Patna High Court
S.P. Mullik, J. vs State Of Orissa And Anr. on 14 May, 1981
Equivalent citations: 1982(30)BLJR11
JUDGMENT S. Shamsul Hasan, J.
1. An incident that can almost be described as trival created a whirlpool dragging the petitioner to his very destruction and resulting in his conviction under Section 354 of the Indian Penal Code and sentence of simple imprisonment for six months, which may ultimately result in his dismissal from service.
2. The place of occurrence is Rourkela, Cuttak Road. The time of occurrence is about mid-night and the date is the winter night of 27-12-1967. The persons involved in the occurrence are just two, Dr. Minati Patnaik (P.W. 8) who is a lady doctor, travelling in the bus and the petitioner, who is a high ranking Police Officer of I. P. S, Cadre in the State of Orissa. The criminal act of the petitioner was the touching of the belly of the lady doctor. Both the personalities involved in this drama boarded the bus at Rourkela. the petitioner later during the journey, occupying a seat just behind the lady doctor. The passengers in the bus, including these two persons, were sleeping. It is said that once she felt some body touching her belly when she became alert. She found some body touching her belly below her breast. It is said in the evidence that she was not sure whether it was the hand of a stranger coming stray or her own Thus alerted when she found a hand touching her belly for the second time she immediately caught hold of the hand and immediate reprisal followed in the form of beating inflicted on the petitioner by the lady doctor with her hands as well as cbappal. the matter, as far as the lady doctor (P. W. 8) was concerned ended there because she did not file any case either before the police, perhaps because of the rank and position of the petitioner, or before the Court or before any other higher Executive of the State, except (ille) to her husband and father.
3. The matter did not end there. The ripple caused by a hand over a belly covered the whole of the State of Orissa and demonstration resulted ultimately in a judicial enquiry which was conducted by S.K. Ray, J. who found the allegation to be true, resulting in the filing of a complaint after about two years by one Mr. R. N. Patnaik, Under Secretary to the Government of Orissa, before the Court.
4. The enormous amount of public sentiment that was generated over this incident perhaps resulted in the transfer of this case outside Orissa on the order of the Supreme Court arid that is how it came to be tried in Dhanbad, where the petitioner was convicted and sentenced, as mentioned above, his appeal also being dismissed.
5 When the matter came to this Court a rule was issued on the question of sentence. Against this limited rule the petitioner moved the Supreme Court where his Application at the orders of that Court has been kept pending till the disposal of this application.
6. The contention of learned Counsel for the petitioner was that on merit this petitioner deserved to be acquitted and invited this Court to hear the petition on merit in spite of limited rule, which, this Court, according to him, was fully empowered to do. Following this point his contention was that in law no offence has been committed by this petitioner and his conviction and sentence are bad in law. Alternatively, he submitted that the sentence is too harsh.
7. The State of Orissa was represented by the Advocate General of Bihar. His submission was that this Court was not empowered to go into the merits of the case when a limited rule has been issued and submitted further that since the justifiability of the limited rule is still sub-judice in the Supreme Court, this Court should not interfere on merit, unless, the Supreme Court allows the application of the petitioner. He further submitted that even on merit the application deserves to be dismissed. His submission was that undoubtedly not only the occurrence has been proved but an offence has been made out, the petitioner thus deserving the sentence that he has received.
8. I will first take up the question whether a limited rule on the question of sentence precludes the Court from examining the matter on merit and under what circumstances the Court could do so if there is no bar to such a step.
9. The High Court has derived its power of revision from Sections 397 and 401 of the Code of Criminal Procedure, 1973, which read as follows:
Section 397.-"(1) The High Court or any Sessions Judge may call for arid examine the record of any proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior Court, and may, when calling for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record."
*** (2) The powers of revision conferred by Sub-section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding.
(3) If an application under this section has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them.
Section 401. "(1) In the case of any proceeding the record of which has been called for by itself or which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of Appeal by Sections 386, 389, 390 and 391 or on a Court of Session by Section 307 and, when the Judges composing the Court of revision are equally divided in opinion, the case shall be disposed of in the manner provided by Section 392.
(2) No order under this section shall be made to the prejudice of the accused or other person unless he has had an opportunity of being heard either personally or by pleader in his own defence.
(3) Nothing in this section shall be deemed to authorise a High Court to convert a finding of acquittal into one of conviction.
(4) where under this Code an appeal lies and no appeal is brought, no proceeding by way of revision shall be entertained at the instance of the party who could have appealed.
(5) where under this Code an appeal lies but an application for revision has been made to the High Court by any person and the High Court is satisfied that such application was made under the erroneous belief that no appeal lies thereto and that it is necessary in the interests of justice to do, the High Court may treat the application for revision as a petition of appeal and deal with the same accordingly.
