2.00 p.m. on the date of occurrence i.e. 1.10.1992 accused entered into the
kitchen of PW-1 and caught hold of her hands and tried to outrage her modesty.
She is a married woman with children. The information was lodged at police
station on the next date. This itself shows that there is unexplained delay in
lodging the FIR and as the incident involving PW-3 took place on 27.9.1992, as
a counter blast a false case was instituted.
Additionally,
it was submitted that the conviction under Section 3(1)(xi) of the Act is
clearly unsustainable and learned Sessions Judge had no jurisdiction to try the
offence.
Residually,
it is submitted that the incident took place more than a decade back and the
appellant has suffered custodial sentence for nearly 3 months and, therefore,
after this long passage of time it would not be proper to send the accused back
to custody.
We
shall first deal with the plea about false implication. It is seen that though
there were some delay in lodging the FIR, it is but natural in a traditional
bound society to avoid embarrassment which is inevitable when reputation of a
woman is concerned. Delay in every case cannot be a ground to arouse suspicion.
It can only be so when the delay is unexplained. In the instant case the delay
has been properly explained. Further, PW-2 is an independent witness and a neighbour
of both the accused appellant and PW-1. There is no reason as to why he would
falsely implicate the appellant. A charge under Section 354 is one which is
very easy to make and is very difficult to rebut. It is not that art of enmity
false implications are made. It would however be unusual in a conservation
society that a woman would be used as a pawn to wreck vengeance. When a plea is
taken about false implication, Courts have a duty to make deeper scrutiny of
the evidence and decide acceptability or otherwise of the accusations. In the
instant case, both the trial Court and the High Court have done that. There is
no scope for taking a different view.
In
order to constitute the offence under Section 354 mere knowledge that the
modesty of a woman is likely to be outraged is sufficient without any
deliberate intention having such outraged alone for its object. There is no
abstract conception of modesty that can apply to all cases. (See State of Punjab v. Major Singh (AIR 1967 SC 63). A
careful approach has to be adopted by the Court while dealing with a case
alleging outraged of modesty. The essential ingredients of the offence under
Section 354 IPC are as under:
(i) that
the person assaulted must be a woman;
(ii) that
the accused must have used criminal force on her, and
(iii)that
the criminal force must have been used on the woman intending thereby to
outrage her modesty.
Intention
is not the sole criteria of the offence punishable under Section 354 IPC, and
it can be committed by a person assaulting or using criminal force to any
woman, if he knows that by such act the modesty of the woman is likely to be
affected. Knowledge and intention are essentially things of the mind and cannot
be demonstrated like physical objects. The existence of intention or knowledge
has to be culled out from various circumstances in which and upon whom the
alleged offence is alleged to have been committed. A victim of molestation and
indignation is in the same position as an injured witness and her witness
should receive same weight.
In the
instant case after careful consideration of the evidence, the trial Court and
the High Court have found the accused guilty. As rightly observed by the Courts
below Section 3 (1)(xi) of the Act which deals with assaults or use of force on
any woman belonging to scheduled Caste or Scheduled Tribe with intent to or dishonour
or outrage her modesty is an aggravated form of the offence under Section 354
IPC. The only difference between Section 3 (1)(xi) and Section 354 is
essentially the caste or the tribe to which the victim belongs. If she belongs
to Scheduled Caste or Scheduled Tribe, Section 3 (1)(xi) applies. The other
difference is that in Section 3 (1)(xi) dishonour of such victim is also made
an offence. Section 448 provides for punishment relating to house trespass. In
order to sustain the conviction under Section 448 IPC it must be found that the
intention of the accused was to commit an offence or to intimidate, insult or
annoy the complainant. There must be unlawful entry and there must be proof of
one or other of the intentions mentioned in Section 441 IPC. In the case at
hand evidence clearly establishes the commission of offence punishable under
Section 448.
That
bring us to the most vital question as to legality of the trial involving offence
punishable under Section 3(1)(xi) of the Act.
Pristine
question to consider is whether the Special Judge could take cognizance of the
offence straight away without the case being committed to him. If the Special
court is a Court of Session, the interdict contained in Section 193 of the Code
of Criminal Procedure, 1973 (for short the 'Code') would stand in the way. It
reads thus:
"193.
Cognizance of offences by Courts of Session- Except as otherwise expressly
provided by this Code or by any other law for the time being in force, no Court
of Session shall take cognizance of any offence as a court of original
jurisdiction unless the case has been committed to it by a Magistrate under
this Code." So the first aspect to be considered is whether the Special Court
is a Court of Session. Chapter II of the Code deals with "Constitution of
Criminal Courts and Offices". Section which falls thereunder says that :
"there
shall be, in every State, the following classes of criminal courts, namely:
(i)
Courts of Sessions;" The other classes of criminal courts enumerated thereunder
are not relevant in this case and need not be extracted.
Section
14 of the Act Says that:
"for
the purpose of providing for speedy trial, the State Government shall, with the
concurrence of the Chief Justice of the High Court, by notification in the
Official Gazette, specify for each district a Court of Session to be a Special Court to try the offences under this
Act." So it is for trial of the offences under the Act that a particular
Court of Session in each district is sought to be specified as a Special Court. Though the word 'trial' is not
defined either in the Code or in the Act it is clearly distinguishable from
inquiry. The word 'inquiry' is defined in Section 2(g) of the Code as 'every
inquiry, other than a trial, conducted under this Code by a Magistrate or
court'. So the trial is distinct from inquiry and inquiry must always be a
forerunner to the trial. The Act contemplates only the trial to be conducted by
the Special Court. The added reason for specifying a
Court of Session as a Special
Court is to ensure
speed for such trial. "Special Court" is defined in the Act as
"a Court of Session specified as a Special Court in Section 14" (vide
Section 2(1)(d).
