RUPAN DEOL BAJA.I AND ANR.

KANWAR PAL SINGH GILL AND ANR.

OCTOBER 12, 1995

[DR. AS. ANAND AND M.K. MUKHERJEE, J.J.]

Indian Penal Code, 1861!-Sections 354, 509----Modesty of woman- A1caning of--Test for asce1taining lvhether n1odesty has been outraged-Action of offender capable of shocking sense of decency of a woman.

Sections 339 & 34 l-Wrongfitlly res1raine1}-{)jji:nce of-Standing in front of a lady in such a n1anner that she had to nzove backward-It cannot be said /Ital he 'wrongfully restrained' he1--0ffence u/s 341 not made out.

Section 95--0ffences of llivial nature-Expression 'hann' (ncludes physical injiuy as also injurious niental reoction--Offence relating to n1odesty D of won1an-Undcr no circ1unstances it can be llivial-Sec. 95 not applicable.

C1in1inal Procedure Code, 1973--Section 482uashing an FIR or con1plaint-P1inciplc of /a1v.

Section 173--:Police repon--Cotut taking cognizance--Judicial discretion--Police repo1t reconunending discharge of accused-Person agg1ievcd raising objection to acceptance of police repon-Necessity tu record reasons.

The Appellant, an Ollicer of the Indian Administrative Service belonging to the Punjab Cadre ind then \\'orking as the Spetial Sctretar.r, F Finance, lodged a corn plaint alleging comn1ission of oflences u/ss 341, 342, 352, 354 and 509 of the Indian Penal Code by the respondent, the Director General of Police, Punjab at a dinner party. Treating that con1plaint as the First Infor1nation Report a case "'as registered and investigation "'as taken up. Husband of the appellant also lodged a complaint in the Court G of the Chief Judicial l\1agistrate for the same otl'ences, alleging: that respondent being a high-ranking Police Ollicer the Police had neither arrested hin1 on his wile's complaint nor conducted investigation in a fair and hnpartial manner and apprehending that the Police "'ould conclude the investigation by treating the case as untraced he \Vas tiling the complaint. In the meantime respondent n10\•ed the High Court by filing a H

petition u/s 482 Cr. P.C. for lJUashing the FIR. An interim order was passed staying the investigation into the FIR lodged by the appellant, but not the proceedings initiated on the complaint of her husband. Subse11uently, however both the HR and the complaint were quashed.

In the FIR, it was stated that one evening, appellant accompanied by her hushand had gone to the residence of a colleague of theirs, in response to an invitation for dinner. There were 20/25 couples present including the respondent, who had come \\-'ithout his \\ifC, and some other senior c; overnment Ollicers. The ladies were sitting segregated in a large semi-circle and the gentlemen in another large semi-circle uith the groups facing each C other. The respondent walked across to the circle of ladies and joined them occupying a vacant chair about 5 to 6 chairs to the left of where the appellant was sitting. Slowly all the ladies sitting to the right and left of him started going into the house. The respondent called out to the appellant and said that she should come and sit next to him as he wanted to

D talk to her. Responding to his such request when the appellant went to sit in a chair next to him, the respondent suddenly pulled that chair close to his chair. Realising something was wrong she went back to sit With the ladies. Aller about 10 minutes respondent came and stood in front ol' her so close that his legs were about 4 11 from her knees. He then by an action with the crook of his finger asked her to 'get up immediately' and come E along with him. When she strongly objected to his behaviour he re11eated

his earlier command. She tried to leave the place but could not as he had blocked her way. When she drew her chair back and turned backwards, he slapped her on the posterior in the full presence of the ladies and gents.

F The High Court held that the allegations made therein did not

disclose any cognizable offence; that the nature ol' harm allegedly caused to the appellant did not entitle her to complain about the same in view ol' section 95 IPC; that the allegations were unnatural and improbable; that the Investigating Oflicer did not apply his mind to the allegations n1ade in the FIR as there was no reason to suspect commission of a cognizable otl"ence, which was unreasonable and unexplained delay of 11 days in lodging the FIR.

These appeals had been filed against the judgment ol'the High Court.

The appellant contended that in exercise ol' its powers u/s 482 Cr.P.C., the High Court should not have interferred with the statutory powers of the

•.-

R.D. BAJ AT 1. K.P.S. GILL 239

police to investigate into cognizable offences and <1uashed the Fl R specially A when the allegations made in the FIR constituted otiences under the Indian Penal Code and this unjustifiable interference \\'as in clear violation of the principles laid do\vn; that the finding of the High Court that the allegations made in the FIR attracted the provisions of Section 95 !PC was patently wrong as in a case where the n1odesty of a W(nnan is involved, that Section

cannot have any manner of application; that the story given out in the FIR B

was neither improbable nor unreliable as the High Court thought of; that a satisfactory explanation for the delay had been given in the FIR itself and the delay of 11 days in lodging an FIR could not be made a ground for quashing it, and that the High Court was wholly unjustified in taking exception to the police officer's registering the FIR and initiating the investigation for, once it was found that the FIR disclosed cognizable offence, it was the statutory obligation of the police to investigate the same.

TI1e respondent submitted that the impugned judgment of the High Court was a well considered and well reasoned one so far as it held that

the FIR did not disclose any cognizable offence; that the allegations made D therein being trivial attracted the provisions of Section 95 !PC and that the allegations were improbable; that even if it was assumed that he had outraged the modesty of appellant still no offence u/s 354 IPC could be said to have been committed by him for the other ingredient of the offence, namely, that he intend to do so was totally lacking.

The question raised for consideration was under what circumstances and in what categories of cases the High Court can quash an FIR or a complaint in exercise of its powers under Article 226 of the Constitution or u/s 482 CrPC.

