This article is written by Hariharan Y, studying in Christ (Deemed to be University), Bangalore. This article deals with the punishment aspect of Section 354 of the Indian Penal Code, 1860. The aspects dealt with in this article are an overview of Section 354, punishment provisions, state amendments, and the relevant case laws concerning the same. This section primarily deals with outraging the modesty of a woman. Crime being a subject in the concurrent list has led to States making amendments to the Section with respect to the number of years of punishment, the type of offence etc.
It has been published by Rachit Garg.
Table of Contents
Introduction
Crimes against women are a social evil in our society. Every day we hear some news about a crime against a woman. Such a crime can be rape, assault, grievous hurt, acid attacks, outraging her modesty by using criminal force, etc. Hence, the Indian Penal Code of 1860 provides provisions for special offences against women and Section 354 is one such provision.
Section 354 of the IPC, deals with outraging the modesty of a woman. The word ‘modesty’ is not defined under the IPC. It is defined by the Merriam-Webster Dictionary as propriety in dress, conduct, or speech. It can also be seen as womanly propriety of behaviour and scrupulous chastity in thought, speech, and expression. Thus, modesty can be attributed to a woman and her propriety in her behaviour. The offence relates to outraging the modesty of a woman. The Supreme Court has in Vishaka v. State of Rajasthan (1997) held that an offence relating to the modesty of a woman cannot be considered trivial. In Raja Pandurang v. State of Maharashtra (2004), the Court held that the modesty of a woman is essentially her sex and the virtue that can be attributed to a woman due to her sex. Therefore, Section 354 deals with the usage of criminal force assault in order to outrage the modesty of a woman. The legislative intent to enact this section is for the protection of women. There is no provision for outraging the modesty of a man under this section. The courts have, however, had to strike a fine balance to convict a person under this Section. Recently, in K. Rattiah @Ratnaji v. The State of Andhra Pradesh (2022), the Telangana High Court held that if the woman whose hand is held does not perceive it to mean an invasion of her privacy, this Section will not be attracted.
Section 354 punishes one who assaults or uses criminal force on a woman with the intention to outrage her modesty. This article would concentrate on the punishment aspect of Section 354 and the need to enhance such punishment for it to be in sync with the current realities of society.
What does Section 354 IPC say
Section 354 states that whoever assaults or makes the use of criminal force on any woman with the intention to outrage her modesty or knowing it to be likely outraging her modesty shall be liable for punishment under this section. The punishment is imprisonment of either description, which shall be a minimum of one year and may extend up to five years. Additionally, the fine shall also be levied. Hence, the punishment can be simple or rigorous imprisonment, depending on the discretion of the judge. Additionally, a fine shall be levied along with such imprisonment, which means that the offence is non-compoundable.
Essential ingredients of Section 354
The person assaulted must be a woman
The person against whom criminal force has been used has to be a woman. However, a woman who outrages the modesty of another woman shall also be punishable under this section.
Illustration: ‘A’, a man, assaulted and outraged the modesty of ‘B’, a woman. Here, A shall be punished under this section if he satisfies other ingredients.
Illustration: ‘A’, a woman, assaulted and outraged the modesty of ‘B’, a man. Here, A shall not be liable to be punished under this section since B is a man. However, A may be tried under other relevant sections of the IPC.
Illustration: ‘A’, a woman, assaulted and outraged the modesty of ‘B’, a woman. Here, A shall be punished under this Section if she satisfies other ingredients.
The accused must have made use of criminal force on her
The use of criminal force is a must under this Section. Criminal force is defined under Section 350 as intentionally using force against another person without such other person’s consent that leads to the commission of any offence or knowing that an injury, annoyance, or fear would be caused to the other person.
Criminal force must have been used to outrage her modesty
The test for outraging modesty was established in the case of State of Punjab v. Major Singh (1996). Intention and knowledge are the two main elements of this section. Though they are difficult to prove in a court of law, they can be derived from the facts of the case. The test, therefore, is whether the person using criminal force on a woman has the intention and knowledge that it will result in outraging the modesty of such a woman.
Hence, to constitute an offence under Section 354, an intention to outrage her modesty must be present. It is not enough that criminal force has been used against her. It must be proved beyond a reasonable doubt that the person had the intention to outrage the modesty of the woman.
In Ram Das v. State of W.B. (1954), two people engaged in a heated argument, due to which a man gave a push to a woman. The fight started since he was alleged to have looked at her ‘with lustful eyes. However, no evidence of the gesture was submitted. The Court acquitted him since there was no cogent evidence of his intention to outrage the modesty of the woman.
