SECTION 354 IPC - Indian Penal Code - Assault or criminal force to woman with intent to outrage her modesty

Description of IPC Section 354

According to section 354 of Indian penal code, Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will there by outrage her modesty, shall be punished with imprisonment of either description for a term which shall not be less than one year but which may extend to five years, and shall also be liable to fine¹.

¹ Criminal Law (Amendment) Act, 2013

‘Outraging Modesty of a Woman’ punishable under Section 354, Indian Penal Code, 1860 (‘IPC’) is an offence which must be taken closer note of given its similarity with the offence of ‘Insulting Modesty of a Woman’ punishable under Section 509, IPC.

Read about the offence of ‘Insulting Modesty of a Woman’, here.

On that account it is important that we understand when an assault is indeed an ‘Outrage’ and not simply an ‘Insult’ to the modesty of a woman.

WHAT IS SECTION 354, IPC?

Assault or criminal force to woman with intent to outrage her modesty: 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 shall not be less than one year but which may extend to five years, and shall also be liable to fine.

UNDERSTANDING SECTION 354, IPC.

Section 354, IPC has been enacted with a view to protect a woman against indecent assault as well as to safeguard public morality and decent behaviour. This section punishes an assault, or use of criminal force to any woman with the intention or knowledge that the woman’s modesty will be outraged.

What constitutes an ‘outrage to female modesty’ has not been defined anywhere under the IPC. It is rather subject to the facts and circumstances of each case. Additionally, the socio-cultural composition of (and the manners & customs observed in) the society that the victim-woman belongs to, significantly go into the determination of what may be construed as an act of outrage to her modesty.

The Supreme Court in one of its judgments has observed that ‘modesty’ must be understood to be feminine decency and a virtue that women possess owing to their sex. Culpable intention of the accused is the crux of this offence.

In order to understand Section 354, IPC better, let us imagine the following –

- B pulls a woman towards himself and while removing her saree, gushes in with a request for sexual intercourse, intending thereby to outrage her modesty. A has committed an offence under Section 354, IPC.

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UNDERSTANDING CRIMINAL LIABILITY UNDER IPC

Generally, for any criminal liability to arise i.e., for a person to be held guilty for any offence under the IPC, it is important that he/she fulfils the essential criminal ingredients or criteria stipulated under IPC for that offence.

Broadly, IPC defines offences by laying down two of its essential components –

a. Actus Reus i.e., the criminal act which the accused must have compulsorily performed.

AND

b. Mens Rea i.e., the criminal mind which the accused must have compulsorily entertained while performing the above-stated criminal act.

It is when the accused performs a criminal act under the influence of a criminal mind, that he can be said to have committed the offence in the eyes of law.

In other words, the criminal act should co-exist with a criminal mind in order for an act to be an offence and for the criminal liability to arise thereunder.

WHEN CAN A PERSON BE HELD GUILTY UNDER SECTION 354, IPC?

For a person to be held guilty for the offence of ‘Outraging Modesty of a Woman’ under Section 354, IPC it is important for the prosecution to compulsorily prove the following:

1. Nature of the criminal act for ‘Assault or criminal force to woman with intent to outrage her modesty’:

The accused must have ‘assaulted’ or used ‘criminal force’ against a woman.

‘Criminal Force’ and ‘Assault’ are defined under Section 350 and 351 of IPC, respectively.

Criminal Force is an intentional act of causing, changing or ceasing motion in another person, without their consent, in order to commit an offence or to cause fear, injury or annoyance to them.

E.g., A intentionally pulls up a veil of B, a purdanashin woman, without her consent, so as to frighten or annoy her. A has used criminal force on B.

Assault is an act of making a gesture or preparation with the intention or knowledge that by such an act he/she can thereby cause in another fear or apprehension that ‘criminal force’ may be used against the latter.

E.g., A demands from B, a purdanashin woman, to reveal her face to him. Upon B’s refusal, A charges at her and stops her in her steps with an intention to pull up her veil so as to frighten or annoy her. A has assaulted B.

For the offence of Section 354, IPC to be made out, it is necessary for an accused to have either committed an assault upon or used criminal force against a woman.

If the act was not of the above description, it is not a criminal act for the purpose of Section 354, IPC failing which, a person could not be convicted of an ‘Assault or criminal force to woman with intent to outrage her modesty’.

Consult: Top Criminal Lawyers in India

2. Nature of the criminal mind for ‘Assault or criminal force to woman with intent to outrage her modesty’:

The accused must have committed the above criminal act while entertaining either of the following criminal minds:

a) The act must be done with the intention of outraging the modesty of a woman,

OR

b) The act must be done with the knowledge that his act is likely to outrage the modesty of a woman.

To prove the essential ingredient of intention or knowledge, the prosecution generally makes use of the circumstances surrounding the offence. The applicability of Section 354 varies from case to case as the Courts are aware of the fact that such charges are easy to make but very difficult to rebut. Independent witness may not be available at all times as such acts are commonly carried out in private. This is why, the Courts have been consistent with the observation that such charges may be verified by the surrounding circumstances and that the oral evidence of the victim must inspire confidence, i.e. it should be convincing and reliable.

