Karnataka High Court
Abdul Salim vs The State Of Karnataka on 6 April, 2022
Author: M. Nagaprasanna
Bench: M. Nagaprasanna
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF APRIL, 2022
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
CRIMINAL PETITION No.4348/2021
BETWEEN
ABDUL SALIM,
S/O MOHAMMAD MULAVI,
AGED ABOUT 32 YEARS,
R/AT LINGAPURA,
TUMKUR DISTRICT - 67.
... PETITIONER
[BY SRI.PRATHEEP C., ADVOCATE]
AND
1. THE STATE OF KARNATAKA,
REPRESENTED BY
TILAK PARK POLICE STATION,
TUMKUR DISTRICT.
REPRESENTED BY ITS
STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
BANGALORE - 01.
2. ROHITH D. S.,
S/O SIDDEGOWDA,
MAJOR,
R/AT 13/14E, NALILNASRI DRAKSHI THOTA,
VIDYANAGAR,
TUMKUR - 67.
... RESPONDENTS
[BY SRI.SHANKAR H.S., HCGP FOR R1;
R2 SERVED, UNREPRESENTED]
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THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C. PRAYING TO QUASH THE ORDER TAKING COGNIZANCE
DATED 26.07.2014 AND ENTIRE CRIMINAL PROCEEDINGS IN
C.C.NO.4015/2014 U/S 354A(i)(v) AND 509 OF IPC PENDING ON
THE FILE OF III ADDL. CIVIL JUDGE (JR.DN.) AND J.M.F.C.,
TUMAKURU.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION, THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioner is before this Court calling in question proceedings in C.C.No.4015/2014 registered for offences punishable under Section 354A(1)(v) and Section 509 of the IPC.
2. Heard Sri. Pratheep C., learned counsel appearing for the petitioner, Sri. Shankar H.S., learned HCGP appearing for respondent. Learned counsel appearing for the complainant though served, remains unrepresented.
3. Brief facts leading to the filing of present petition, as borne out from the pleadings, are as follows:
A complaint is registered by the brother of a lady, who claims to have lost her mobile, which comes in possession of the petitioner, after which, the petitioner is alleged to have called the 3 lady and spoken such words which would become punishable under Section 509 of the IPC. A complaint is registered by the brother of the lady, who had lost her phone and alleged such act upon the petitioner. The FIR is registered in Crime No.25/2014 for offence punishable under Section 509 of the IPC. The police after investigation, filed a charge sheet against the petitioner for offence punishable under Section 509 of the IPC and including offence punishable under Section 354A(1)(v) of the IPC. The proceedings have gone on since the petitioner has now knocked the doors of this Court calling in question the proceedings in C.C.No.4015/2014.
4. Learned counsel appearing for the petitioner submits that the ingredients of Section 509 of the IPC cannot be even laid against the petitioner, as the complaint itself does not narrate the abuses that are said on the mobile phone to the sister of the complainant. The charge sheet also does not narrate any instance that would become offence punishable under Section 509 of the IPC.
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5. The learned HCGP would submit that the charges have been framed and the matter is set for trial, the petitioner has knocked the doors of this Court belatedly and there are offences that would become punishable under Section 509 of the IPC and would submit that the petitioner has to come out clean in the trial.
6. I have given my anxious consideration to the respective submissions made by the learned counsel and perused the material on record.
7. The afore-narrated facts are not in dispute. The brother of the lady, who had lost her mobile phone registers a complaint which reads as follows:
"F ªÀÄÆ®PÀ vÀªÀÄä°è ªÀÄ£À« PÉƼÀÄîªÀÅzÉãÉAzÀgÉ £À£Àß vÀAVAiÀiÁzÀ gÉÆût gÀªÀgÀ ªÉƨÉÊ¯ï ¸ÀASÉå 9964 765 064 ªÀÄvÉÛ ¸Émï £ÀA¢UÉ CªÀgÀ ¥À¸ïð £ÀªÉA§gï 2013£Éà ¸Á°£À°è gÉʯÉé ¸ÉÖõÀ£ï gÀ¸ÉÛAiÀÄ°è PÀ¼ÉzÀĺÉÆÃVzÀÄÝ £ÀAvÀgÀ CzÀ£ÀÄß LrAiÀiÁ PÀA¥À¤ ªÀÄÄSÁAvÀgÀ £Á®ÄÌ ¢£À £ÀAvÀgÀ ¨ÁèPï ªÀiÁr¸À¯ÁUÀÄvÉÛ.
