- it is seen that the petitioner is charged for the offences under Sections 354/354A/506 of IPC. Section 354 IPC, makes penal the assault or use of criminal force to a woman to outrage her modesty. The essential ingredients of offence under Section 354 IPC are: (a) that the assault must be on a woman; (b) that the accused must have used criminal force on her; (c) that the criminal force must have been used on the woman intending thereby to outrage her modesty. In Raju Pandurang Mahale vs State Of Maharashtra And Anr reported in (2004) 4 SCC 371, it has been observed that :
“What constitutes an outrage to female modesty is nowhere defined. 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 very relevant, but its absence is not always decisive. Modesty in this Section is an attribute associated with female human beings as a class. It is a virtue which attaches to a female owing to her sex. The act of pulling a women, removing her saree, coupled with a request for sexual intercourse, is such as would be an outrage to the modesty of a woman; and knowledge, that modesty is likely to be outraged, is sufficient to constitute the offence without any deliberate intention having such ourtrage alone for its object. As indicated above, the word ‘modesty’ is not defined in IPC. The shorter Oxford Dictionary (Third Edn.) defines the word ‘modesty’ in relation to woman as follows: “Decorous in manner and conduct; not forward or lowe; Shame-fast: Scrupulously chast.” Modesty is defined as the quality of being modest; and in relation to woman, “womanly propriety of behaviour; scrupluous chastity of thought, speech and conduct.” It is the reserve or sense of shame proceeding from instinctive aversion to impure or coarse suggestions. As observed by Justice Patterson in Rex v. James Llyod, (1876) 7 C & P 817. In order to find the accused guilty of an assault with intent to commit a rape, court must be satisfied that the accused, when he laid hold of the prosecutrix, not only desired to gratify his passions upon her person but that he intended to do so at all events, and notwithstanding any resistance on her part. The point of distinction between an offence of attempt to commit rape and to commit indecent assault is that there should be some action on the part of the accused which would show that he was just going to have sexual connection with her. Webster’s Third New International Dictionary of the English Language defines modesty as “freedom from coarseness, indelicacy or indecency, a regard for propriety in dress, speech or conduct”. In the Oxford English Dictionary (1933 Edn.), 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 shame proceeding from instinctive aversion to impure or coarse suggestions.” 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 be possessed of ‘modesty’ which could be outraged. In answering the above question the majority view was 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 have to be gauged by contemporary societal standards. It was further observed in the said case that the essence of a woman’s modesty is her sex and from her very birth she possess 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) the ultimate test for ascertaining whether modesty has been outraged is whether the action of the offender is such as could be perceived as one which is capable of shocking the sense of decency of a woman. The above position was noted in Rupan Deal Bajaj (Mrs.) and Anr. v. Kanwar Pal Singh Gill and Anr., [1995] 6 SCC 194.
When the above test is applied in the present case, keeping in view the total fact situation, the inevitable conclusion is that the acts of accused appellant and the concrete role be consistently played from the beginning proved combination of persons and minds as well and as such amounted to “outraging of her modesty” for it was an affront to the normal sense of feminist decency.”
Determining the parameters in granting anticipatory bail in cases of serious offences. The Supreme Court in Bhadresh Bipinbhai Sheth vs State Of Gujarat & Anr reported in (2016) 1 SCC 152 after analyzing the entire law has observed as under:-
“(a) The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made;
(b) The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a court in respect of any cognizable offence;
(c) The possibility of the applicant to flee from justice;
(d) The possibility of the accused’s likelihood to repeat similar or other offences;
(e) Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her;
(f) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people;
(g) The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which the accused is implicated with the help of Sections 34 and 149 of the Penal Code, 1860 the court should consider with even greater care and caution, because overimplication in the cases is a matter of common knowledge and concern;
(h) While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors, namely, no prejudice should be caused to free, fair and full investigation, and there should be prevention of harassment, humiliation and unjustified detention of the accused;
(i) The Court should consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;
(j) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused in entitled to an order of bail.”
