Author: Asmita Chakraborty
Sec. 354 of Indian Penal Code, 1860
Section 354 of the Indian Penal Code, 1860 defines the offence of assault or criminal force on women with the intent to outrage her modesty and say as under[1]:
“Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.”
Such an offence is a cognizable, non bailable offence and is can be tried by any magistrate. Additionally, this offence is also not listed under Section 320 that is the list of compoundable and hence is a non-compoundable offence.
Thus the essential ingredients for attracting the provisions of Section 354 are as follows:
- There must be an assault on a woman
- That there must have been use of criminal force on her by the accused
- That, such use of criminal force must have been done with the intent of outraging her modesty.
The Supreme Court in the famous case of State of Punjab V. Major Singh[2] has held that any act done in the presence of a woman which is suggestive of sex according to the general conscience of the mankind, such act is said to fall within the purview of this section. It was further added that the essence of a woman’s modesty is her sex. The culpable intention of the accused is the crux of the matter. The reaction of the woman is relevant but the absence of it is not always decisive. A woman may not appreciate the significance of such act, but such acts by the accused is nevertheless punishable under this Section.
The Criminal Law Amendment Act, 2013 added four additional sub sections to Section 354 as Section 345A, 354B, 354C, 354D. The newly introduced sections cover the offence of Sexual Harassment, Assault or Use of Criminal Force on Women with an intent to disrobe her, Voyeurism, Stalking respectively. The Addition to section 354 was the outcome of the J S Verma Committee Report which was constituted to suggest changes in the laws regarding sexual assault in India so as to ensure a speedy and fast trail of the accused in such cases. The nation-wide outrage, over the brutal Gang Rape in Delhi of a physiotherapy intern and her subsequent death was the driving force behind the Criminal Law Amendment Ac, 2013.
Sec. 354A of Indian Penal Code, 1860
Section 354A introduced in the Indian Penal Code, 1860 by the Criminal Law Amendment Act, 2013 made Sexual Harassment an Offence. The Section reads as following[3]:
“1) A man committing any of the following acts—
- physical contact and advances involving unwelcome and explicit sexual overtures; or
- demand or request for sexual favours; or
- showing a pornography against the will of a woman; or
- making sexually coloured remarks, shall be guilty of the offence of sexual harassment.
2) Any man who commits the offence specified in clause (I) or clause (ii) or clause (iii) of sub-section (I) shall be punished with rigorous imprisonment for a term which may extend to three years, or with fine, or with both.
3) Any man who commits the offence specified in clause (iv) of sub-section (I) shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both”
The essentials of Sexual Harassment has been defined in the famous case of Vishaka V.
State of Rajasthan[4] which are as follows:
- A physical contact and advance involving unwelcome sexual overtures or
- A demand or request for sexual favours; or
- Making sexually coloured remarks; or
- Forcibly showing pornography; or
- Any other unwelcome physical, verbal or non-verbal conduct of sexual nature.
The offence mentioned under Section 354A is a cognizable and bailable offence. While it was held in the case of Vishaka V. State of Rajasthan, that sexual harassment at workplace of women where violative of Article 14, Article 21 and Article 23, the guidelines provided in by the supreme court in the same case was only limited to the ambit of workplace. However, with the enactment of the Criminal Law Amendment Act, 2013 and addition of Section 354A to the Act, 1860 the scope of sexual harassment of women has been widened to any location, not just the workplace.
Sec. 354B of Indian Penal Code, 1860
Section 354B: this section covers the offence of use of criminal force by accused with the intent to disrobe a women and is stated as[5]:
“If a man assaults or uses criminal force to any woman or abets such act with the intention of disrobing or compelling her to be naked in any public place, he commits an offence under section 354B, which is punishable with imprisonment between three and seven years.”
Such an offence under Section 354B has been kept as a cognizable and bailable offence and is triable by any magistrate but is not a compoundable offence as under section 320 of the Code, 1860.
The legislature in its wisdom thinks that there are instances where a woman may be forced to strip naked or is forcibly stripped to put her in an embarrassing position without any actual physical contact with such woman. Such situations were not covered under Section 354 and hence in the aftermath of the Nirbhaya Gang Rape, this section was added to bring such situations under the ambit of the Criminal Code, 1860. It has also been argued that mere intention to disrobe or any intention to compel a woman to disrobe would be enough to attract the provisions of this section. However, if no intention of such disrobing can be attributed to the accused then the provisions of this sections are not attracted.
Sec. 354 of Indian Penal Code, 1860 | Voyeurism
Section 354C: under this Section voyeurism has been made an offence and is defined as[6]:
“Any man who watches, or captures the image of a woman engaging in a private act in circumstances where she would usually have the expectation of not being observed either by the perpetrator or by any other person at the behest of the perpetrator or disseminates such image shall be punished on first conviction with imprisonment of either description for a term which shall not be less than one year, but which may extend to three years, and shall also be liable to fine, and be punished on a second or subsequent conviction, with imprisonment of either description for a term which shall not be less than three years, but which may extend to seven years, and shall also be liable to fine.