In SP Malik v. State of Orissa (1981), it was held that merely touching the belly of a female in a public bus without proving culpable intention of outraging the modesty will not qualify as an offence under this section.
Punishment for Section 354 IPC
There has been a lot of debate and criticism about the punishment prescribed under this Section. Earlier, the maximum punishment was two years imprisonment and a fine. Later, the Criminal Law (Amendment) Act of 2013 increased the punishment to five years of imprisonment, subject to a minimum of one year. A fine shall also be levied. However, there are certain differences in the punishment accorded under state laws where the states have modified the punishment or enhanced the level of punishment.
Criminal Law (Amendment) Act, 2013
The criminal laws in the country were amended in the wake of the Nirbhaya case, which shook the entire country. The government constituted the Justice J.S. Verma Committee in order to revisit the laws and make the relevant amendments. Under this Act, the punishment was enhanced to a minimum term of one year which may extend up to five years and also liable for a fine. Such enhancements were made after a heinous gang rape incident. However, the country must not wait for another incident of this nature to happen to further enhance the punishment. Though the Section was amended, we still see that there are a significant number of rape cases in the country. Unless and until the legislature makes the punishment more stringent, the cases will only surmount. The National Bureau of Statistics establishes that cruelty by the woman’s husband and relatives constituted around three per cent of crimes against women
Recommendations of the Committee
Punishment for rape
The committee recommended that the punishment for rape be life imprisonment or rigorous imprisonment for at least seven years. But, causing the death of the woman or resulting in a permanent vegetative state would attract a minimum of twenty years of imprisonment. The same shall also apply to gang rape.
Recognised punishment for other sexual offences
The Committee has prescribed punishments for other sexual offences. For voyeurism (up to seven years of imprisonment), stalking or repeated contact with a person (up to three years), acid attacks (up to seven years), and trafficking (seven to ten years)sentences were prescribed.
Mandatory registration of marriage
One important recommendation is that all marriages in India have to be registered in the presence of a competent magistrate. This is to ensure a dowry free-marriage.
Other recommendations
- A separate bill of rights for women to ensure better protection, sexual autonomy etc.
- Review of the Armed Forces Special Protection Act for the inclusion of women in the armed forces.
- Consideration of non-penetrative forms of sexual contact as sexual assault.
Amendments by the state governments
The Indian Penal Code, 1860, was drafted pre-independence keeping in mind the prevailing situations at that time. Hence, the legislators at that point in time felt that awarding two years of imprisonment would be appropriate. However, times have changed rapidly. The crime statistics, as mentioned above, only show an upward trend. There is a need to revisit criminal laws in order to ensure that they are in sync with the current situation of society.
Andhra Pradesh
Andhra Pradesh was the only state to amend and enhance the punishment under this Section. Through the Indian Penal Code (Andhra Pradesh) Amendment Act, 1991 (Act No. 6 of 1991), the punishment was enhanced from two years to a minimum of five years, which may extend up to seven years and is also liable to fine.
Madhya Pradesh
Madhya Pradesh, through The Madhya Pradesh Govansh Vadh Pratishedh Adhiniyam, 2004 (Act No. 14 of 2004) amended Section 354 and inserted a new section, namely Section 354A, under which the punishment prescribed is imprisonment of not less than one year, which may extend up to ten years with a fine.
Orissa
Under the First Schedule of the Code of Criminal Procedure, 1973, the word ‘bailable’ was replaced with ‘non-bailable’ which means that the offence is ‘non-bailable’ in the state of Orissa.
Chhattisgarh
The state of Chhattisgarh added a proviso to the Section stating that in case such outraging of modesty is done by a teacher, guardian, relative, or a person who is in a position of trust, then the punishment shall be a minimum of two years, which may extend up to seven years with a fine.
Other states in India must also take steps in amending the provision to enhance the punishment currently prescribed. This would enable to deter crimes against women to a great extent.
Type of Punishment under Section 354
The punishment under Section 354 says it shall be imprisonment of either description, not less than one year and up to five years, and shall be liable for a fine. Here, imprisonment of either description means that the imprisonment can either be simple imprisonment or rigorous imprisonment.
