Mukhtiyar Hussain And 2 Others vs State Of U.P. And Another
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Allahabad High Court

Mukhtiyar Hussain And 2 Others vs State Of U.P. And Another on 20 January, 2025

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2025:AHC:9097
 
Court No. - 77
 

 
Case :- APPLICATION U/S 482 No. - 26682 of 2024
 

 
Applicant :- Mukhtiyar Hussain And 2 Others
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Sanjai Srivastava
 
Counsel for Opposite Party :- G.A.,Najakat Ali
 

 
Hon'ble Arun Kumar Singh Deshwal,J.
 

1. Heard Sri Sanjay Srivastava, learned counsel for the applicants, Sri Najakat Ali, learned counsel for the opposite party no.2 and learned AGA for the State.

2. Present application under Section 482 Cr.P.C. has been filed for quashing the summoning order dated 08.07.2024 passed by Special Judge (POCSO Act), Rampur as well as entire proceeding of Complaint Case No.47 of 2024, under Sections 354, 323, 504, 506 IPC and 7/8 POCSO Act, P.S.- Shahzaadnagar, District Rampur.

3. Contention of learned counsel for the applicant is that a civil litigation between the applicant no.1 and opposite party no.2 has been pending regarding cancellation of sale deed executed by the opposite party no.2 in favour of applicant no.1 on the ground the entire sale consideration has not been given. It is further submitted that because of that reason a minor scuffle took place between the applicants and opposite party no.2 but opposite party no.2 on the basis of exaggerated allegation has filed the impugned complaint. He further submitted that from bare perusal of the statement of victim girl, it is clear that no offence including offence under POCSO Act is made out against the applicants. It is lastly submitted that it is no injury case and impugned proceeding is nothing but malicious to compel the applicant to enter into compromise in the civil suit instead of seeking relief through suit. It is also submitted by counsel for the applicant that while passing the impugned summoning order, the court below has not recorded any reasoning for making out a prima facie case against the applicants, therefore, the impugned summoning order is erroneous being in violation of the judgement of Lalankumar Singh vs State of Maharashtra; 2022 SCC Online SC 1383.

4. Per contra, learned counsel for the opposite party no.2 submitted that civil suit is pending between the parties but the applicants just to pressurise the opposite party no.2 to withdraw the aforesaid civil suit, committed the offence as mentioned in his complaint.

5. Learned AGA has also adopted the argument of counsel for the opposite party no.2.

6. Heard the rival submission of learned counsel for the parties and perused the record. So far as contention of learned counsel for the applicant is that reason should be recorded in view of the judgment of Lalankumar Singh's case while summoning the accused, in fact, is incorrect because the Apex Court in the case of Sharif Ahmad and Another vs State of U.P. and another; reported in 2024 LiveLaw SC 337 has observed that no reason is required to be mentioned in the summoning order only prima facie satisfaction should be mentioned on the averment of allegation on the part of the court below. However, on perusal of the statement of victim recorded under Section 200 Cr.P.C., it is clear that there is no allegation which would fall the case in the category of outraging the modesty of victim. The Apex Court in the case of Naresh Aneja @ Naresh Kumar Aneja vs State of U.P. and other; 2025 SCC Online SC (3) has also observed that mere use of criminal force without any intention to outrage the modesty will not attract the ingredients of Section 354 IPC, therefore prima facie offence under Section 354 IPC and POCSO Act is not made out. Para 12 of Naresh Aneja @ Naresh Kumar Aneja (supra) is being quoted as follows;

"12. A bear perusal of Section 354, IPC reveals that for it to apply, the offence must be committed against a woman; criminal force must be applied against her; and such application of force must be with the intent to outrage her modesty. [See : Raju Pandurang Mahale v. State of Maharashtra10]

12.1. Criminal force is defined in Section 350 IPC11, however, what exactly does modesty means, which is an essential aspect for this Section to apply, has not been defined so as to constitute an offence u/s 354 IPC. Any discussion on this Section is incomplete without reference to Rupan Deol Bajaj (supra) wherein the Learned Judges observed:

"14. Since the word 'modesty' has not been defined in the Penal Code, 1860 we may profitably look into its dictionary meaning. According to Shorter Oxford English Dictionary (3rd Edn.) modesty is the quality of being modest and in relation to woman means "womanly propriety of behaviour; scrupulous chastity of thought, speech and conduct". The word 'modest' in relation to woman is defined in the above dictionary as "decorous in manner and conduct; not forward or lewd; shamefast". 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".