Before the High Court was moved by the respondent, the police had completed the investigation and sent the papers relating thereto to the Legal Remembrancer-cum-Director to Prosecution for his opinion. After

his opinion was received the investigating officer prepared the 'police report' and forwarded it, through Senior Superintendent of Police to the 'llaka' Magistrate stating that the evidence on record did not substantiate G the accusalions of the complaint; The Magistrate accepted the report and ordered that the case be filed as 'untraced'. Subsequently, the Chief Judicial Magistrate entertained an application filed by the appellant wherein she prayed for a direction to the prosecution to give her an opportunity to inspect the police report submitted u/s 173 CrPC. The Chief H

Judicial Magistrate was the Legal Rememberancer who had earlier given the opinion that no case for going to the trial was made out. He hi1nself now passed an order directing issuance of notice. Formal order regarding the receipt of the police report was belatedly made. No reason was given for its acceptance.

Disposing of the matter, this Court

HELD : 1.1. The ultimate test for ascertaining whether modesty of a woman has been outraged is, the action of the offender such as could be perceived as one which is capable of shocking the sense of decency of a C woman. [251-A-B]

State of Punjab v. Major Singh, AIR (1967) SC 63, relied on.

1.2. In the instant case, the alleged act of the respondent in slapping the appellant on her posterior amounted to 'outraging of her modesty' for D it was not only an affront to the normal sense of feminine decency but also an affront to the dignity of the lady - 'sexual overtone' or not, notwithstanding. The sequence of events narrated by the appellant indicated that the slapping was the final to the earlier overtures of respondent, which considered together, indicated that he had the requisite culpable intention.

E Even if he had no such intention he must be attributed with such knowledge, as the alleged act was committed by him in the presence of a gathering comprising the elite of the society. There was nothing in the FIR to indicate that the indecent act was committed by him, accidentally or by mistake or it was a slip. Apart from the offence u/s 354 !PC, an offence u/s 509 lPC had also been made out on the allegations contained in the FIR F as the words used and gestures made by respondent were intended to insult the modesty of the appellant. [252-C-F]

2. So far as the offence u/s 341 IPC was concerned, the only allegation relating to the same was that the respondent stood in front of the appellant G in such a manner that she had to move backward. From such act alone it could not be said that he 'wrongfully restrained' her within the meaning of Section 339 !PC to make him liable u/s 341 IPC. [252-H, 253-A]

3. Section 95 IPC is intended to prevent penalisation of negligible wrongs Qr of offences of trivial character. The expression 'harm' appearing H in the Section is wide enough to include physical injury as also injurious

R.D. BAJAJ v. K.P.S. GILL 241

mental reaction. Section 95 IPC had no n1anner of application to the A allegations made in the Fl R. On perusal of the FIR, it was found that the respondent, the top n1ost ollicial of the State Police, indcentl)' beha\1ed with a Senior Lady IAS Otlicer, in the presence of a gentry and inspite of her raising ojections continued \Vith his such behaviour. Section 95 cannot have any 1nanner of application to an offence relating to modest)· of woman as under no circumstances can it be trivial. [253-H, 254-A-C]

Veeda Menezes v. Yu.rnI Khan, AIR (1966) SC 1773, relied on.

4. At the stage of quashing an FIR or complaint the High Court is

not justified in embarking upon an em1uiry as to the probability, reliability C or genuineness of the allegations made therein. An FIR or a complaint may be quashed if the allei, oations made therein are so absurd and inherently improbable that no prudent person can ever reach a just conclusion that there is sutlicient ground for proceeding against the accused. On the allegations in the FIR it was not possible to do so. Therefore the High Court committed a gross error of law in quashing the FIR and the complaint. (254-t'-G]

State of Hm)'ana v. Bhajan Lal, (1992] Supp. l SCC 335, relied on.

5. Since at the time of taking cognizance the Court has to exercise its judicial discretion it necessarily follows that if in a given case . as the•: present one the complainant, as the person aggrieved raises objectiori's i, to the acceptance of a police report which recommends discharge 0C:the 1 ' accused and seeks to satisfy the Court that a case for taking cognizance'

\Yas made out, but the Court overrules such objection, it is just an'd'•·

desirable that the reasons therefor be recorded. Reasons introduce 'clarity i and n1inimise chances of arbitrariness. That necessarily means that i recording of reasons will not be necessary when the Court accepts such police report without any demur from the complainant. (257-H, 258-ABJ

As the order of the l\1agistrate in the instant case did not contain any reason whatsoever, even though it was passed after hearing the objections of the complainant it was liable to be set aside. The Chief Judicial Magistrate, Chandigarh is directed to take cognizance upon the police report in respect or the' offences u/ss 354 and 509 JPC and try the case

himself in accordance with law. [258-C, 259-D] H

A H.S. Bains v. State, AIR (1980) SC 1983, relied on.

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 1183 of 1995 Etc.

From the .Judgment and Order <lated 29.5.R9 of the Punjab & Haryana High Court in Cr!. Miscc. Nn. 9041-M of 1988.

K.T.S. Tulsi, Additional Solicitor General, Ms. Indira .laisingh, G.L.

Sanghi, C. Jayaraj, Ms. Anilha, Sunil K. Jain, .Jatinder K. Bhatia, K. Sultan Singh, Ms. Suman Khaitan, Krishna Kumar, Darshan Singh R.S. Suri and Ms. Kamini Jaiswal for the Appearing parties.

The .I udgment of the Court was delivered by

M.K. MUKHERJEE, J. Special leave granted. Heard the learned counsel appearing for the parties.

D These two appeals have been heard together as they arise out of one

and the same incident. Facts leading to these appeals and relevant for their disposal are as undeT :

On July 29, 1988, Mrs. Rupan Deol Bajaj, an Officer of the Indian Administrative Service (I.AS.) belonging to the Punjab Cadre and then working as the Special Secretary, Finance, lodged a complaint with the Inspector General of Police, Chandigarh Union Territory alleging commission of offences under Sections 341, 342, 352 354 and 509 of the Indian Penal Code ("!PC" for short) by Mr. K.P.S. Gill, the Director General of Police, Punjab on July 18, 1988 at a dinner party. Treating that complaint as. the First Information Report (FIR) a case was registered by the Central Police Station, Sector 17, Chandigarh and investigation was taken up.