The Indian Penal Code provides for two kinds of imprisonment, namely, simple imprisonment and rigorous imprisonment. Simple imprisonment, as the name suggests, means the prisoner will not be given hard labour and other rigorous tasks. The treatment given to him by the police officers will not be very harsh in nature. Rigorous imprisonment on the other hand is the allocation of physical tasks and other kinds of labour on a daily basis to the prisoner. Such imprisonments are generally given for serious offences, whereas simple imprisonment is given for casual and petty offences.
It is important to note here that under Section 354, the judge has the discretion to award any kind of imprisonment since it says ‘imprisonment of either description’.
Further, the punishment under this section says the person shall be imprisoned and also be liable to pay a fine. The use of the word ‘and’ here means that along with imprisonment, the person shall also be liable to pay a fine. Hence, it is a non-compoundable offence. This means that imprisonment is mandatory, and the convict cannot get away by just paying a fine.
The amount of the fine is also not mentioned under this section, which gives discretion to the judge to impose any fine that he deems fit under this section.
Procedure under the Code of Criminal Procedure, 1973
An offence under Section 354 of the IPC shall be a cognizable and a non-bailable offence that is triable by a magistrate of any class.
Cognizable
A cognizable offence is one where a police officer, under the First Schedule of the Code of Criminal Procedure, 1973, or any other legislation in effect, an arrest without a warrant and can start an investigation without the permission of the magistrate. Usually, offences, where the punishment is more than three years, are considered as cognizable offences. An FIR needs to be registered for a cognizable offence.
Non-Bailable
A non-bailable offence is one where bail cannot be demanded as a right. The court has the discretion to grant bail if it is satisfied.
Triable by any Court
The offence of outraging the modesty of a woman can be tried by any court of law within the territory of India as per the Code of Criminal Procedure, 1973.
Model charge under Section 354
The Model charge that is framed against the accused will be as follows
I _______ (name of the Presiding officer) do hereby charge you ______ (name of the accused in the case) as follows
That you are on or about the _______ day of ______ at _______ (place) within P.S _____ District. ______ assaulted (or used criminal force) to ______ (name of victim) intending to outrage (or knowing it to be likely that he will outrage) the modesty of the said ______ (victim), and thereby committed an offence punishable under Section 354 of the Indian Penal Code, 1860 and within the cognizance of this Court.
And I do hereby direct that you be tried by this Court on the said charge.
Burden of proof
Like every criminal offence under the IPC, mens rea is essential under this Section. The accused must have the intention to outrage or the knowledge that his act will outrage the modesty of the woman. The burden of proof rests on the public prosecutor to prove that the accused had the intention to outrage modesty.
Illustration: ‘A’ had while climbing the stairs, pushed another woman, and she fell down. She filed a case, stating it outraged her modesty. Here, the burden of proof lies with the prosecution to prove that he had the guilty intent to use criminal force or assault to outrage her modesty.
Difference in punishment under Section 350 and punishment under Section 354
Section 350 deals with criminal force. It states that whoever has intentionally used any force on a person without consent for the commission of an offence or the intention and knowledge that such force will cause commission of an offence is said to use criminal force against the other. The punishment for Section 350 is given under Section 352.
Section 352 states that whoever has assaulted or used criminal force otherwise than by grave and sudden provocation shall be punishable with imprisonment of either description which shall extend up to three months along with a fine up to five hundred rupees or both.
The difference of punishment under Section 350 and Section 354
| Particulars | Section 350 | Section 354 |
| Term of Imprisonment | Up to three months of either description | Not less than one year but shall extend up to five years |
| Amount of fine | Up to five hundred rupees | Liable to fine |
| Nature of Offence | Compoundable | Non-Compoundable |
Interplay between Section 354 and Section 376
Section 354 deals with outraging the modesty of a woman, while Section 376 deals with punishment for rape. The Courts have in various cases dealing with the interplay between Section 354 and Section 376. The line of difference between both is not a big one. The courts have, based on the different circumstances of the case, decided whether it is an offence of outraging modesty or rape; or both.
The major difference between Sections 354 and 376 is the gravity of the offence and the amount of punishment. While the maximum punishment that can be given under Section 354 is five years, under Section 376, the punishment is a minimum of ten years, may extend up to life imprisonment, and shall also be liable for a fine. We can infer from this that the gravity of the offence under Section 376 is more serious and heinous than that under Section 354.
In Ram Asrey v. State of UP (2017), the accused was brought before the court because he was trying to molest a female who then hit him and fled away. It was held that there was no intention to have sexual intercourse with her, and hence he was convicted under Section 354 instead of Section 376.
