http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 6  

CASE NO.: Appeal (crl.)  278 of 1997

PETITIONER: Vidyadharan                                              

RESPONDENT: State of Kerala                                          

DATE OF JUDGMENT: 14/11/2003

BENCH: DORAISWAMY RAJU & ARIJIT PASAYAT

JUDGMENT: J U D G M E N T

ARIJIT PASAYAT, J

       Appellant faced trial for alleged commission of offences  punishable under Sections 354 and 448 of the Indian Penal Code, 1860  (for short the ’IPC’) and Section 3 (1) (xi) of the  Scheduled Caste and  Scheduled Tribe (Prevention of Atrocities) Act, 1989 (for short the  ’Act’). He was convicted and sentenced to undergo three months and six  months custodial sentence for offences relatable to Section 448 IPC and  Section 3 (1)(xi) of the Act respectively. No separate sentence was  imposed for the other offence. Aforesaid conviction and sentence was  affirmed by the High Court.  

       Prosecution case which led to the trial is essentially as follows:         While the victim (PW-1) was alone in her house on 1.10.1992 at  about 2 p.m. the accused entered into her house, went to the kitchen  where she was cooking and attempted to catch hold of her hand, that when  she attempted to escape from him by running to the front room and  attempting to close the door, the accused followed her, opened the door  forcibly and caught hold of and grasped her,  when she made a hue and  cry her brother PW-3 and other witnesses including PW-2 came there, and  at that time the accused left PW-1 and pushed down PW-3 from the  verandah and went along with his parents who came there hearing the hue  and cry.  

       PW-1 lodged the first information report at the Kannamali Police  Station on 2.10.1992 and a case was registered against the accused under  Sections 448 and 354 IPC and Section 3 (1)(xi) of the Act. The C.I. of   Palluruthy took up the investigation and laid the charge sheet against  the accused after completing the investigation.  

       During trial, nine witnesses were examined to further the  prosecution version. One witness was examined to substantiate the plea  of false implication raised by the accused. On consideration of the  evidence on record, learned Sessions Judge, Ernakulam found the accused  guilty and convicted him as aforesaid. According to learned Sessions  Judge the offence punishable under Section 3 (1) (xi) of the Act is an  aggravated form of an offence punishable under Section 354 IPC and,  therefore, no separate sentence for the latter offence is called for.  Appeal before the Kerala High Court did not bring in any relief to the  appellant.  

       In support of the appeal, Mr. K. Sukumaran, learned senior counsel

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 6  

submitted that the evidence on record clearly established that there was  false implication. According to him, PW-3, the brother of PW-1 outraged  modesty of the appellant’s sister after trespassing into their house on  27.9.1992. The sister of the accused was examined as DW-1. She is an  unmarried girl and hence the family members counselled her not to make  any complaint about the incident to avoid publicity. Apprehending legal  action against PW-3 a false case was made with the active support of a  communal organisation against the appellant.  

The prosecution version is that at about 2.00 p.m. on the date of  occurrence i.e. 1.10.1992 accused entered into the kitchen of PW-1 and  caught hold of her hands and tried to outrage her modesty. She is a  married woman with children. The information was lodged at police  station on the next date.  This itself shows that there is unexplained  delay in lodging the FIR and as the incident involving PW-3  took place  on 27.9.1992, as a counter blast a false case was instituted.  Additionally, it was submitted that the conviction under Section  3(1)(xi) of the Act is clearly unsustainable and learned Sessions Judge  had no jurisdiction to try the offence.  

       Residually, it is submitted that the incident took place more than  a decade back and the appellant has suffered custodial sentence for  nearly 3 months and, therefore, after this long passage of time it would  not be proper to send the accused back to custody.  