Thereafter on November 22, 1988, her husabnd Mr. B.R. Bajaj, who also happens to be a senior l.A.S. officer of the Punjab Cadre, lodged a complaint in the Court of the Chief .Judicial Magistrale for the same offences, alleging, inter alia, that Mr. Gill being a high-ranking Police ()fficer the Chandigarh Police had neither arrested him in connection \vith the case registered by the Police on his \vife's con1plaint nor conducted investigation in a fair and in1partial manner and apprehending that the Police would conclude the investigation by treating the case as untraced he was filing the complaint. On receipt of the complaint the Chief .I udicial H Magistrate transferred it to a Judicial Magistrate for disposal and the

R.D.BAJAJ v. K.P.S.GILL[M.K.MUKHERJEE . .T.J 243

latter, in view of the fact that an investigation hy the Police was in progress A in relation to the same offence~, called for a report fron1 the lnv~.stigating Officer in accordance with Section 210 of Code Criminal Procedure ("Cr.

P.C." for short). Jn the meantime - on December 16, .198R to he precise - Mr. Gill moved the High Court by filing a petition under Section 482 Cr.

P.C. for quashing the F.I.R. and the complaint. On that petition an interim order was passed staying the investigation into the F.I.R. lodged by Mrs.

Bajaj, but not the proceedings initiated on the complaint of Mr. Bajaj.

Resultantly, the learned Judicial Magistrate proceeded with the complaint case and examined the complainant and the witnesses produced by him.

Thereafter, Mr. Bajaj moved an application before the learned Magistrate

for summoning Mr. Y.S. Ratra, an J.A.S. Officer of the Government of C Punjab and Mr.-J.F. Rebeiro, Advisor to the Governor of Punjab for being examined as witnesses on his behalf and for producing certain documents, which was allowed. Instead of appearing personally, the above two Officer sought for exemption from appearance; and the District Attorney, after producing the documents, filed an application claiming privilege under D Sections 123/124 of the Evidence Act.in respect of them. The)earned Magistrate rejected the prayer of the above two officers and also rejected, after going through the documents, the claim of privilege, being of the opinion that the documents did not concern the affairs of the State.

Assailing the order of the learned Magistrate rejecting the claim of privilege, the State of Punjab filed a Criminal Revision Petition which was allowed by the High Court by its Order dated January 24, 1989. The petition earlier filed by Mr. Gill under Section 482 Cr.P.C. came up for hearing before the High Court thereafter and was allowed by its order dated May 29, 1989 and both the F.l.R. and the complaint were quashed.

The ahove t\VO orders of the High Cnurl arc under challenge in these appeals at the instance of Mr. and Mrs. Bajaj. Of the two appeals we "first proceed to consider the merits of the one preferred against quashing of the F.l.R. and the complaint (arising out of SLP (Cr!.) No. 2358 of 1989) for, in case it fails, the other appeal (arising out of SLP (Cr!.) No. L161 of

1989) would, necessarily, be infructuous.

On perusal of the impugned judgment we find that the following reasons weighed with the High Court in quashing the F.I.R.-

(i) the allegations made therein do not disclose any congnizablc offence;

(ii) the nature of harm allegedly caused to Mrs. Bajaj did not entitle

her to co1nplaint about the same in vie\\/ of Section 95 lPC;

(iii) lhe allegations arc unnatural and improhable;

(iv) lhc Investigating Officer did not apply his mind lo the allegations made in the F.I.R., for had he done so, he would have found lhal there . was no. reason to suspecl comn1ission of a cognisable offence, which was the 'sine qua 11011' for starting an investigation under Section 157 Cr. P.C.; and

(v) there was unreasonable and unexplained delay of 11 days m lodging the F.I.R.

As regards the complaint of Mr. Bajaj, the High Court observed that the allegations were almost identical with some improvements made therem.

Mrs. Indira Jaisingh, the learned counsel appearing in support of the appeals strongly criticised the impugned judgn1ent and contended that in exercise of its powers under Section 482 Cr. P.C., the High Court should not have interferred with the statutory powers of the police to investigate into cognizable offences and quashed the F.I.R. specially when the allegations made in the F.I.R. unmistakably constituted offences under the Indian Penal Code and that this unjustifiable interference was in clear violation of the principles laid down by this Court in a number of decisions. She ne>.t contended that the finding of the High Court that the allegations made in the F.I.R. attracted the provisions of Section 95 !PC was patently wrong as in a case \Vherc the mo<lcsly of a \vomcn is involved, the sai<l section cannot have any manner of application. She next contended that the story given out in the F.I.R. was neither improbable nor unreliable as the High Court thought of. As regards the delay in lodging the F.1.R., Mrs. Jaisingh submitted that a satisfactory explanation for the delay had been given in the F.I.R. itself. This apart, she submitted, the delay of 11 days in lodging an F.1.R., could not, by any stretch of imagination, be made a ground for quashing it. She lastly submitted that the High Court was wholly unjustified in taking exception to the police officer's registering the F.I.R. and initiating the investigation for, once it was found lhal lhe F.I.R. disclosed cognizable offence, it was lhe statutory obligation of the police to investigate into the san1c. According to Mrs . .Jaisingh, the High Court committed

R.D. BAJAJ v. K.P.S. GILL IM.K. MUKHERJEE. J.i 245

grave injustice and illegality by quashing the F.1.R. and the complaint.

Mr. Tulsi, the learned Additional Solicitor General, appearing for Mr. Gill on the other hand submitted that the impugned judgment of ihe High Court was a well considered and well reasoned one so far as it held that the F.I.R. did not disclose any cognizable offence, that the allegations made therein being trivial <ittracted the provisions of Section 95 !PC and that the allegations were improbable. He, however, in fairness, conceded that the last two reasons canvassed by the High Court to quash the F.l.R. could not be sustained.

The question under what circumstances and in what categories of C cases the High Court can quash an F.l.R. or a complaint in exercise of its powers under Article 226 of the Constitution of India or under Section 482 Cr. P.C. has been engaging the atlention of this Court for long. Indeed, the learned counsel for the parties invited our attention to some of those decisions. We need not, however, refer to them as in State of Hmyana v.