3. Performance of the criminal act accompanied by the criminal mind i.e., execution of the offence:

While entertaining the above-stated criminal mind (intention or knowledge) the accused must have committed the above-stated criminal act. This would constitute the offence of ‘Assault or criminal force to woman with intent to outrage her modesty’.

The co-existence of the criminal mind and the criminal act should be proved by the prosecution in order to establish guilt under Section 354, IPC.

UNDERSTANDING ‘CRIMINAL MIND’ FOR THE PURPOSE OF SECTION 354, IPC

As is with most of the false and malicious complaints, complaints under Section 354, IPC are also mostly exaggerated versions of sudden fights or are pure figments of imagination. The inconsistencies in the FIR and during trial are one of the facts leading to acquittal of the accused. Some incidents mentioned in the FIRs are so bizarre that no man of ordinary prudence would believe it. Also, nowadays it is often seen that unscrupulous women cry molestation. Therefore, to put such cases at rest, the Bombay High Court has held:

"The test will be whether a reasonable man will think that the act of the accused was intended to or was known to be likely to outrage the modesty of the woman. If a quarrel takes place suddenly, for which both parties are more or less to be blamed, then, by no stretch of imagination can it be held that in the resultant scuffle between the quarrelling parties, the accused persons either intended or knew it to be likely that they will thereby outrage the modesty of woman."

CAN A POLICE-OFFICER MAKE AN ARREST UNDER SECTION 354, IPC WITHOUT WARRANT?

Yes, a police officer can arrest a person suspected to have committed an offence under Section 354, IPC without warrant from the Court (a warrant is a Court-order authorising a police officer to carry out an arrest).

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IS THE OFFENCE UNDER SECTION 354, IPC, BAILABLE?

No, the offence under Section 354, IPC is not bailable.

HOW TO GET BAIL IF CHARGED UNDER SECTION 354, IPC?

Getting bail in a Section 354, IPC case is not an easy task. The severity of the crime is such that it has been characterized as a non-bailable offence.

In order to get bail in such cases, an accused would require strong reasons.

Depending on the stage of the case, the accused can either apply for a regular bail after he has been arrested or can ideally apply for an anticipatory bail well-before the arrest is made. The Court will consider various essentials such as antecedents of the accused, his status in the society, the motive for the offence, police charge sheet, etc. After considering all the essentials if the reasons favour the accused, bail will be granted to him.

It is crucial to take assistance from an experienced criminal lawyer in cases like these.

REGULAR-BAIL

1. In order to apply for regular bail when one is wrongfully accused under Section 354 IPC, the alleged accused will have to submit an application for bail in the Court of Area Magistrate.

2. The Court will then send the summons out to the other party and will fix a date for the hearing.

3. On the date of hearing, the Court will hear arguments from both sides and would give a decision based on the facts and circumstances of the case.

ANTICIPATORY-BAIL

1. In case the accused has an apprehension of an arrest under Section 354 of the IPC, he or she can also file an application for anticipatory bail with the help of a criminal lawyer.

2. The lawyer will file the anticipatory bail application in the requisite Court having the authority to adjudge the particular criminal matter along with a vakalatnama.

3. The Court will then notify a public prosecutor about the anticipatory bail application and would ask him to file objections, if any.

4. Thereafter, the Court will appoint a date of hearing and after hearing the final arguments of both the parties would give a judgment based on the facts and circumstances of the case.

Consult: Top Criminal Lawyers in India

IS THE OFFENCE UNDER SECTION 354, IPC, COMPOUNDABLE?

The offence under Section 354, IPC is compoundable i.e., law allows for a compromise to be recorded between the victim and the offender.

However, such offence may be compounded by the victim-woman who was subject to an assault or criminal force, (as per Section 320, Code of Criminal Procedure, 1973) only with the permission of the Court before which prosecution for such offence is pending.

WHAT IS THE PUNISHMENT PROVIDED UNDER SECTION 354, IPC?

Section 354, IPC makes ‘Assault or criminal force to woman with intent to outrage her modesty' punishable with imprisonment for a term which shall not be less than one year but which may extend to five years, and with fine.

WHAT TO DO IF INVOLVED IN A CASE UNDER SECTION 354, IPC?

A crime of the nature of ‘Assault or criminal force to woman with intent to outrage her modesty’ is a tricky case to deal with, both for the victim and the accused.

A person accused thereunder can face penalties, if convicted. On the other hand, it is also difficult for the prosecution to prove the charges levied by it against such accused.

This is why it is important for both the prosecution and the defence to thoroughly prepare for the case.

A person involved in such a case must know all his/her rights before and after an arrest. For this purpose, one must take the help of his/her lawyer.