15. ? From the above dictionary meaning of 'modesty' and the interpretation given to that word by this Court in Major Singh case [AIR 1967 SC 63 : 1967 Cri LJ 1 : 1966 Supp SCR 286] it appears to us that the ultimate test for ascertaining whether modesty has been outraged is the action of the offender such as could be perceived as one which is capable of shocking the sense of decency of a woman ?"

12.2. While we hold the above observations as also the discussion made in Major Singh (supra) in the highest esteem and regard, it must not escape us that the observations were made in the societal context and milieu of that time and its import today should be interpreted in our present context. Reference in this regard may be made to observations by Bhat, J in Attorney General v. Satish12,

"66. ? These require an element of application of physical force, to women. The expression "modesty" was another limitation as older decisions show that such a state was associated with decorousness [Rupan Deol Bajaj v. Kanwar Pal Singh Gill, (1995) 6 SCC 194 : 1995 SCC (Cri) 1059] of women. This added a dimension of patriarchy and class. [Section 354 (or any other provision of IPC) does not offer a statutory definition of the term "modesty", and over time, was interpreted broadly, contemporaneously with the developing and acknowledged role of women in society, to overcome its inherently colonial and patriarchal origins. ? One cannot be unmindful of the circumstances in which these provisions were enacted by a colonial power, at a time, when women's agency itself was unacknowledged, or had limited recognition. Further, women in India were traditionally?during the time of enactment of IPC, in the mid-Nineteenth Century?subordinated to the care of their fathers, or their husbands, or other male relatives. They had no share in immovable property; notions of gender equality were unheard of, or not permitted. Women had no right to vote. Quite naturally, the dignity of women? or indeed their autonomy, was not provided for.

67. The advent of the Constitution of India revolutionised?at least in law, all that. Regardless of gender, race, caste, religion or region, or all of the acknowledged sectarian and discrimination enabling barriers, everyone enjoyed equality of law, and equal protection of law (Article 14). Further, the provision in Article 15(1) proscribed discrimination by the State (in all its forms) on various grounds, including gender. Article 15(3) enabled the State to enact special provisions for women and children."

12.3. Turning to the facts of the instant case, keeping in view the contents of the FIR, the statement in the final report of the investigating officer, and the statement u/s 164 CrPC of the complainant, we are of the view that even prima facie the ingredients as referred to supra, are not met. The record is silent with respect to the use of any force, apart from bald assertions of mental and physical discomfort caused to the complainant by the appellant.

12.4. It is well settled that for mens rea to be established, something better than vague statements must be produced before the court. As evidenced by the annexures referred to above, i.e. the FIR, the preliminary investigation report as also the concluding portion of the chargesheet, no direct allegation nor any evidence in support thereof can be found attributing intent to the appellant. It cannot be said, then, that a case u/s 354 IPC is made out against the appellant."

7. As counsel for the opposite party no.2 submitted that this case may be disposed of finally as he does not propose to file any counter affidavit as issue is purely technical.

8. In view of above, present application is disposed of and the order dated 07.08.2024 passed by learned Special Judge (POSCO Act) in Complaint Case No.47 of 2024 is hereby set aside. Matter is remanded back to the court below to pass a fresh order in view of observation made above.

9. The present application is partly allowed.

10. The court below is free to pass fresh order within a period of two months from the date of production of copy of this order.

Order Date :- 20.1.2025

A.Kr.