D Blzajan Lal, IJ.992] Supp. l SCC 335 this Court considered its earlier decisions, including those referred to by the learned counsel, and answered the above question as under :

"Jn the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles E of law enunciated by this Court in a series of decisions relating Lo the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories

of C(.lscs hy \vay of illustration wherein such po\vcr could he F exercised either to prevent abuse of the process of any court or other\vise to secure the ends of justice, though it n1idy not be possible to lay down any precise, clearly defined and sufficienlly channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such po\ver should be exercised.

(l) Where the allegations made in the first information report or the complaint, e\'en if they arc taken at their face value an<l accepted in their entirety Jo not plin1a facie constitute any offence

or .make out a case against the accusetl.

SUPREME COURT HEPORTS [1995] SUPP. 4 S.C.R.

(2) Where the allegations in the first information report and other niatcrials, if any, accnn1panying the FIR <lo not disclose a cognizable oficnce, justifying an investigation by police officers under Section 156(1) of the Cock except under an order of a Magistrate within the purview of Section 155 (2) of the Code.

(3) Where the uncontroverte<l allegations made in the FIR or complaint and the evidence collected in support of the same <lo not disclose the commission of any offence and make out a case against the accused.

( 4) Where, the allegations in the F.l.R. do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155 (2) of the Code.

(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of\vhich no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

( 6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specilic provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

(7) Where a crin1inal pru<.:ei.::<ling is 1nanifestly atten<lcd \Vith n1uta fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and \vith a view to spite hin1 due to private antl personal grudge.

We also give a note of caution to Ute effect that the po1ver of quashing a c1i1ninal proceeding should be exercised ve1y ~JJan"ngly and with circzunspection and that too in the rarest of rare cases; that the COlllt lvill not be justified in en1barking upon an enquily as to the reliability or genuineness or othc1wise of the al/egation.i n1ade in the FIR or the co111plaint and that the cxtraordi11a1y or inherent po1vcrs

do not confer an ar/Jitra1y jiaisdiction on the co1at to act according

R.D. BAJAJ v. K.l'.S. GILL [M.K. MUKHERJEE. J.j 247

to its whinz or cap1ice."

(emphasis supplied)

In the context of the reasons given by the High Court for quashing the F.I.R. and the complaint and the respective stands of the learned counsel for the parties in rebtinn thereto, we have to ascertain whether the case presented before us comes under categories (1), (3) and (5) above.

Besides, it raises the applicability of Section 95 IPC. Since the answers lo the above three questions have to be found out from the F.I.R. itself we need to look into the contents thereof.

It is first stated therein that in the evening of July 18, 1988 Mrs. Bajaj accompanied by her husband had gone to the residence of Shri S.L. Kapur, a colleague of theirs, in response to an invitation for dinner. Reaching there at or about 9. P.M. they found 20/25 couples present including Mr. Gill, who had come without his wife, and some other senior Government officers

. (named in the F.LR.). The party had been arranged in the lawn at the back D of the house and as per tradition in Indian homes, the ladies were sitting 5egregate<l in a large semi-circle anJ the gentlemen in another large semi-circle with the groups facing each other. With the above preface comes Mrs. Bajaj's account of the incident in question, which reads as under:

"Around 10.00 P.M. Dr. P.N. Chutani and Shri K.P.S. Gill walked across lo the circle of the ladies and joined them occupying the only two vacant chairs available, almost on opposite sides of the sen1i-circlc. Shri K.P.S. Gill took a vacant chair about :5 to 6 chairs to the left of where I was sitting. Slowly, all the ladies sitting to the right and left of him, got up, and started leaving and going into the house. I was talking lo Mrs. Bijlani and Mrs. K.P. Bhandari, sitting on my right, and did not notice, or come to know, that those ladies were getting up and vacating their chairs because he had

misbehaved with them.

Shri K.P.S. Giil called out to me where I was sitting and said, ''Mrs.

Bajaj come and sit h_eie, I want to talk to you about something.": I got up from my chair to go and sit next to him. When I was about to sit do_wn, he suddenly pulled the cane chair on which I was going H ·

to sit close to his chair and touching his chair. I felt a little surprised. I put the chair back at its original place and about to sit down again \Vhcn he repcat.c<l his action pulling the chair close to his chair. I realised~ that son1ething \Vas very \vrong and without

sitting down I immediately left and went back and sat in my original place between the other ladies. Mrs. Bijlani, Mrs. KP. Bhandari,

Mrs. Paramjit Singh and Mrs. Shukla Mahajan were occupying

scats on my right and Mrs. Nehra was sitting to the left of me at that time. After about 10 minutes Shri K.P.S. Gill got up from his

seat and came and stood directly in front of me, standing straight but so close that his legs were about four inches from my knees.

He made an action with the crook of his finger asking me to stand and said, "You get up. You come along with me." I strongly objected to his behaviour and told him, "Mr. Gill How dare you!

You are behaving in an obnoxious manner, go a\vay from here''. Whereupon he repeated his words like a command and said, "You get up! Get up immediately and come along with me". I looked to the other ladies, all the ladies looked shocked and speechless. I felt apprehensive and frightened, as he had blocked my way and I could not get up from my chair without my body touching his body.

I then immediately drew my chair back about of foot and half and quickly got up and turned to get out of the circle through the space between mine and Mrs. Bijlani's chair. Whereupon he and slapped me on the posterior. This was done in the full presence of the ladies, and guests."

Mrs. Bajaj has then detailed her in1mediate reaction to the incident followed by the steps she took to apprise the Chief Secretary, the Adviser lo the Governor and the Governor of Punjab of the incident. She concluded her narration with the following words :

"Ordinarily, my complaint to a Police Officer (Shri J.F. Ribeiro) is enough to be considered as an FIR and he had duly apprised the Governor, Punjab, and the Administrator of the Chandigarh, Union Territory, at the earliest occasion. Since I understand that the matter has not yet percolated down from the Governor to lead to the registration a ease. I am formally lodging an F.I.R. with the authorities of the Chandigarh Administration lest there is any

R.D. llAlA.l v. K.l'.S. Glll IM.K. MlJKHElUEE • .T.] 249

prohlc1n about jurisdiction of the Police ()fliccr lalcr.''