Need for enhancement of punishment
Judicial opinion in favour of stringent punishment
State of Madhya Pradesh v. Bablu (2004)
The High Court of Madhya Pradesh in the instant case reduced the sentence of the accused since he was a first offender. The Supreme Court, however, held that such a reduction would encourage the accused to repeat the crime which would be detrimental to the morals of society.
Ippili Trinadha Rao v State of A.P (1983)
The Court held in this case that probation of an offender who is accused of an offence under Section 354 can be made only in exceptional circumstances. The benefits of the Probation of Offenders Act were not extended to the accused and corporal punishment was instead awarded to him. The same principles were applied in the case of Harish Chandra v. State of Maharashtra (1996), where the benefit of probation was not extended to the accused.
Increase in the number of crimes against women
With the rise of crimes against women in India, the current punishment under Section 354 is grossly inadequate. There are various international conventions for the protection of women. Further, the courts have consistently called for enhanced protection of women. The statistics are scary. As per a BBC Report, over six million crimes have been recorded against women in 2021. There has been an increase of 100 per cent increase in molestation cases against women since 1991 and it has been showing an upward trend every year except for a few years where it showed a downward trend. These offences include rape, kidnapping, murder, extortion, hate crimes, and acid attacks to name a few. Hence, to ensure that the criminals are given appropriate punishment, it is critical that stricter and harsh punishment needs to be in place in order to deter crimes.
Landmark case laws
Rupan Deol Bajaj v. Kanwar Pal Singh Gill (1995)
Facts of the case
This case is famously called the ‘butt-slapping’ case and was one of the most controversial cases. The brief factual matrix of the case was that Mrs. Rupal Deo Bajaj is an Indian Administrative Service (IAS) officer belonging to the Punjab cadre. When the case was filed, she was working in the position of Special Secretary (Finance). The accused is to have allegedly slapped her on her butt during an interaction.She filed a complaint alleging offences under Sections 341, 342, 352, 354 and 509 of the IPC by the Director General of Police (Punjab) during a dinner party. An FIR was registered with the Chandigarh Police Station.
Mr. Bajaj, also an IAS officer, registered another complaint with the Chief Judicial Magistrate, alleging a lack of investigation and no arrest being made. The case was then transferred back to the judicial magistrate to complete the pending investigation. Mr Gill filed a petition under Section 482 of CrPC for quashing the FIR. The High Court of Punjab and Haryana quashed the FIR because the grounds alleged in it did not constitute an FIR, the accusations were unusual, and there was an unreasonable delay in filing the FIR. Aggrieved by this, Mrs. Bajaj petitions the Supreme Court.
Issues
The major issues in this case were whether the accusations mentioned in the FIR constituted offences under the IPC and whether the High Court was justified in quashing the FIR.
Judgement
The Court, relying on the decision given in State of Punjab v. Major Singh (1966), held that the act of slapping a woman on the posterior qualified as outraging her modesty under Section 354. Mr. Gill had the ‘culpable intention’ of slapping her buttocks, which is one of the ingredients under this section. However, in this case, Mr. Gill was acquitted since the offences under Sections 341, 342, and 352 were not made out against him. However, the Supreme Court held that the High Court was not justified in interfering in the case and directed the Chief Judicial Magistrate to continue the investigation concerning offences given under Sections 354 and 509.
Post judgement
The Chief Judicial Magistrate conducted the trial, and the accused was held guilty. Mr Gill was sentenced to three months imprisonment and a fine of Rupees five hundred under Section 354 and two months imprisonment and a fine of Rupees two hundred under Section 409. Appealing against such a conviction, the Sessions Court affirmed the conviction but directed the accused to be released on probation but the fine amount was increased to Rupees fifty thousand.
Aggrieved by the decision of the Sessions Court, Mr. Gill appealed in the Punjab and Haryana High Court increasing the fine amount to rupees two lakh and twenty-five thousand as litigation costs. The matter finally reached the Supreme Court, where the appeal was dismissed for being devoid of merit.
State of Punjab v. Major Singh (1966)
Facts of the case
The case dealt with whether causing an injury to an infant would qualify as an offence under Section 354. The brief factual matrix of the case is that the baby was sleeping in the room when Major Singh entered the room, turned the lights off, committed an obscene act, and caused injury to the private parts of the baby. He is said to have escaped when his mother entered the room and switched on the light.
Issues
The major issue that was dealt with in this case was whether the accused is liable for an offence under Section 354.