£ÀAvÀgÀ CzÉà £ÀA§£Àð ªÀÄvÉÆÛAzÀÄ ¹ªÀiï PÁqÀð£ÀÄß £À£Àß vÀAV Rjâ ªÀiÁr G¥ÀAiÉÆÃV¸ÀÄwÛzÀÝgÀÄ DzÀgÉ £À£Àß vÀAV ªÉƨÉʯÉÎ 95387 5 428 39£À £ÀA§gï ¤AzÀ PÀgÉ ªÀiÁr §ºÀ¼À PÉlÄÖ PÉlÖzÁV ¥ÀzÀUÀ¼À£ÀÄß §¼À¸ÀÄvÁÛ ªÀiÁqÀ£Ár ªÀiÁ£À¹PÀªÁV QgÀÄPÀļÀ ¤ÃqÀÄwÛzÁÝ£É C®èzÉ ¥ÉÆõÀPÀgÁzÀ £ÁªÀÅ ¸ÀºÀ DvÀ£À ªÉƨÉʯïUÉ PÀgÉ ªÀiÁr FvÀ£À ªÀvÀð£É ºÁUÀÆ F jÃw ªÀiÁvÀ£ÁqÀzÀAvÉ w½¹zÀgÀÆ ¸ÀºÀ £ÀªÀÄUÉ £ÀªÀÄUÉ £ÀªÀÄUÉ ¸ÀºÀ PÉlÖ PÉlÖ ¥ÀzÀUÀ½AzÀ ¤A¢¹gÀÄvÀÛ£É, £À£Àß vÀAV UÁA¢ü£ÀUÀgÀzÀ°è ªÁ¸ÀªÁVgÀÄvÁÛgÉ.
DzÀÝjAzÀ vÁªÀÅUÀ¼ÀÄ ¸ÀzÀj ªÉƨÉÊ°ßAzÀ PÀgÉ ªÀiÁqÀÄwÛgÀĪÀ ªÀåQÛ¬ÄAzÀ £À£Àß vÀAVUÉ ¸ÀÆPÀÛ gÀPÀëuÉAiÀÄ£ÀÄß PÉÆr¹ QgÀÄPÀļÀ ¤ÃqÀzÀAvÉ vÀ¦à¸À®Ä ¥Áæyð¸ÀÄvÉÛãÉ.
¢£ÁAPÀ 5.2.2014 jAzÀ E°èAiÀĪÀgÉUÉ ¥sÉÆÃ£ï ªÀiÁr ¨ÉÊ¢gÀÄvÀÛ£É."
8. The narration in the complaint is that the petitioner has meeted out mental torture upon the complainant, as he comes in possession of the phone of the sister of the complainant and in the same breath submits that, number of the petitioner was blocked immediately. The offences now set for trial is ones punishable under Sections 409 and 354A(1)(iv) of the IPC. The Code does not contain an offence which would become punishable under Section 354A(i)(v) of the IPC. Section 354A of the IPC, reads as follows:
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"354A. Sexual harassment and punishment for sexual harassment:
(1) A man committing any of the following acts-
(i) physical contact and advances involving unwelcome and explicit sexual overtures; or
(ii) a demand or request for sexual favours; or
(iii) showing pornography against the will of a woman; or
(iv) making sexually coloured remarks, shall be guilty of the offence of sexual harassment.
(2) Any man who commits the offence specified in clause (i) or clause (ii) or clause (iii) of sub-section (1) shall be punished with rigorous imprisonment for a term which may extend to three years, or with fine, or with both.
(3) Any man who commits the offence specified in clause (iv) of sub-section (1) shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both.]"
9. The provision stops at Section 354A(1)(iv) of the IPC. The allegation is that the petitioner has indulged in an act, 7 which would become punishable under Section 354A(1)(v) of the IPC. Such a provision not being there in the Code, the trial cannot be conducted on an offence, which is not even in the Code. Therefore, Section 354A(1)(v) of the IPC cannot be invoked in the case at hand. Insofar as Section 509 of the IPC is concerned, Section 509 of the IPC reads as follows:
"509. Word, gesture or act intended to insult the modesty of a woman Whoever, intending to insult to insult the modesty of any woman, utters any word, makes any sound or gesture, or exhibits any object, intending that such word or sound shall be heard, or that such gesture or object, shall be seen, by such woman, or intrudes upon the privacy of such woman, [shall be punished with simple imprisonment for a term which may extend to three years, and also with fine]."
For an offence to become punishable under Section 509 of the IPC, the modesty of a woman should be insulted by utterance of words, sound or gesture by the accused.
