SECTION 509 IPC - Indian Penal Code - Word, gesture or act intended to insult the modesty of a woman

Description of IPC Section 509

According to section 509 of Indian penal code, Whoever, intending to insult the modesty of any woman, utters any word, makes any sound or gesture, or exhibits any object, intending that such word or sound shall be heard, or that such gesture or object shall be seen, by such woman, or intrudes upon the privacy of such woman, shall be punished with simple imprisonment for a term which may extend to three years, and also with fine¹.

¹ Criminal Law (Amendment) Act, 2013

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

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

WHAT IS SECTION 509, IPC?

Word, gesture or act intended to insult the modesty of a woman: Whoever, intending to insult the modesty of any woman, utters any words, makes any sound or gesture, or exhibits any object, intending that such word or sound shall be heard, or that such gesture or object shall be seen, by such woman, or intrudes upon the privacy of such woman, shall be punished with simple imprisonment for a term which may extend to three years, and also with fine.

UNDERSTANDING SECTION 509, IPC

Section 509, IPC has been enacted with a view to protect the modesty and chastity of a woman. This Section punishes an act of affront to the decency and dignity of a woman in the form of vulgar utterances, gestures, exhibition of indecent objects intending that such word or sound shall be heard or the gesture or object shall be seen by such woman or even intruding on the privacy of the woman.

What constitutes an ‘insult to female modesty’ requires no description. It is common knowledge that any word, spoken or written, any song, picture or figure exhibited which suggests lewd thoughts is immoral and insulting to female modesty, unless a woman is a consenting party to it. The fact that the indecent act was done unobserved by all except the woman is, of course, no excuse for the offence, because it is intended to punish such very acts. Nor does the fact that there were several women present, some of whom did not mind, matter.

In order to understand Section 509, IPC better, let us imagine the following –

• X while proceeding to her house was approached by Y, a motorcyclist who invited her to accompany him on his bike and further made sexual gesture to her with his hand. Y has committed and offence under Section 509, IPC.

• Y sends a letter containing indecent overtures, lewd and filthy suggestions to X, without her consent and to her immense disgust. Y has committed an offence under Section 509, IPC.

• Any act of eve teasing, catcalling & whistling, showing indecent objects etc. to a woman, would be covered under Section 509, 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 509, IPC?

For a person to be held guilty for the offence of ‘Insulting Modesty of a Woman’ under Section 509, IPC it is important for the prosecution to compulsorily prove the following:

1. Nature of the criminal act for ‘Word, gesture or act intended to insult the modesty of a woman’:

The accused must have ‘insulted’ a woman.

The ‘insult’ must be caused –

a. By uttering some word, or making some sound, or gesture or exhibiting any object so as to be heard or seen by such woman,

OR

b. By intruding upon the privacy of such woman.

If the act was not of the above description, it is not a criminal act for the purpose of Section 509, IPC failing which, a person could not be convicted of the offence of ‘Word, gesture or act intended to insult the modesty of a woman’ under Section 509, IPC.

2. Nature of the criminal mind for ‘Word, gesture or act intended to insult the modesty of a woman’:

The accused must have committed the above criminal act while entertaining the intention to insult the modesty of a woman

To prove the essential ingredient of intention, the prosecution generally makes use of the circumstances surrounding the offence. The applicability of Section 509 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 intention the accused must have committed the above-stated criminal act. This would constitute the offence of ‘Word, gesture or act intended to insult the modesty of a woman’.

The co-existence of the criminal mind and the criminal act should be proved by the prosecution in order to establish guilt under Section 509, IPC.

CAN A POLICE-OFFICER MAKE AN ARREST UNDER SECTION 509, IPC WITHOUT WARRANT?

Yes, a police officer can arrest a person suspected to have committed an offence under Section 509, IPC without warrant from the Court (a warrant is a Court-order authorising a police officer to carry out an arrest).

IS THE OFFENCE UNDER SECTION 509, IPC, BAILABLE?

Yes, the offence under Section 509, IPC is bailable.

Consult: Top Criminal Lawyers in India

HOW TO GET BAIL IF CHARGED UNDER SECTION 509, IPC?

Since the offence under Section 509, IPC is a bailable one, an accused arrested in the alleged commission of the same can apply for bail before the Investigating Officer, or if he is forwarded to the Court of Magistrate, before such Magistrate. Bail in a bailable offence can be granted by both the Court or the Investigating Officer.

In a bailable case, an accused is entitled to bail as a matter of right; it is not a favour bestowed on him by the authorities.

In such offences, the Officer or the Court does not reserve any discretion in the grant of bail. Bail can be claimed as of right and there is a statutory duty imposed upon the Police Officer as well as the Court to release a person on bail if he is prepared to give bail. As soon as it appears that the accused person is prepared to give bail, the police officer or the court before whom he offers to give bail, is bound to release him on such terms as to bail as may appear to the officer or the court to be reasonable. It would even be open to the officer or the court to discharge such person on his executing a bail-bond as provided in Section 436, Code of Criminal Procedure, 1973 (‘CrPC’) instead of taking bail from him. Though bail, in bailable offences, is a matter of right, the accused can be remanded to custody for breach of the conditions of bail/bail bond.

Bail-Bond is a document of promise signed by the accused whereby an accused is set at large on the condition that he will not flee the authorities, will cooperate in investigation, will not threaten witnesses or tamper with the evidence.

Bail is a document whereunder an accused and/or the surety is required to deposit security in the form of either cash or property papers (RC of a vehicle etc.,) with the court/police with the view to ensure accused’s compliance with the conditions of the bond. In the event of its non-compliance the security amount will be forfeited. Surety is the person who gives guarantee for the compliance of the bail conditions by the accused and that he will present himself before the court/police as & when required.

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

IS THE OFFENCE UNDER SECTION 509, IPC, COMPOUNDABLE?

The offence under Section 509, 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 whom the accused had intended to insult or whose privacy was intruded upon by him, as per Section 320, CrPC, only with the permission of the Court before which prosecution for such offence is pending.

WHAT IS THE PUNISHMENT PROVIDED UNDER SECTION 509, IPC?

Section 509, IPC makes ‘Word, gesture or act intended to insult the modesty of a woman' punishable with imprisonment for a term which may extend to three years, and also with fine.

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WHAT TO DO IF INVOLVED IN A CASE UNDER SECTION 509, IPC?

A crime of the nature of ‘Word, gesture or act intended to insult the modesty of a woman’ 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 ‘Word, gesture or act intended to insult the modesty of a woman’ 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 509 for insulting the modesty of 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 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 509, 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.

Consult: Top Criminal Lawyers in India

WHY DO YOU NEED A LAWYER IN CASES RELATED TO SECTION 509 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 509 of the Indian Penal Code.