Judgement
The Court held that a woman, regardless of her age, has modesty, which can be an outrage. Such modesty is available to her from birth. Consideration of a woman’s reaction to the offence is secondary. The ingredients necessary to satisfy an offence under this section are the usage of criminal force with intention and knowledge, both of which have been satisfied in this case. The accused was punished with an imprisonment of two years with a fine of Rupees one thousand, the default of which will be met with six months of rigorous imprisonment.
Girdhar Gopal v. State (1952)
Facts
The petitioner, Giridhar Gopal was convicted of offences under Sections 342 and 354 of IPC. He was awarded six months and one year of rigorous imprisonment for the offences which were to run concurrently. The Sessions judge rejected the appeal against conviction. Hence, the petitioner approached the High Court of Madhya Pradesh. The main contention of the petitioner is that the provisions of Section 354 violate Articles 14 and 15 of the Constitution as being discriminatory against a man.
Issue
The issue dealt with in this case was whether Section 354 violates Articles 14 and 15 as it does not provide for outraging the modesty of a man.
Judgement
The Court held that the act of outraging modesty can be done either by a man or a woman. Even a woman who outrages the modesty of another woman would be punishable under this Section. It operates equally on a man or a woman. The issue of whether a man’s modesty was outraged was not made out by the petitioner. Further, Article 14 is not violated since it forbids class legislation but permits classification. The legislative intent seems to be the protection of the dignity and modesty of a woman.
The contention that the section is violative of Article 15(1) also fails since the Article prohibits discrimination on the basis of race, religion, sex, caste, and place of birth only. Therefore, if such discrimination is not only based on the above grounds but also on additional grounds such as decency, decorum, public morals, etc., it would be valid. Further, these acts are also criminalised in other jurisdictions. Every civilised country will seek to protect the modesty of a woman from being outraged. The revision petition was dismissed.
Chaitu Lal v. State of Uttarkhand (2019)
Facts
The accused was convicted under Sections 354, 511, and 376 of the IPC. He was sentenced to a rigorous imprisonment of one year for Section 354 and further two years for conviction under Sections 511 and 376 along with a fine of rupees two hundred. The facts leading to the case are that the accused attempted to molest his aunt, who was the complainant in this case. The trial court convicted him and awarded a punishment of one year of rigorous imprisonment under Section 354.
Issue
The relevant issue before the Supreme Court was whether there was enough evidence to convict him for outraging the modesty of a woman.
Judgement
The Court placing reliance on judgements where it is held that there must be a culpable intention and usage of criminal force to satisfy the ingredients under Section 354 held that he was guilty beyond reasonable doubt since he had outraged her modesty. The appeal against conviction was hence dismissed. The punishment given by the trial court was valid and he will have to first undergo one year of imprisonment under Section 354 following which he will undergo two years of imprisonment under Section 511 and Section 376.
Conclusion
Section 354 is an important provision in the IPC for the protection of women. More stringent punishment needs to be prescribed to ensure that there is deterrence and a reduction in crime. Currently, the maximum term of punishment prescribed under this Section is five years. However, this seems to be grossly inadequate considering the rising number of crimes against women in our society. However, only stringent punishment will not suffice. The government must take sufficient efforts to ensure that crimes against women are reduced in society.
Frequently Asked Questions (FAQs)
When was Section 354 incorporated into the IPC? Were there any changes to it and if yes, why?
Section 354 was incorporated when the IPC came into force, i.e., 1860. The punishment prescribed until 2013 was a maximum of two years of imprisonment. However, there was a need to increase the punishment to deter the increasing crimes against women. The Criminal Law (Amendment) Act, 2013, was enacted, which enhanced the punishment to a maximum of ten years imprisonment.
What is the difference between Section 352 and Section 354?
While Section 352 deals with criminal force, Section 354 specifically deals with assault or criminal force used against a woman that outrages her modesty.
How is outraging modesty different from rape?
Outraging the modesty of a woman has lesser gravity as compared to the offence of rape and therefore the punishment prescribed is comparatively lesser.
Is protection available to a man under this section?
No, only outraging the modesty of a woman is punishable. However, a woman who outrages modesty of another woman is also punishable under this Section.
References
- https://indiankanoon.org/doc/203036/
- https://www.myadvo.in/bare-acts/indian-penal-code-1860/ipc-section-354/
- https://www.scconline.com/blog/post/tag/section-354-ipc/
- https://www.livelaw.in/tags/section-354-ipc
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