Sequentially sun1111arisc<l th8 late1ncnts and allegations as contained in the earlier quoted three paragraph.s of the F.l.R. \Vould read thus :

(i) Around JO P.M. Dr. Chutani and Shri Gill walked across to and sat in the ladies' circle;

(ii) Mrs. Bajaj, who was then talking to Mrs. Bijlani and Mrs.

Bhandari, was requested by Mr. Gill to come and sit near him as he wanted to talk to her about something;

(iii) Responding to his such request when Mrs. Bajaj went to sit in C a chair next to him Mr. Gill suddenly pulled that chair close to his chair;

(iv) Feeling a bit surprised, when she put that chair at its original place and was about to sit down, Mr. Gill again pulled his chair closer;

(v) Realising something was wrong she immediately left the place and D went back to sit with the ladies;

(vi) After about 10 minutes Shri Gill came and stood in front of her so close that his legs were about 41! from her knees;

(vii) He then by an action with the crook of his finger asked her to ngct up imme<liatelyn and come along with him;

(viii) When she strongly objected to his behaviour and asked him to go away from there he repeated his earlier command which shocked the

L1dies prescni there;

(ix) Being apprehensive and frightened she tried to leave the place but could not as he had blocked her way;

(x) Finding no other ,.iternative when she drew her chair back and turned backwards, he slapped her on the posterior in the full presence of G the ladies and guests.

Con1ing now to the moot point as to whether the above allegations constitute l:iny or all of the offences for \vhich the case \Vas registered, we first turn to Sections 354 and 509 !PC, hoth of which relate to modesty of

won1an. These Sections read as under : H

354. \Vhocvcr assaults or uses criminal force to any \\'Oman, intending to outrage or knowing it lo he likely that he will therehy outrage her n1o<lesty~ shall he punished with in1prisonmcnl of either description for a tcrn1 \vhich tnay exten<l to t\VO years, or with fine, or \Vith both''.

1'509. Whoever, intending 10 insult the 1no<lcsly of any \VOman) utters any \Vord, n1akes 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 one year, or \Vith fine, or with both."

Since the word 'modesty' has not been defined in the Indian Penal Code we may profitably look into its dictionary meaning. According to Shorter Oxford English Dictionary (Third Edition) modesty is the quality of being modest and in relation lo \VOn1an means

11womanly propriety of behaviour; scrupulous chastity of thought, speech and conduct". The word 'modest' in rlalion to woman is defined in the above dictionary as "decorous in manner and conduct; not forward or lewd; shamefast1 1 • Webster's Third New International Dictionary of the English language defines modesty as

11freedon1 'from coarseness, indelicacy or indecency; a regard for propriety in dress, speech or conduct". In the Oxford English Dictionary ( 1933 Ed) the meaning of the word 'modesty' is given as ''womanly propriety of behaviour; scrupulous chastity of thought, speech and conduct (in man or woman); reserve or sense of shan1e proceeding fro1n instinctive aversion to in1purc or coarse suggcstions 11 •

In State of Punjab v. Major Singh, AIR (1967) SC 63 a question arose whether a female child of seven and a half months could be said to he possessed of- 'modesty' \Vhich could be outraged. In answering the above question Mudholkar .J., who along with Bachawat .I. spoke for the majority, held that \Vhen any act done to or in the presence of a \Voman is clearly suggestive of sex according to the con1mon notions of mankind that must fall within the mischief of Section 354 !PC. Needless to say, the 'common notions of mankind' referred to by the learned Judge have to be gauged by contemporary societal standards. The other learned Judge (Bachawat J.) observed that the essence of a \Von1an's modesty is her sex and fron1 her

f,.

R.D. BAJAJ v. K.P.S. GILL [M.K. MUKHERJEE • .I.] 25.1

very birth she possesses the n1odcsty \vhich is the attrihute of her sex. From the aboYc Jictionary 1neaning of 'n1odesty: and the interpretation given to that \vord by this Court in Major Singh's case (:-; upra) it appears Lo us that the ulti1natc test for ascertaining \vhcthcr n1odcsty has heen outraged is the action of the offender such as could be perceived as one \vhich is capable of shocking the sense of decency of a \VOtnan. \\1hen the ahnve test is

applied in the present case, keeping in view the total fact situation, it cannot but be held that the alleged act of Mr. Gill in slapping Mrs. Bajaj on her posterior amounted to 'outraging of her modesty' for it was not only an affront to the normal sense of feminine decency but also an affront to the dignity of the lady - "sexual overtones'' or not, notwithstanding.

It was however strenuously urged by Mr. Tulsi, that even if it was assumed that Mr. Gill had outraged the modesty of Mrs. Bajaj still no offence under Section 354 !PC could be said to have been committed by him for the other ingredient of the offence, namely, that he intended to do

so was totally lacking. He urged that the culpable intention of the offender D in committing the act is the crux of the matter and not the consequences thereof. To buttress his contention he invited our attention to the following passage from the judgn1cnt of this Court in Hitendra Vishnu Thakur v. State of Maharashtra, (1994] 4 SCC 602 : (one of us, namely Anand, J. was a party)

'Thus the true ambit and scope of Section 3 (1) is that no convic- E

tion under Section 3 (1) of TADA can be recorded unless the evidence led by the prosecution establishes that the offence was committed with the intention as envisaged by Section 3 ( 1) by n1cans of the \VCapons etc. as enun1cratcd in the section and ''"'as F committed with the motive as postulated by the said section. Even at the cost of repetition, we may say that where it is only the consequence ?f the criminal act of an accused that terror) fear or panic is caused, but the crime was not committed \Vith the intention as envisaged by Section 3(1) to achieve the objective as envisaged by the section, an accused should not be convicted for an offence G under Section 3(1) of TADA. To bring home a charge under Section 3 (1) of the Act, the terror or panic etc. must be actually intended \Vith a vie\v to achieve tht: result as envisaged by the said section and not be merely an incidental fall out or a consequence of the cri1ninal activity. Every crime) being a revolt against the H

society, invnlvcs some violent activity which results in son1e degree

of panic or creatt.:s ~0111c fear or terror in the peoplt: or a section thereof, hut unless the panic, fear or terror \Vas intcnde<l and \Vas sought to achieve either of the objectives as envisaged in Section 3(1), the offence would not fall stricto scnsu under TADA."

