The Bombay High Court observed that following and abusing woman a couple of times is not capable of shocking the sense of her decency and that in such a case, Section 354 of the Indian Penal Code (IPC) will not be attracted.

The Nagpur Bench held thus in a criminal revision application filed by a man who questioned the legality, correctness, and propriety of the judgment of the Sessions Court by which his conviction was upheld.

A Single Bench of Justice Anil L. Pansare observed, “In the present case, all that has been done by the applicant is that he has on bicycle given a push to P.W. 1 while she was going to market. According to P.W. 1, the applicant had earlier followed her couple of times and abused her. … As regards following and abusing P.W. 1, the said act cannot be said to be capable to shocking the sense of decency of a woman. The act may be annoying but definitely would not shock the sense of decency of a woman.”

The Bench said that the subordinate courts committed an error in holding the applicant guilty for the offence punishable under Section 354 IPC.

Advocate A.R. Ingole appeared for the applicant while APP A.R. Chutake and Advocate P.K. Sathianathan appeared for the non-applicants/respondents.

In this case, the Magistrate had convicted the applicant for the offence punishable under Section 354 of IPC and sentenced him to undergo rigorous imprisonment for two years along with a fine of Rs. 2,000/-. There were only three witnesses and according to one of them, the incident occurred near Bombaywala Medical Stores. It was deposed that the applicant had followed the victim couple of times and abused her.

On the date of the incident, while the victim was going to the market, the applicant who was following her on bicycle, pushed/shoved her due to which she got annoyed but proceeded further. He followed her and hence, she beat him and this is how she narrated the incident. This evidence was found to be sufficient by the subordinate courts to convict him under Section 354 IPC that talks about assault, criminal force, sexual harassment, voyeurism, and stalking, that outrages the women’s modesty and privacy.

The High Court in the above regard said, “… the Supreme Court has noted that the essence of a woman’s modesty is her sex which she possesses by birth. The Supreme Court has held that 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 Court further noted that keeping in mind the conduct of the applicant, the ultimate act which he has done will have to be considered, which is pushing/shoving the victim while she was riding bicycle.

“It is not the case of P.W. 1 that the applicant has touched her inappropriately or has given push at a specific part of her body which made her position embarrassing. The contact with the part of the body of P.W. 1 has been not stated by P.W. 1. In these circumstances, merely because the applicant has on bicycle given a push to P.W. 1, to my mind cannot be said to be an act which is capable of shocking the sense of decency of P.W. 1”, added the Court.

The Court also observed that the act may be offensive or annoying but cannot be said to be compromising the decency of a woman. It said that there is no other evidence to bring home the guilt of the applicant and hence, the statement of the witness is not sufficient to attract ingredients of Section 354 IPC.

Accordingly, the High Court allowed the revision application and acquitted the applicant.

Cause Title- Mohammed Ejaj Shaikh Ismail v. State of Maharashtra & Anr. (Neutral Citation: 2023:BHC-NAG:17074)

Click here to read/download the Judgment