10. From these sections it appears that this Court as well as the Sessions Court can call for records of any proceeding pending in an inferior court and examine its legality etc. This power can be exercised either on an application or sua motu, as I read the sections. It is at the stage of actual hearing of the application when the Court exercises powers granted under these sections. At the stage of admission the Court merely decides to call for the record, I feel that once the record of a proceeding of an inferior Court is before this Court, no restriction imposed in the order calling for the records will inhibit the discretion of the Court disposing of the application to go into the matter on merit and correct any illegality or impropriety in any proceeding.
11. Learned Counsel for the petitioner cited several rulings of this Court to indicate that in the past this Court has interfered on merits when even limited rule had been issued. The cases so cited are : Sk. Idris v. Emperor A.I.R. 1939 Pat. 349, Budhu Oraon v. State of Bihar 1977 B.B.C.J. 425, Kamleshwari Thakur v. State , and Criminal Revision No. 448 of 1980, disposed of on 2-4-1981. I have also followed similar course recently in one of my decisions.
12. The learned Advocate-General in reply relied on two decisions of the Supreme Court in Jagdev Singh v. State of Punjab , and Ram Sarup v. State of Haryana . Both these decisions of the Supreme Court arise out of the restricted leave granted under Article 136 of the Constitution of India. In both these cases leave was granted only on the question of sentence and an attempt was made to persuade the Court to go into the question on merit as a whole which the Court declined to do. Learned Counsel relying on these decisions submitted that this Court also should adopt the same principle while disposing of this application. Article 136 reads as follows;-
(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any Court or tribunal in the territory of India.
(2) Nothing in Clause (1) shall apply to any judgment, determination, sentence or order passed or made by any Court or tribunal constituted by or under any law relating to the Armed Force.
13. A comparative study of Article 136 of the Constitution of India and Sections 397 and 401 of the Code of Criminal Procedure indicates that they are not identical by any means. While under Article 136 of the Constitution the power of the Supreme Court is invoked on an application by a party, revisional power of a High Court can also be exercised suo motu by the Court for the purposes indicated in these sections. While Article 136 clothes the Supreme Court with appellate power, the power of a High Court in its revisional jurisdiction is entirely supervisory and corrective, though the High Court, while dealing with an application in revision is permitted, to exercise all the powers of an appellate Court. In my view, therefore, the principles laid down in regard to the powers of the Supreme Court under Article 136 of the Constitution of India relating to the limited rule cannot be applied to the revisional powers of the High Court. The decisions cited by learned Counsel for the petitioner indicate that this High Court in the past had examined the application on merit, though the initial rule was issued only on the question of sentence. I, therefore, hold that there is no bar to a Court while deciding a matter in exercise of its revisional power to go into the correctness of the order or judgment under revision even if a limited rule has been issued, since the Court is entitled to examine the legality, propriety and correctness of the same.
14. It has now to be examined whether this is a fit cause in which in view of the limited rule on the question of sentence in the circumstance of this case an odysees into realm of the justifiability of both the sentence and conviction can be made. In view of the following factors I feel that this case deserves consideration on merit also. Firstly, the sentence and its inevitable consequence is not compatible with the action of the petitioner, since it was entirely, if accepted as true, a very trivial incident, Secondly, it cannot be forgotten that the incident was subjected to an agitation resulting in a judicial inquiry and the petitioner was the victim of the intense regional chauvinism and parochial animosity his only hope being the judicial process. Thirdly, the official position that the petitioner enjoys as well as the status of the victim lady both of whom enjoy immense amount of respectability deserves further consideration. Lastly, the fact that the lady herself did not invoke the authority of law or any other authority is also an important factor in this regard.
15. While examining the question as to whether any offence has been committed by this petitioner or not it will be important to set out the ingredients of Section 354 of the Indian Penal Code under which he has been convicted. The essential ingredients of that section is the use of criminal force or assault against a woman for the purpose of outraging her modesty, it will thus be clear that there must either be an assault or the use of criminal force. Force has been defined in Section 349 and criminal force has been denned in Section 350. A person is said to use force when he causes motion or change of motion or cessation of motion to another person or the above in subtance, which brings it into contact with any part of the other person's body or with anything that the other is wearing or carrying, or with any thing so situated that such contact affects other's sense of feeling. This should be done by his own bodily power or by use of some substance or by inducing any animal to change this motion. The use of force will become criminal when it is done against the consent of any person with intention of committing an offence or to cause injury, fear or annoyance to any person. In this case admittedly no assault was resorted to. It was, however, essential to establish that force was used for the commission of offence. In my view, by merely putting a hand on the belly of female by itself could not be construed to indicate that the petitioner was using criminal force within the meaning of this section for the purpose of committing an offence or injury or annoyance. None of these ingredients has either been proved or found. Culpable intention is an essential ingredient. The Courts below have straightway presumed that all the ingredients of an offence under Section 354 are satisfied simply because the petitioner put this hand on the belly of the lady. From this fact alone it cannot be inferred that the petitioner intended to commit any offence or injury or annoyance to the victim lady. At the highest, it may be an attempt to draw the attention of the lady, which proved abortive. But that cannot be said to amount to use of criminal force. There is no evidence or even allegation that any restriction was caused to the movements of the victim lady nor it appears that any criminal act was intended to be committed, Even if the incident is accepted as true, the basic ingredients of the section have not been proved.