One should also prepare a timeline of events and take it down on a piece of paper so that it is easier to brief the lawyer about the case. This will also help the lawyer to formulate a strategy to successfully conduct the trial and convince the Court to adjudge in your favour. The lawyer will be able to guide you on the available defences, pleas and bargains likely to be offered and the expectant result of the trial, depending upon the facts and circumstances of your case.

Further, it is important to have a fair understanding of the law involved in an ‘Assault or criminal force to woman with intent to outrage her modesty’ case. One must sit with his/her lawyer and understand the procedure as well as the law governing the case. It is also critical to perform your own research and understand the risks involved and how you can overcome the same.

One must also be aware of the rights of a person if he/she is arrested under Section 354 for outraging the modesty pf a woman.

The rights that are guaranteed by the Constitution of India and even the Code of Criminal Procedure (CrPC) have been stated below:

1. Right to be informed of grounds of arrest which has been made – Section 50(1) of the Code of Criminal Procedure, 1973 (CrPC) and Article 22(1) of the Constitution of India enforce this right.

2. Right to inform the relatives/ friends – Police officer making arrest has to immediately give the information regarding such arrest and the place where the arrested person is being held to any of his/her friends, relatives or such other persons as may be disclosed or nominated by the arrested person, as per Section 50A of the CrPC.

3. It is also the duty of the police officer to inform the person arrested of his/her rights.

4. Right to be informed of right to bail as per Section 50(2) of CrPC. The arrested person also has a right to be released on bail, when arrested without warrant for an offence other than a non-cognizable offence.

5. Right to be produced before a magistrate without delay – It is illegal to keep a person in detention for more than 24 hours without the orders of the Magistrate as per Section 56 of CrPC and Article 22(2) of the Constitution of India. Right of not being detained for more than twenty-four hours is also covered in Section 76 of CrPC.

6. Right to consult a legal practitioner – This right begins from the moment the arrest is made. It is required that the arrested person should contact his lawyer without any delay. This right is also covered under Article 22(1) of the Constitution of India, along with Section 41D of CrPC, and Section 303 of CrPC.

7. Manhandling and Handcuffing – It is illegal to manhandle a person at the time of arrest.

8. Search of arrested person who is female – In case of a women offender only a female police can search another female. The search should be carried out in a decent manner. A male police officer cannot search a female offender. He can however search a woman’s house.

9. Also there exists a right to be examined by a medical practitioner.

10. Arrested person has a right to legal aid and fair trial. Article 39-A states that the government in an effort to secure justice should endeavour to provide free legal aid to people in need.

11. Right to remain silent is also an important right. This has been ensured in CrPC and even the Indian Evidence Act.

12. Right against Handcuffing and Torture.

13. If your personal items are kept by the police, you have a right to receive a receipt for the same so that you can take them later when you are released on bail.

If you have been accused in a 354, IPC case and are preparing your version of events with the lawyer, it is important to be aware of the Attorney-client privilege. This means the statements that are made in confidence to the lawyer/advocate are protected. The attorneys are restricted to share this confidential information that the client shares with him/her. Therefore, being honest and open to your attorney’s questions is the best route of mounting a sound legal defence.

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WHAT TO DO IF INVOLVED IN A FALSE CASE UNDER SECTION 354, IPC?

The Supreme Court has, while adjudicating a Section 354, IPC case, stated that the approach that ordinarily a lady would not put her character at stake may not be wrong but the same cannot be applied universally. Each case has to be determined on the touchstone of the facts and circumstances surrounding it as the law reports are replete with decisions where charges under sections 376 (rape) and 354 (outrage the modesty of a woman) have been found to be falsely advanced.

It is advisable that in such cases, the accused must talk to his/her lawyer and explain the entire scenario to him/her without even minor alterations as such changes can have a big impact on the case. You should discuss the case thoroughly with the lawyer, even multiple times if you believe that you were not able to make your lawyer understand some of the technicalities involved in the case earlier. You must also do your own research about the case and prepare yourself accordingly for the trials with the help of your lawyer. You should follow your lawyer’s instructions properly and take advice for things even as minor as your appearance in the Court.

WHY DO YOU NEED A LAWYER IN CASES RELATED TO SECTION 354 OF THE INDIAN PENAL CODE?

Being charged with a crime, whether major or minor, is a serious matter. A person facing criminal charges risks severe penalties and consequences, such as jail time, having a criminal record, and loss of relationships and future job prospects, among other things. While some legal matters can be handled alone, a criminal arrest of any nature warrants the legal advice of a qualified criminal lawyer who can protect your rights and secure the best possible outcome for your case.

If you're facing criminal prosecution, a criminal lawyer can help you understand:

• The nature of the charges filed;

• Any available defenses;

• What plea bargains are likely to be offered; and

• What is expected after trial or conviction.

This is why it is important to have a criminal lawyer by your side to help you when charged with a crime as heinous as the one mentioned under section 354 of the Indian Penal Code.