Thus
the Court of Session is specified to conduct a trial and no other court can
conduct the trial of offences under the Act. Why did Parliament provide that
only a Court of Session can be specified as a Special Court? Evidently the
legislature wanted the Special Court to be a Court of Session. Hence the
particular Court of Session, even after being specified as a Special Court,
would continue to be essentially a Court of Session and designation of it as a
Special Court would not denude it of its character or even powers as a Court of
Session. The trial in such a Court can be conducted only in the manner provided
in Chapter XVIII of the Code which contains a fascicules of provisions for
'trial before a Court of Session".
Section
193 of the Code has to be understood in the aforesaid backdrop. The Section
imposes an interdict on all Courts of Session against taking cognizance of any
offence as a Court of original jurisdiction. It can take cognizance only if
'the case has been committed to it by a Magistrate', as provided in the Code.
Two segments have been indicated in Section 193 as exceptions to the aforesaid
interdict. One is, when the Code itself has provided differently in express
language regarding taking of cognizance, and the second is when any other law
has provided differently in express language regarding taking cognizance of
offences under such law. The word 'expressly' which is employed in Section 193
denoting those exceptions is indicative of the legislative mandate that a Court
of Session can depart from the interdict contained in the Section only if it is
provided differently in clear and unambiguous terms. In other words, unless it
is positively and specifically provided differently no Court of Session can
take cognizance of any offence directly, without the case being committed to it
by a Magistrate.
Neither
in the Code nor in the Act is there any provision whatsoever, not even by
implication, that the specified Court of Session (Special Court) can take
cognizance of the offence under the Act as a Court of original jurisdiction without
the case being committed to it by a Magistrate. If that be so, there is no
reason to think that the charge-sheet or a complaint can straight away be filed
before such Special
Court for offences
under the Act. It can be discerned from the hierarchical settings of criminal
courts that the Court of Session is given a superior and special status. Hence
we think that the legislature would have thoughtfully relieved the Court of
Session from the work of performing all the preliminary formalities which Magistrates
have to do until the case is committed to the Court of Session.
A
reading of the concerned provisions makes it clear that subject to the
provisions in other enactments all offences under other laws shall also be
investigated, inquired into, tried and otherwise dealt with under the
provisions of the Code. This means that if another enactment contains any
provision which is contrary to the provisions of the Code, such other provision
would apply in place of the particular provision of the Code. If there is no
such contrary provision in other laws, then provisions of the Code would apply
to the matters covered thereby. This aspect has been emphasized by a
Constitution Bench of this Court in para 16 of the decision in A.R. Antulay v. Ramdas
Sriniwas Nayak (1984 (2) SCC 500). It reads thus" "Section 4(2)
provides for offences under other law which may be investigated, inquired into,
tried and otherwise dealt with according to the provisions of the Code of
Criminal Procedure but subject to any enactment for the time being in force
regulating the manner or place of investigation, inquiring into, trying or
otherwise dealing with such offences. In the absence of a specific provision
made in the statute indicating that offences will have to be investigated, inquired
into, tried and otherwise dealt with according to that statute, the same will
have to be investigated, inquired into, tried and otherwise dealt with
according to the Code of Criminal Procedure. In other words, Code of Criminal
Procedure is the parent statute which provides for investigation, inquiring
into and trial of cases by criminal courts or various designations."
Section 5 of the Code cannot be brought in aid for supporting the view that the
Court of Session specified under the Act obviate the interdict contained in
Section 193 of the Code so long as there is no provision in the Act empowering
the Special Court to take cognizance of the offence
as a Court of original jurisdiction. Section 5 of the Code reads thus:
"5.-
Saving- Nothing contained in this Code shall, in the absence of a special
provision to the contrary, affect any special or local law for the time being
in force, or any special jurisdiction or power conferred, or any special form
of procedure prescribed, by any other law for the time being in force."
This Court in Directorate of Enforcement v. Deepak Mahajan (1994 (3) SCC 440)
on a reading of Section 5 in juxtaposition with Section 4(2) of the Code, held
as follows:
"It
only relates to the extent of application of the Code in the matter of
territorial and other jurisdiction but does not nullify the effect of Section
4(2). In short, the provisions of this Code would be applicable to the extent
in the absence of any contrary provision in the special Act or any special
provision excluding the jurisdiction or applicability of the Code".
Hence,
we have no doubt that a Special
Court under this Act
is essentially a Court of Session and it can take cognizance of the offence
when the case is committed to it by the Magistrate in accordance with the
provisions of the Code. In other words, a complaint or a charge- sheet cannot
straight away be laid down before the Special Court under the Act. We are re-iterating the view taken by this
Court in Gangula Ashok and Anr. v. State of A.P.
(2000 (2) SCC 504) in above terms with which we are in respectful agreement.
The Sessions Court in the case at hand, undisputedly has acted as one of
original jurisdiction, and the requirements of Section 193 of the Code were not
met.
The
inevitable conclusion is that the learned Sessions Judge, as the undisputed
factual position goes to show, could not have convicted the appellant for the
offence relatable to Section 3 (1) (xi) of the Act in the background of legal
position noted supra. That is accordingly set aside. However, for the offence
under Sections 354 and 448 IPC, custodial sentence for the period already
undergone which as the records reveal is about three months, would meet the
ends of justice considering the background facts and the special features of
the case. The appeal is accordingly disposed of.
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