16. In my view, the action of the petitioner cannot be held to be an act of criminality intentional and deliberate but a pure accident for which the attitude of the lady is not filing a case is an indication. the action of the lady in immediately beating up the petitioner and not moving the Court is indicative of the act that the lady was quite satisfied with the punishment meted out by her and she did not want to go any further in the matter. Even if the action of the petitioner was accidental, the reaction of the victim could have been the same, and, therefore, an inference of criminality cannot be based on her conduct. I am proceeding on the footing that the incident of beating of the petitioner by the victim lady is proved though that itself is not free from doubt, since the two corroborative witnesses, P. Ws. 2 and 9, have realised from supporting the same, I therefore consider the incident as not proved,
17. teamed counsel for the petitioner also argued vehemently that the evidence of the victim lady has not been corroborated on the material particulars. I do not consider it necessary to discuss this point since the incident of touching the belly could be not corroborated, the incident of beating undoubtedly has also not been corroborated but that was not the genesis of the occurrance but only follow up step by victim lady. Nothing, however, turns on this question in view of what I have held that no offence in law has been committed by the petitioner. The evidence of the lady doctor was also placed before me by learned Counsel for the parties. She had stated that she did not inform any body except writing letters to her relations, about this occurrence. She has also stated that when the petitioner tried to feel the belly for the first time, she was not sure whether it was her own hand or it was the hand of some one else or whether it was a hand at all. She also stated that she was wearing pull-over since it was winter night. It may also be stated here that she told one Dr. Mishra that one of the police officers sitting behind her bad put his band on her buttock or back. The victim lady has denied to have made such a statement to Dr. Mishra. These also show that the lady was not hereself sure as to who had done what. From these statements it also appears that the allegation against the petitioner is shrouded in uncertainty. If the victim lady was really waring a pulloover, which she admits, then before the band reached the naked belly, the movement required to shift the pullover itself would attract attention. I feel firstly that the touching of the belly by the petitioner had not been proved beyond reason-ale doubt and secondly, even if he did touch it, it was purely accidental, because, the first incident is rendered completely doubtful in view of the aforesaid statements and, since, therefore the body of the lady was touched only once, it appears to be purely accidental.
18. My view is fortified by the fact, as already stated, that there is no evidence circumstantial or direct to prove that any criminal force was used within the meaning of that section. There is also no finding to that effect either by the trial Court or the appellate Court. Undoubtedly, without such a finding the conviction cannot be sustained.
19. Learned Counsel for the State has relied on a decision of the Supreme Court in the case of State of Punjab v. Major Singh . It was submitted on the basis of this decision that the mere touching of the body of a female brings the act within the scope of Section 354 of the Indian Penal Code. In this case the allegation was that accused walked into the room where a female child of 7 1/2 months lay and having stripped himself naked below the waist kneeled over the child and gave vent 10 his unnatural luet and in the process caused injuries to the vagina of the child. The question discussed in this decision is whether the reaction of the victim is eseential while deciding the question whether the accused had outraged the modesty of a woman. It was argued that the victim being only a baby, her modesty could not be outraged, while repelling this submission the Supreme Court held that the reaction of a woman, though very relevant, is not always decisive and cited the example of a woman who is sleeping or who is an idiot unable to comprehend what is going on or if she is under the spell of anaesthesia. Thus, even though under these circumstances the victim is unable to appreciate the significance of the act, the offence would be complete. As I understand it, this decision does not hold, as argued by the learned Advocate-General, that merely the touching of a woman, if she is under the condition stated above, brings the action within the scope of Section 354 of the Indian Penal Code. The following sentence in paragraph 16 of the decision in the case of Major Singh "the culpable intention of the accused is the crux of the matter" completely answers the submission of the learned Advocate-General. Unless the culpable intention of the accused is proved, the action of the petitioner cannot be an act of criminality.
20. Summing up I hope that the action of the petitioner does not amount to an offence under Section 354 of the Indian Penal Code.
21. Before I end, another matter needs to be disposed or end that is the submission of the advocate-General already stated that this Court should not go into the merits of the matter in view of the special leave application pending in the Supreme Court. The petitioner had gone to the Supreme Court against the limited rule issued by this Court. The Supreme Court was pleased to adjourn the disposal of that application till the disposal of this application. As I understand this order, it only means this that the Supreme Court will consider the special leave application only after the decision of this application. I am not in agreement with the submission of the learned Advocate General that since the legality and justifiability of the limited rule is sub-judice before the Supreme Court, this Court is precluded from going into this matter on merit.
22. In the result, I hold that the conviction and sentence of the petitioner are bad in law and on fact and they are, accordingly, set aside the petitioner is released of his bail bond. The application is allowed.