TaxTMI 
TaxTMI 
1995 (10) TMI 201
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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 husband Mr. B.R. Bajaj, who also happens to be a senior I.A.S. officer of the Punjab Cadre, lodged a complaint in the Court of the Chief Judicial Magistrate for the same offences, alleging, inter alia, that Mr. Gill being a highranking Police Officer the Chandigarh Police had neither arrested him in connection with the case registered by the Police on his wife's complaint nor conducted investigation in a fair and impartial 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 Judicial Magistrate transferred it to a Judicial Magistrate for disposal and the latter, in view of the fact that an investigation by the Police was in progress in relation to the same offences, called for a report from the Investigating Officer in accordance with Section 210 of Code of Criminal Procedure ("Cr.P.C." for short). In the meantime - on December 16, 1988 to be precise - Mr. Gill moved the High Court by....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... and improbable; (iv) the Investigating Officer did not apply his mind to the allegations made in the F.I.R., for had he done so, he would have found that there was no reason to suspect commission of a cognizable offence, which was the 'sine qua non' for starting an investigation under Section 157 Cr. P.C.; and (v) there was unreasonable and unexplained delay of 11 days in 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 therein. Mrs. Indira Jaisingh, the learned counsel appearing in support of the appeals strongly criticised the impugned judgment 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 next contended that the finding of the High Court that the allegations ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and of cases by way of illustration wherein such power process of any court or otherwise to secure the lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. (1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155 (2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (....
X X X X Extracts X X X X
X X X X Extracts X X X X
....Mr. Gill, who had come without his wife, and some other senior Government officers (named in the F.I.R.). The party had been arranged in the lawn at the back of the house and as per tradition in Indian homes, the ladies were sitting segregated in a large semi-circle and 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 to the circle of the ladies and joined them occupying the only two vacant chairs available, almost on opposite sides of the semi-circle. 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 to 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. Gill called out to me where I was sitting and said, "Mrs. Bajaj come and sit here, I want to talk to you about....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ny problem about jurisdiction of the Police Officer later." Sequentially summarised the statements and allegations as contained in the earlier quoted three paragraphs of the F.I.R. would read thus: (i) Around 10 P.M. Dr. CHutani and Shri Gill walked across to and set 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 a chair next to him Mr. Gill suddenly pulled that chair close to his chair; (iv) Felling 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 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 4" from her knees; (vii) He then by an action with the crook of his finger asked her to "get up immediately" and come along with him; (viii) When she strongly objected to his behaviour and asked him to go away from there he repeated his e....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ld be outraged. In answering the above question Mudholkar J., who along with Bachawat J. spoke for the majority, held that when any act done to or in the presence of a woman is clearly suggestive of sex according to the common notions of mankind that must fall within the mischief of Section 354 IPC. 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 woman's modesty is her sex and from her very birth she possesses the modesty which is the attribute of her sex. From the above dictionary meaning of 'modesty' and the interpretation given to that word by this Court in Major Singh's case (supra) it appears to us that the ultimate test for ascertaining whether modesty has been outraged is, is the action of the offender such as could be perceived as one which is capable of shocking the sense of decency of a woman. When the above 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' ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... that those ingredients being states of mind may not be proved by direct evidence and may have to be inferred from the attending circumstances of a given case. Since, however, in the instant case we are only at the incipient stage we have to ascertain, only prima 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 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 designations of the people given in the FIR indicate. While on this point we may also mention that there is nothing in the FIR to indicate, even remotely, that the indecent act was committed by Mr. Gill, accidentally or by mistake....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nce is trivial would undoubtedly depend upon the nature of the injury, the position of the parties, the knowledge or intention with which the offending act is done, and other related circumstances. There can be no absolute standard or degree of harm which may be regarded as so slight that a person of ordinary sense and temper would not complain of the harm. It cannot be judged solely by the measure of physical or other injury the act causes". (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 F.I.R. On perusal of the FIR we have found that Mr. Gill, the top most official of the State Police, indecently behaved with Mrs. Bajaj, a Senior lady IAS Officer, in the presence of a gentry and inspite 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 to 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....tion ('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 stating 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 "untraced".....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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 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 made on August 8, 1989. Be that as it may, it appears that even thereafter the same learned Chief Judicial Magistrate continued to deal with the matter till September 16, 1989 when he made the following order: "The matter concerning State vs. K.P.S. Gill was being dealt with by me when I was Legal Remembrancer, Chandigarh Administration, Chandigarh. Accordingly, the papers produced by the prosecution alongwith 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 with law. Sh. A.S. Chahal, advocate, who is appearing on behalf of Mrs. Rupan Deol Bajaj, complainant has been directed to appear before that court on 18.9.1989 for further proceedings. Papers be sent to that court immediately". It passes ou....
X X X X Extracts X X X X
X X X X Extracts X X X X
....if in a given case - as the present one - the complainant, as the person aggrieved 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 made out, but the Court overrules such objections, it is just and desirable that the reasons therefor be recorded. Necessity to give reasons which disclose proper appreciation of the issues before the Court needs no emphasis. Reasons introduce clarity and minimize changes 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 does not contain any reason whatsoever, even 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 course 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 Secti....