It is undoubtedly correct that if intention or knowledge is one of the ingredients of any offence, it has got to be proved like other ingredients for convicting a person. But, it is also equally true that those ingredients being states of mind may not he proved by direct evidence and may. have to be inferred from the attending circumstances of a given case. Since, C ho\vever, in the instant case we arc only at the incipient stage \Ve have to ascertain, only p; ima facie, whether Mr. Gill by slapping Mrs. Bajaj on her posterior, in the background detailed by her in the FIR, intended to outrage or knew it to be likely that he would thereby outrage her modesty, which is one of the essential ingredients of Section 354 IPC. The sequence D of events which we have detailed earlier indicates that the slapping was the finale to the earlier overtures of Mr. Gill, which considered together, persuade us to hold that he had the requisite culpable intention. Even if we had presumed he had no such intention he must be attributed with such knowledge, as the alleged act was committed by him in the presence of a gathering comprising the elite of the society - as the names and designa- E lions of the people given in the FIR indicate. While on this point we may also n1ention that there is nothing in the FIR to indicate, even remotely, that the indecent act was committed by Mr. Gill, accidentally or by mistake or it \Vas a slip. For the reasons aforesaid, it must also be said that, - apart from the offence under Section 354 !PC - an offence under Section 509

F I Pt~ has been nu1de out on the 1iilegations contained in thi: FIR as the words used and gestures made by Mr. Gill were intended to insult the modesty of Mrs. Bajaj.

That brings us to the other offences1 namely, under Sections 352, 341., 342 IPC. We need not however take notice of the offence under Section G 352 IPC for the offence under Section 354 !PC includes the ingredients of the former. In other words, Section 352 !PC constitutes a minor offence in relation to the other. Regarding the offence of wrong confinement punishable under Section 342 !PC there is not any iota of material in the FIR; and so far as the offence under Section 341 !PC is concerned, the only H allegation relating to the same is that Mr. Gill stood in front of Mrs. Bajaj

R.D. BAJAJ v. K.P.S. GILL [M.K. MUKJ-JERJEE, J.J 253

in such a manner that she had lo move backward. From such act alone it

A ·

Ci:innot he sai<l that he 'wrongfully restrained' her \Vithin the meaning of Section 339 IPC to make him liable under section 34 l JPC.

Now that we have found lhal the allegations made in the FIR, p1ima jacie, disclose offences under Section 354 and 509 IPC. we may advert lo the applicability of Section 95 IPC thereto. The Section reads as follows :

11Nothing is an offence by reason that it causes, or that it is intended lo cause, or that it is known lo be likely to cause, any harm, if that harm is so slight that no person of ordinary sense and temper would complain of such harm".

In dealing with the above Section in Veeda Menezes v. Yusuf Khan, AIR (1966) SC 1773 a three Judge Bench of this Court observed that the object of framing the Section was to exclude from the operation of the Indian Penal Code those cases which from the imperfection of language D may fall within the letter of the law but are not within its spirit and are considered, and for the most part dealt with by the courts, as innocent. In other words, the Section is intended to prevent penalisation of negligible wrongs or of offences of trivial character. In interpreting the expression 'harm' appearing in the Section this Court said that it is wide enough E to include physical injury as also injurious mental reaction. As regards the applicability of the Section in a given case, this Court observed as follows:-

"Whether an act 1vhiclz a1nounts to an offence is t1il'ial "'Ollld • undoubtedly depend upon Lile 11ature of the injiuy, Lile position of F the ]Ja1ties, the knowledge or i11te11tio11 vith which the offending act is done, and other related circunistances. There can be no absolute standard or degree of harm which may be regarded as so slight that a person of ordinary sense ant temper would not complain of the harm. It cannot be judged solely by the measure of physical G or other injury the act causes 1 '.

(emphasis supplied)

Viewed in the light of the above principles we are of the opinion that Section 95 IPC has no manner of application to the allegations made in the H

F.l.R. On perusal of the FIR we have found that Mr. Gill, the top most official of the State Police, indecently behaved with Mrs. Baj<~ a Senior lady IAS Oflicer, in the presence of a gentry and inspitc of her raising objections continued with his such behaviour. If we are to hold, on the face of such allegations that, the ignominy and trauma to which she was subjected lo was so slight that Mrs. Bajaj, as a person of ordinary sense and temper, would not complain about the same, sagacity will be the first casualty. In that view of the matter we need not delve into the contention of Mrs . .Jai Singh, - much less decide - that Section 95 !PC cannot _have any manner of application to an offence relating to modesty of woman as under no circumstances can it be trivial.

In recording its third reason for quashing the FIR the High Court observed as under :

"In the present case there were 48 more persons present; 24 ladies and equal number of gentlemen. It sounds both unnatural and unconscionable that the petitioner (Mr. Gill) would attempt or dare to outrage the modesty of the author of the First Information Report in their very presence inside the residential house of Financial Commissioner (Home)."

We are constrained to say that in making the above observations the High Court has flagrantly disregarded - unwittingly we presume - the settled principle of law that at the stage of quashing an FIR or complaint the High Court is not justified in embarking upon an enquiry as lo the probability, reliability or genuineness of the allegations made therein. Of course as has been pointed out in Bhajan Lat's case (supra) an F.I.R. or a con1plaint n1ay be quashed if the allegations n1ade therein are so absurd and inherently improbable that no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused but the High Court has not recorded such a finding, obviously because on the allegations in ihc FIR it was not possible to do so. For the reasons aforesaid we must hold that the High Court has committed a gross error of law in quashing the FIR and the complaint. Accordingly, we set aside the impugned judgment and dismiss the petition tiled by Mr. Gill in the High Court under Section 482 Cr.P.C.