Explanations
- For the purpose of this section, “private act” includes an act of watching carried out in a place which, in the circumstances, would reasonably be expected to provide privacy and where the victim’s genitals, posterior or breasts are exposed or covered only in underwear; or the victim is using a lavatory; or the victim is doing a sexual act that is not of a kind ordinarily done in public.
- Where the victim consents to the capture of the images or any act, but not to their dissemination to third persons and where such image or act is disseminated, such dissemination shall be considered an offence under this section.”
The offence has been made a cognizable offence for both first time convicts and for subsequent convictions as well. However, in it is made a bailable offence only in case of first time conviction. In case of subsequent convictions, it has been made a non bailable offence. However, both can be tried by any magistrate. Previously, there was no provision making voyeurism a criminal offence under the Indian Penal Code, 1860. However, under The Information Technology Act, 2000 voyeurism was punishable both for men and women. But after introduction of this section voyeurism has become a criminal offence.
Sec. 354D of Indian Penal Code, 1860 | Stalking
354D: Stalking: this Section makes Stalking an offence and has been defined as[7]:
“(1) Any man who—
- follows a woman and contacts, or attempts to contact such woman to foster personal interaction repeatedly despite a clear indication of disinterest by such woman; or
- monitors the use by a woman of the internet, email or any other form of electronic communication,
commits the offence of stalking1;Provided that such conduct shall not amount to stalking if the man who pursued it proves that—- it was pursued for the purpose of preventing or detecting crime and the man accused of stalking had been entrusted with the responsibility of prevention and detection of crime by the State; or
- it was pursued under any law or to comply with any condition or requirement imposed by any person under any law; or
- in the particular circumstances such conduct was reasonable and justified.
(2) Whoever commits the offence of stalking shall be punished on first conviction with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine; and be punished on a second or subsequent conviction, with imprisonment of either description for a term which may extend to five years, and shall also be liable to fine.”
The offence under this section is a cognizable offence for both first time and second and subsequent convicts. However, for first time convicts the offence is a bailable one, while for second and subsequent convicts the same is non-bailable offence. However, the offence for a first time convict and for second and subsequent convict can be tried by any magistrate.
Stalking can be either physical stalking or could involve use of online platforms like Facebook, Instagram etcetera. An Indian Express Article[8] a victim of stalking opines that while stalking in itself is a crime, it is however a precursor to more serious crimes. Further the fact that for a first time offender the crime of stalking is made a bailable offence, creates a huge loophole in the law itself. Thus, by virtue of being bailable the accused doesn’t need to be produced before the court and can be released on bail from the police station itself. This lacuna in the law has been vehemently criticised by a number of people including Members of parliament, advocates, even the common people. Further stalking under 354D, is a blanket term. However, with the increased dependence of social media and the ease at which online information can be accessed, it becomes imperative to introduce a cyber-stalking or E-Stalking as a separate offence under the aegis of Section 354 as well. More specific and stringent rules are required to deal with the rampant cyber stalking that often takes place. While cyber stalking in India is covered under the Information Technology Act, 2008 it is also important that the criminal law takes into account cyber stalking as a separate offence and provide for stringent punishment to deter such actions.
Conclusion:
Section 354 of the Indian Penal Code defines the offence of assault or use of criminal force with the intent to outrage a woman’s modesty. Initially, only section 354 existed, however after the brutal incident of the Delhi Gang Rape, on the recommendations of the J S Verma Committee four more subsections to Section 354 of the Code, were incorporated. These additional four sections make Sexual harassment, use of force to disrobe a woman, voyeurism and stalking, offences punishable by Law. While, the incorporations of this sub sections have been a welcome change that was for long needed, the offence being made bailable creates a huge loophole, as the offender can be released on bail right from the police without having to be produced before the court. While, this provides as a safeguard against false cases of accusation, it still serves as a big loophole in cases of actual offenders. Additionally, with the rapid increase in the rate of cyber stalking it is also imperative that a new section be incorporated under section 354, which deals separately with the crimes of cyber stalking and provides for stringent punishment to deter the same.
[1] Section 354, Indian Penal Code, 1860.
[2] AIR 1963 SC 63
[3] IPC 354A, Indian Penal Code, 1860
[4] AIR 1997 SC 3011
[5] Yamini, Criminal Law( Amendment ) Act, 2013: Sexual Offences, www.lawctopus.com available at https://www.lawctopus.com/academike/criminal-law-amendment/ last seen on 10th November, 2018
[6] IPC 354C: Section 354C of the Indian Penal Code, 1860.
[7] Section 354D, Indian Penal Code, 1860.
[8] https://indianexpress.com/article/india/stalking-indian-laws-bailable-offence-crimes-4992783/
About the Author: Asmita is 2016-21 Batch student at Chanakya National Law University, Patna.
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