For an offence to become punishable under Section 509 of the IPC, the specific words or utterances made by the petitioner 8 should have been brought out either in the complaint or in the charge sheet. The summary of the charge sheet as found in Column No.17 reads as follows:
"17. PÉù£À ¸ÀAQë¥ÀÛ ¸ÁgÁA±À:
w®Pï ¥ÁPÀð ¥Éưøï oÁuÁ ¸ÀgÀºÀ¢ÝUÉ ¸ÉÃjzÀ ªÁå¦ÛAiÀÄ ¥ÀæzÉñÀªÁzÀ UÁA¢ü£ÀUÀgÀzÀ°è ¢£ÁAPÀ:05.02.2014gÀAzÀÄ PÁ®A £ÀA§gï 12gÀ°è PÀAqÀ DgÉÆæAiÀÄÄ ¸ÁQë-02 gÀªÀgÀ zÀÆgÀªÁt 9964765064 £ÀA§gï UÉ PÀgÉ ªÀiÁr DgÉÆæ gÀªÀgÀ zÀÆgÀªÁt ¸ÀASÉå 9538742839 ¬ÄAzÀ ¥sÉÆÃ£ï ªÀiÁr ¸ÁQë-02 gÀªÀgÀ ªÀiÁ£ÀPÉÌ PÀÄAzÀÄ GAmÁUÀĪÀAvÉ C²èî ªÀiÁvÀÄUÀ½AzÀ ¤A¢¹gÀĪÀÅzÀÄ, ºÁUÀÆ PÉüÀ®Ä ºÉÆÃzÀ ¸ÁQë--01 CªÁZÀå ±À§ÝUÀ½AzÀ ¤A¢¹gÀĪÀÅzÀÄ, vÀ¤SɬÄAzÀ zÀÈqsÀ¥ÀlÖ ªÉÄÃgÉUÉ F zÉÆõÁgÉÆÃ¥Àt ¥ÀnÖ."
10. The summary of the charge sheet as quoted hereinabove is as vague as vagueness could be. There is no specific narration of utterances that would touch upon the modesty of the victim. In identical circumstances, a Co-ordinate Bench of this Court interpreting Section 509 of the IPC in Crl.P.No.5465/2016 dated 14.08.2019, has held as follows:
"6. In order to constitute the offence under Section 509 of IPC, the accused should 9 utter any word or make any sound or gesture or exhibit any object, with an intention that such words or sound shall be heard or such gesture or object shall be observed or seen by the woman or that the accused must intrude upon the privacy of such a person. In the instant case, the entire case of the prosecution is based on the incident that is alleged to have taken place in the class room. A reading of the complaint and charge-sheet does not mention any specific words or utterances made by the petitioner. On the other hand, the case of the prosecution is that while discussing the marks secured by CW.4 in the accounts subject, the petitioner, who was then the professor dealing with the subject used vulgar and filthy words against CW.4. The petitioner dealing with the subject, if for any reason, reprimanded CW.4 for not securing marks and in the process used any harsh words, the same does not fall within the ambit of Section 509 of IPC. The material on record indicate that CW.4 did not lodge any complaint regarding the 10 incident nor the classmates of CW.4 have come up with any specific allegations against the petitioner, instead the Secretary of Society has set the law in motion. Even in the complaint, CW.4 has not reproduced the alleged statement or utterance made by the petitioner. Except stating that on account of the abuses hurled by the petitioner, CW4 lost conscious and was taken to the nursing home, she has not narrated any offending remarks touching the modesty of CW.4. Even though it is the case of the prosecution that on account of alleged incident, CW.4 fainted in the class room and was taken to Nursing Home, no material is collected to show the real cause of CW.4 fainting in the class room. In the absence of any such material, the case set up by the prosecution is rendered vulnerable.
7. That apart, the allegations made in the complaint and the charge-sheet and the supporting material produced by the prosecution, in my view, does 11 not prima-facie make the ingredients of the offence under Section 509 IPC. I have gone through the statement of CW.4. In her statement, she has merely stated that since she secured only 53 marks in the accounts subject, petitioner herein abused and insulted her. This goes to show that the petitioner merely reprimanded CW.4 for securing low marks and nothing more. There is nothing in the statement of CW.4 to indicate that the petitioner herein used any words of utterance touching the modesty of the petitioner. In the absence of such material, prosecution of the petitioner for the alleged offence under Section 509 of IPC is wholly baseless and cannot be sustained."
(emphasis supplied)
11. In the light of the preceding analysis of the fact that, there is no offence under the Code which is Section 354A(1)(v) of the IPC and the ingredients of Section 509 of the IPC not being satisfied in the complaint and in the charge sheet, I deem it appropriate to terminate the proceedings against the petitioner, 12 failing which, it would become an abuse of the process of the law and result in miscarriage of justice.
12. For the aforesaid reasons, the following:
ORDER i. Criminal Petition is allowed.
ii. Proceedings pending in C.C.No.4015/2014 before the Additional Civil Judge (Jr.Dn) & JMFC, Tumkur, stands quashed qua the petitioner.
In view of the disposal of the main petition, I.A.No.1/2021 also stands disposed.
Sd/-
JUDGE SJK