The consequential direction that is to ordinarily follow from the above order is mandates lo the police to investigate into the FIR and to

R.D. BAJAJ v. K.P.S. GILL [M.K. MUKHERJEE, J.] 255

the learned Magistrate, \Vho \Vas in seisin of the coin plaint case, to proceed with it in accordance with Section 2]() Cr.P.C., but then we find from the records placed before us by Mr. Sanghi, the learned counsel appearing for the Chandigarh Administration, that before the High Court was moved by Mr. Gill through his petition under Section 482 Cr. P.C. and the interim order slaying investigation of the case registered on the F.I.R. was passed thereon, the police had completed the investigation and sent the papers relating thereto to the Legal Remembrancer-cum-Director of Prosecution ('LR' for short) for his opinion. After his opinion was received the investigating officer prepared the 'police (final) report' on November 22, 1988 and forwarded it, through the Senior Superintendent of Police, Chandigarh Administration (S.S.P.) on November 28, 1988 to the 'Ilaka' Magistrate slating that the evidence on record did not substantiate the accusations of the complainant (Mrs. Bajaj). The learned Magistrate, in his turn, accepted the report on December 9, 1989 and ordered that the case be filed with accused as 'untraced'. In the context of the fact that the High Court had, in the meantime quashed the F.I.R. the above order was wholly unnecessary and redundant but, now that we have revived the F.I.R. and the complaint it also revives. That necessarily means, that if we allow the above order to stand one course left open to us is, in view of our earlier findings, to direct the Magistrate to proceed with the complaint in accordance with the provisions of Section 210(3) Cr. P .C., but having regard to the police report and the manner in which it was dealt with and ultimately accepted, we consider it necessary to set aside the order treating the police case as

11untraced 11 •

From the records we find that while forwarding the police papers to

the 'Baka' Magistrate on November 28, 1988, the S.S.P. recommended that F the case might be filed 'as untraced' as requested by the local police in the final report. The papers, however, do not appear to have been dealt with till July 17, 1989 when the Chief Judicial Magistrate entertained an application filed by Mrs. Bajaj in connection therewith wherein she staled that is Criminal Miscellaneous Petition No. 9041-M of 1988 (registered on the G petition filed by Mr. Gill under Section 482 Cr. P.C.) the State had filed an affidavit averring that the police had submitted its report under Section 173 Cr. P .C. and prayed for a direction upon the prosecution to intimate the date of the filing of the report and give her an opportunity to inspect the same. Interestingly and surprisingly enough, the Chief Judicial Magistrate was none other than the L.R. who had earlier given the opinion H

A . that the accusations of the complainant (Mrs. Bajaj) ere ot substantiated from the evidence collected during investigation. Indeed, it is under the influence of the above opinion that the police report was submitted as would be. e\ident from the report itself wherein the Investigating Officer has stated [all the statements of \vitnesses were sent to the L.R. who, vide B _letter No. LD-88n163 dated 21.11.88, found that evidence on record do not substantiate the accusations of the complainant" (as translated into

Eglish). It is difficlt-to believe that the learned Chief Judicial Magistrate was not aware of the fact that he had himself opined that no case for going to the trial was made out against Mr. Gill and therefore, it was expected that in the interest of justice and fair play he would have declined to deal .

C \vith the case in his capacity as. the Chief Judicial Magistrate. Instead of so : doing, he passed an order on that application on July 19, 1989 directing issuance of notice. This was followed by another order dated July 22, 1989 whereby he directed that the application be listed on August 8, 1989 awaiting report. On the date so fixed he passed his next order which D indicates that the report was rea; ived on that day and placed on 'record.

It is not understood, which report the learned Magistrate was referring to for if it is to be read in the context of the prayer made by Mrs. Bajaj in her application dated July 17, 1989 it would necessarily mean the 'police . report' but as already noticed, the affidavit filed by the State in the High Court and the prayer of the Senior Superintendent of the Police dated E November 28, 1988 clearly indicate that it had been sent to the Court much earlier. It can, therefore, be legitimately inferred that the formal order regarding the receipt of the police report was belatedly m.ade on August 8, 1989. Be that as it may, it appears that even thereafter the same learned Chief Judicial Magistrate continued to deal \vith the matter till September F 16, 1989 when he made the follmving order :

'The matter concerning State v. KP.S. Gill was being dealt \vith by me when 1 was Legal Remembrancer, Chandigarh Administration, Chandigarh. Accordingly, the papers produced by the prosecution. along\vith all other relevant papers pending in this court are entrusted to the Court of Sh. A.K. Suri, JMIC, Chandigarh, for further proceedings in accordance \vith law.

Sh. A.S. Chahal, advocate, who is appearing on behalf of M.rs.

Rupan Deol Bajaj, complainant has been directed to appear before that court on 18:9.1989 for further proceeding.~! Papers be sent to

R.D. BAJAJ v. K.P.S. GILL IM.K. MUKHERJEE, J.J 257

that court immediately".

It passes our comprehension as to how an Officer (L.R.) who had given the opinion to submit a police report in favour of Mr. Gill could entertain the request of the police for accepting lhe same while acting in his judicial capacity. More surprising and disquieting is lhe fact that he continued to deal with lhe matter till he realised that it would not be appropriate on his part to go any further. We need not, however, dilate on this aspect of the matter any further for in any case the order of the transferee Magistrate on the police report cannot be sustained inasmuch as he has not given any reason whatsoever for its acceptance though, it appears, the parties were heard on that question for days together, obviously to comply with the law laid down by this Court in Bhagwant Si11gh v.

Commissioner of Police AIR (1985) SC 1285.

