Mohit Bansal vs State N.C.T. Of Delhi
2014 Latest Caselaw 5689 Del

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                       Judgment reserved on : 30.10.2014
                                       Judgment delivered on : 12.11.2014

+      Crl. M.A. No.1117/2014 in Crl. Appeal No.828/2009

MOHIT BANSAL
                                                               ..... Appellant
                              Through        Mr.Ramesh Gupta, Sr. Adv. with
                                             Mr.Bharat Sharma, Advocates.

                              versus

STATE N.C.T. OF DELHI
                                                              ..... Respondent
                              Through        Mr.Navin K. Jha, APP for State.


CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J.

1 This is an application filed under Sections 4 & 6 of the Probation

of Offenders Act, 1958 (hereinafter referred to as the 'said Act') read

with Section 482 of the Code of Criminal Procedure, 1973 (Cr.PC)

seeking probation in terms of the conviction which has been upheld

against the applicant by a Bench of this Court.

2 The averments contained in the application have been perused. It

is stated that the applicant is enrolled as a chartered accountant with the

Institute of Chartered Accountants of India. He had been convicted by

the Sessions Judge under Section 376 (2)(g) as also under Section 506

of the Indian Penal Code, 1860 (IPC).

3 His appeal before a bench of this Court was disposed of on

07.10.2013. His conviction under Section 376 (2)(g) had been set aside

and instead he had been convicted under Section 354 of the IPC; his

conviction under Section 506-II of the IPC had however been

maintained. While disposing of the appeal, the Court had noted that the

period of incarceration already suffered by the petitioner (seven months)

be treated as his sentence.

4 This appeal was disposed of on 07.10.2013.

5 The present application was filed on 06.01.2014. The foremost

submission of the learned counsel for the applicant is that he is not

challenging his conviction but seeks benefit of probation; submission

being that the period of sentence already undergone by him will cast a

stigma on his profession and he will be disqualified by the Institute of

Chartered Accountants; in case probation is granted, he will not suffer

such disqualification. It is pointed out that this Court has inherent

powers under Section 482 of the Cr.PC and such a discretion can be

exercised in his favour. Additional submission of the learned counsel for

the applicant being that in the Sessions Court, he had been charged only

for the offence under Section 376 (2)(g) of the IPC; he has suffered

conviction under Section 354 of the IPC for the first time; this charge

had not been framed against him and he had not been heard on the point

of sentence before the appellate Court; this is an error which has crept in

the judgment of the appellate Court. This error can be corrected under

the inherent powers of this Court. Learned counsel for the applicant has

placed reliance upon ILR (1988) MP 287 Hazi Abdul Rehman & Anr.

Vs. Ashok Kumar as also another judgment in 1977 Crl.LJ 532 Kewal

Ram Vs. State and Others to support his submission that where in the

appellate Court, the appellant had not been granted a hearing on

sentence, the High Court in its inherent powers had set aside the

sentence and thereafter granted benefit of probation to the said

appellants. Additional submission being that the Apex Court has time

and again reiterated that where an error has been committed, it is a

compulsion of judicial conscience to correct it.

6      Arguments have been negatived.

 7      This Court notes that after the appeal had been disposed of by this

Court on 07.10.2013 and while altering the conviction of the applicant

from Section 376 (2)(g) to Section 354 of the IPC and also modifying

the sentence to the period already undergone by him, this Court has

become functus officio. This Court, at this stage, has no power to alter

its own judgment. This is clearly stipulated in Section 362 of the Cr.PC.

There is a clear mandate in the language used in the said Section. It

prohibits a criminal Court, after signing its judgment or final order

disposing of the case, to alter or review the same except to correct a

clerical or arithmetical error. It is not the case of the applicant that by

granting benefit of probation and altering his sentence from the period

already undergone, it would not amount to correcting a clerical or an

arithmetical error.

8 The Apex Court in AIR 1981 SC 736 Sooraj Devi Vs. Pyare Lal

and Anr had noted that the inherent powers of the Court are not

contemplated by the saving provision contained in Section 362 of the

Cr.PC. Once the sentencing discretion had been exercised and the

sentence had already been awarded and the judgment had been signed

and pronounced, it could not have been altered.

9 In 1994 Crl. L.J. 2184 Moti Lal Vs. State of Madhya Pradesh, in

this context, the Apex Court while reiterating this position had

dismissed the criminal appeal wherein the High Court after having

sustained the conviction of the applicant under Section 304-I of the IPC

had sentenced him to undergo RI for a period of seven years. On a later

application filed before it under Section 482 of the Cr.PC, the High

Court had altered the conviction to Section 326 of the IPC and sentenced

the appellant to undergo RI for a period of three years. The Apex Court

had set aside this order noting that the High Court had no jurisdiction

under Section 482 of the Cr.PC to alter its earlier judgment.

10 Submission of the learned counsel for the applicant that Section

354 of the IPC is not an offence of the same category as Section 376 of

the IPC (for which the applicant had initially been charged) and as such

his conviction under Section 354 of the IPC without giving him a

hearing on sentence is improper, is a misreading of the law.

11 Under Section 222 of the Cr.PC, where a person has been charged

with an offence consisting of several particulars, a combination of some

only of which constitutes a complete minor offence, he may be

convicted of the minor offence although not specifically charged.

12 The Apex Court in AIR 2000 SC 297 State of Himachal Pradesh

Vs. Tara Dutta has reiterated this position that if an accused is charged

of a major offence but is not found guilty thereunder, he can be

convicted of a minor offence if the facts established indicate that such

minor offence has been committed.

13 In 2004 Crl. L.J. 1399 Aman Kumar Vs. Anr. Vs. State of

Haryana the Supreme Court had the occasion to deal with a situation

where the accused had initially been convicted under Sections 376

(2)(g)/511 of the IPC. The Supreme Court had found that there was no

material to show that the accused had committed sexual intercourse;

culpability under Section 376/511 of the IPC was not made out. At the

same time the Court had noted that this was a clear case of indecent

assault upon a women and essential ingredients of the offence

punishable under Section 354 of the IPC having been made out, accused

was convicted for the said offence. In this case also, there was no initial

charge under Section 354 of the IPC. In this context, the Supreme Court

had made the following observations:-

"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 woman, removing her dress 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 outrage 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 chaste."

14. Modesty can be described as the quality of being modest; and in relation to woman, "womanly propriety of behavior; scrupulous 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 Rexv. 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.

15. In that view of the matter, it would be appropriate to set aside the conviction of the appellants under Section 376(2)(g) and convict them under Section 354read with Section 34 IPC. Custodial sentence of two years each, with a fine of Rs. 500/- each and a default stipulation of three months rigorous imprisonment in case of

failure to pay the fine would meet the ends of justice. The appeal is allowed to the extent indicated above."

14 Thus the argument of the learned counsel for the applicant that

conviction under Section 354 of the IPC without hearing the applicant

could not be sustained is negatived.

15 The present application is without merit. Dismissed.

INDERMEET KAUR, J NOVEMBER 12, 2014 A