Section 354A (2) provides that any man who commits offence under Section 354A IPC shall be punished with rigorous imprisonment: Sikkim High Court

THE HIGH COURT OF SIKKIM: GANGTOK Criminal Revisional Jurisdiction) SINGLE BENCH: THE HON’BLE MR. JUSTICE BHASKAR RAJ PRADHAN JUDGE Crl. Rev. P. No. 021 Padam Bahadur Bardewa S o Kharka Bahadur Bardewa R o Upper Temi P.O & P.S. Temi South Sikkim. Presently serving sentence at State Jail Rongyek East Sikkim) ….. Petitioner State of Sikkim Application under Section 397 and 401 of the Code of Criminal Procedure Code 1973. Mr. N. Rai Senior Advocate with Ms. Malati Sharma and Mr. Yozan Rai Advocates for the petitioner. Mr. Sudesh Joshi Public Prosecutor with Mr. Thinlay Dorjee Bhutia and Mr. Yadev Sharma Additional Public Prosecutors for the State respondent. Date of judgment: 25.11.2021. JUDGMENTBhaskar Raj Pradhan J. 1. Heard Mr. N. Rai Learned Senior Advocate for the revisionist and Mr. Sudesh Joshi Learned Public Prosecutor for the State of Sikkim. 2 Crl. Rev. P. No. 021 Padam Bdr. Bardewa vs. State of Sikkim This is an application under Section 397 and 401 of the Code of Criminal Procedure 1973 and sentenced him to undergo simple imprisonment for a term of one year under Section 354 IPC and further to undergo rigorous imprisonment for a term of one year and pay a fine of ₹ 5 000 under Section 354A IPC. In default of payment of fine the revisionist was to undergo simple imprisonment of one month. The learned appellate court declined to interfere with the conviction and sentence passed by the learned trial court. As the learned trial court had not specified the relevant clause of Section 354A IPC the learned appellate court held that the prosecution had been able to establish the case of the revisionist under Section 354A(1)(i) of IPC 1860. In the circumstances none of the points urged by Mr. N. Rai would amount to incorrectness illegality or impropriety of the appellate court. Section 354 IPC provides that 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 punished with imprisonment of either description for the term which shall not be less than one year but which may extend to five years and shall also be liable to fine. 5 Crl. Rev. P. No. 021 Padam Bdr. Bardewa vs. State of Sikkim Section 354A IPC relates to sexual harassment and punishment for sexual harassment. Sub section thereof provides that 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. 10. Section 354Aprovides that any man who commits the offence specified in clauseor clauseor clauseof sub section shall be punished with rigorous imprisonment for a term which may extend to three years or with fine or with 11. The testimony of the victim satisfies the ingredients of Section 354 as well as 354A(1)(i) IPC. The learned trial court as well as the learned appellate court found the revisionist guilty of the offences under Section 354 and 354A IPC. The learned court not only convicted the revisionist for the offences but also sentences him separately for the offences. The evidence of the victim makes it clear that it was a singular incident which led to the prosecution. The same set of facts constituted both the offences. In such circumstance Section 71 of the IPC would come into play. It provides that: “Where anything which is an offence is made up of parts any of which parts is itself an offence the offender shall not be punished with the punishment of more than 6 Crl. Rev. P. No. 021 Padam Bdr. Bardewa vs. State of Sikkim one of such his offences unless it be so expressly Where anything is an offence falling within two or more separate definitions of any law in force for the time being by which offences are defined or punished or where several acts of which one or more than one would by itself or themselves constitute an offence constitute when combined a different offence the offender shall not be punished with a more severe punishment than the Court which tries him could award for any one of such offences.” 12. In view of the clear provision of the Section 71 IPC this court is of the view that the sentence meted out to the convict under Section 354 IPC which is the lesser of the two offences cannot stand. It is set aside. The conviction of the revisionist are upheld the sentences are revised as above. The revisionist is in custody. He shall continue there until completion of the Approved for reporting : Yes : Yes Internet Bhaskar Raj Pradhan) Judge 

Summary: Section 354 IPC provides that 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 punished with imprisonment. Such an opinion was held by The Hon’ble High Court of Sikkim before The Hon’ble Mr. Justice Bhaskar Raj Pradhan in the matter of Padam Bahadur Bardewa Vs. State of Sikkim [Crl. Rev. P. No. 03 of 2021].  The facts of the case were associated with an application under Sections 397 and 401 of the Cr.PC. It was stated by the advocate representing the revisionist that there was a delay in lodging the FIR. It was also submitted by him that there were material contradictions. The case of Santosh Prasad vs. The State of Bihar [2020 3 SCC 443] was referred to wherein material contradictions were found and the way the alleged incident had taken place according to the prosecutrix was not probable, thus in such a situation the Supreme Court held that the evidence of the prosecutrix did not withstand the test of a sterling witness. All the submissions of the defence regarding the contradictions were extensively examined by the Trial Court and Appellate Court and concluded that no material contradictions were found. It was reported that the revisionist asked the victim to touch the steering and when she did the revisionist came close to her sniffed and smelled her and eventually touched her inappropriately. The evidence of the victim was found to be natural and probable. The revisionist was convicted under Section 354 and 354A of the IPC, 1860 by the trial court and sentenced him to rigorous imprisonment of 1 year and a fine of 5,000/- under Section 354A IPC. The victim’s testimony had satisfied the ingredients of Section 354 as well as 354A(1)(i) IPC. It was pretty evident that it was a singular incident that led to the prosecution. The learned trial court as well as the learned appellate court found the revisionist guilty of the offences under Section 354 and 354A IPC. Considering all the submissions, The Hon’ble Court stated that “In view of the clear provision of the Section 71 IPC this court is of the view that the sentence meted out to the convict under Section 354 IPC which is the lesser of the two offences cannot stand. It is set aside. The conviction of the revisionist are upheld; the sentences are revised as above. The revisionist is in custody. He shall continue there until the completion of the sentence.”