In Abhi11a11da11 Jha v. Dinesh Mishra, AIR (1968) SC 117 the question arose whether a Magistrate to whom a report under Section 173(1) Cr. P.C. D had been submitted to the effect that no case had been made out against the acc'used, could direct the police to file a charge-sheet on his disagreeing with that report. In answering the question this Court first observed that the use of the words 'may take cognizance of any offence' in sub-section

(1) of Section 190 Cr. P.C. imports the exercise of )'udicial discretion' and E the Magistrate who receives the report under Section 173 Cr. P.C. will have to co11sider the said report a11d judicially take a decision whether or not to take cognizance of the offence. The Court then held, in answering the question posed before it, that the Magistrate had no jurisdiction to direct the police to submit a charge-sheet but it was open to the Magistrate to agree or disagree with the police report. If he agreed with the report that there was no case made out for issuing process to the accused he might accept the report and close the proceedings. If he came to the conclusion

that further investigation was necessary he might make an order to that effect under Section 156(3). It was further held that if ultimately the Magistrate was of the opinion that the facts set out in the police report G constituted an offence he could take cognizance thereof, notwithstanding contrary opinion of the police expressed in the report.

Since at the time of taking cognizance the Court has to exercise its judicial discretion it necessarily follows that if in a given case - as the H

present one the complainant, as the pCrson ag!:, rrieved raises objections to the acceptance of a police report which recommends discharge of the accused and seeks to satisfy the Court that a case for taking cognizance was mac..le out, but the Court. overrules such objections, it is just anc..I desirable that th~ reasons therefor be recorded. Necessity to .give reasons B which disclose proper appreciation of the issues before the Court needs no

_empha..'\is. Reasons intfoduce clarity and niinimisc chances of arbitrariness .

. That necessarily means' that recording of reasons will not be necessary when the Court accepts such police report without any demur from the complainant. As the order of the learned Magistrate in the instant case c

does not contain any reason whatsoever, f'.Ven though it was passed after hearing the objections of the complainant it has got to be set aside and we do hereby set it aside. Consequent thereupon, two courses are left open to us; to direct the learned Magistrate to hear the parties afresh on the question of acceptance of the police report and pass a reasoned order or to decide for ourselves whether it is a fit case for taking cognizance under Section 190 (1) (b) Cr. P.C. Keeping in view the fact that the case is pending for the last seven years only on the threshold question we do not . wish to take the former course as \hat would only delay the matter.further.

Instead thereof we have carefully looked into the police report and its accompaniments keeping in view the following observations of this Court E in H.S. Bai11s v. State, AIR (1980) SC 1883, with which we respectfully

agree:

'The Magistrate is not bound by the conclusions arrived at by the police even as he is not bound by the conclusions arrived at by the complainant in a complaint. If a complainant states the relevant facts in his complaint and alleges that the accused is guilty of an offence under Section 307 Indian Penal Code the Magistrate is not bound by the conclusion of the complainant. He may think that the facts disclosed an offence under S. 324, l.P.C. only and he may take cognizance of an offence under Section 324 instead of Section

307. Similarly if a police rep01t memio11s that half a doze11 persons cxaniined by theni c/aini lo be eye wilnesJes to a niurder but that for rarioics reasons the witnesses could not be believed, the Magistrate is 11ot bound to accept the opinio11 of the police regarding the . credibility of the witnesses. He may prefer to igiiore the conclusions of the police regardi11g the credibility of the witnesses u11d take cow1izance of the offence. If lie does so, it would be 011 the basis of

~ ,;..;

R.D. BAJAJ v. K.P.S. GILL [M.K. MUKHERJEE. J.J .259

the statcn1e11ts of the lvitnc.rses as revealed by the police repo11s." A

(emphasis supplied)

()ur !-iUCh exercise persuades us to hold that the opinion of the lnvestin.g ()fficer that the allegations contained in the F.1.R. were not substantiated by the statements of witnesses recorded <luring investigation B is not a proper one for we find that there are suflicient materials for taking cognizance of the offences under Sections 354 and 509 I.P.C. We, however, refrain fro1n detailing or discussing those statements and the nature and extent of their corroboration of the F.I.R. lest they create any unconscious impression upon the Trial Court, which has to ultimately decide upon their C truthfulness, falsity or reliability, after those statements arc translated into evidence during trial. For the self san1e reasons we do not wish to refer to the arguments canvassed by Mr. Sanghi, in support of the opinion expressed in the police (final) report and our reasons in disagreement thereto.

On the conclusions as above we direct the learned Chief .Judicial Magistrate, Chandigarh to take cognizance upon the police report in respect of the offences under Sections 354 and 509 IPC and try the case himself in accordance with law. We make it abundantly clear that the learned Magistrate shall not in any way be influenced by any of the observations made by us relating to the facts of the case as our task \Vas confined to the question whether a 'prinza facic case' to go to the trial was made or not \Vhercas the learned Magistrate \vill have to dispose of the case solely on the basis of the evidence to be adduced during the trial.

Since hoth the offences under Sections 354 and 509 IPC are triable in accordance \Vith Chapter XX of th-: Cri111inal Procedure Code we direct the learned Magistrate to dispose of the case, as expeditiously as possible, preferably \Vithin a period of six months from the date of communication of this order. In view of our ilbove direction and the provisions of Section

210 (2) Cr.P.C. the complaint case instituted hy Mr. Bajaj for the self same offences loses its independent existence thereby rendering the other appeal G which arose out of that case, redundant, though \Ve are of the opinion,

JHima jacie, that the claim of privilege, on the hasis of the affidavit of the Chief Secretary, \Vas not sustainable.

In the result the appeal No. 1183/95 arising out of SLP (Crl.) No.

235R of 1989 Gkd by Mr. and Mrs. Bajaj i> allowed and the other appeal H

A No. 1184/95 arising out of SLP (Crl.) No. 1361 of 1989 is dismissed as infructuous.

Before we part with this judgment we wish to mention that in the course of his arguments, Mr. Sanghi, suggested that the matter may be given a quietus if Mr. Gill was to express regret for his alleged mis- B behaviour. That is a matter for the parties to consider for the offences in question are compoundable with the permission of the Court.

R.P.

Appeals disposed of.