       We shall first deal with the plea about false implication. It is  seen that though there were some delay in lodging the FIR, it is but  natural in a traditional bound society to avoid embarrassment which is  inevitable when reputation of a woman is concerned. Delay in every case  cannot be a ground to arouse suspicion. It can only be so when the delay  is unexplained. In the instant case the delay has been properly  explained. Further, PW-2 is an independent witness and a neighbour of  both the accused appellant and PW-1.  There is no reason as to why he  would falsely implicate the appellant. A charge under Section 354 is one  which is very easy to make and is very difficult to rebut.  It is not  that art of enmity false implications are made. It would however be  unusual in a conservation society that a woman would be used as a pawn  to wreck vengeance. When a plea is taken about false implication, Courts  have a duty to make deeper scrutiny of the evidence and decide  acceptability or otherwise of the accusations. In the instant case, both  the trial Court and the High Court have done that. There is no scope for  taking a different view.  

       In order to constitute the offence under Section 354 mere  knowledge that the modesty of a woman  is likely to be outraged is  sufficient without any deliberate intention having such outraged alone  for its object. There is no abstract conception of modesty that can  apply to all cases. (See State of Punjab v. Major Singh (AIR 1967 SC  63). A careful approach has to be adopted by the Court while dealing  with a case alleging outraged of modesty. The essential ingredients of  the offence under Section 354 IPC are as under:

(i)     that the person assaulted must be a woman; (ii)    that the accused must have used criminal force on her,  and  (iii)that the criminal force must have been used on the  woman intending thereby to outrage her modesty.  

Intention is not the sole criteria of the offence punishable under  Section 354 IPC, and it can be committed by a person assaulting or using  criminal force to any woman, if he knows that by such act the modesty of  the woman is likely to be affected. Knowledge and intention are  essentially things of the mind and cannot be demonstrated like physical  objects. The existence of intention or knowledge has to be culled out  from various circumstances in which and upon whom the alleged offence is

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 6  

alleged to have been committed. A victim of molestation and indignation  is in the same position as an injured witness and her witness should  receive same weight. In the instant case after careful consideration of  the evidence, the trial Court and the High Court have found the accused  guilty. As rightly observed by the Courts below Section 3 (1)(xi) of the  Act which deals with assaults or use of force on any woman belonging to  scheduled Caste or Scheduled Tribe with intent to or dishonour or  outrage her modesty is an aggravated form of the offence under Section  354 IPC. The only difference between Section 3 (1)(xi) and Section 354  is essentially the caste or the tribe to which the victim belongs. If  she belongs to Scheduled Caste or Scheduled Tribe, Section 3 (1)(xi)  applies. The other difference is that in Section 3 (1)(xi) dishonour of  such victim is also made an offence.   Section 448 provides for  punishment relating to house trespass. In order to sustain the  conviction under Section 448 IPC it must be found that the intention of  the accused was to commit an offence or to intimidate, insult or annoy   the complainant.  There must be unlawful entry and there must be proof  of one or other of the intentions mentioned in Section 441 IPC. In the  case at hand evidence clearly establishes the commission of offence  punishable under Section 448.  

That bring us to the most vital question as to legality of the  trial involving offence punishable under Section 3(1)(xi) of the Act.

       Pristine question to consider is whether the Special Judge could  take cognizance of the offence straight away without the case being  committed to him. If the Special court is a Court of Session, the  interdict contained in Section 193 of the Code of Criminal Procedure,  1973 (for short the ’Code’) would stand in the way. It reads thus:         "193. Cognizance of offences by Courts of  Session- Except as otherwise expressly provided by  this Code or by any other law for the time being in  force, no Court of Session shall take cognizance of  any offence as a court of original jurisdiction  unless the case has been committed to it by a  Magistrate under this Code."  

       So the first aspect to be considered is whether the Special Court  is a Court of Session. Chapter II of the Code deals with "Constitution  of Criminal Courts and Offices". Section which falls thereunder says  that :         "there shall be, in every State, the following  classes of criminal courts, namely:

       (i) Courts of Sessions;"

       The other classes of criminal courts enumerated thereunder are not  relevant in this case and need not be extracted.  

       Section 14 of the Act Says that:         "for the purpose of providing for speedy trial,  the State Government shall, with the concurrence of  the Chief Justice of the High Court, by notification  in the Official Gazette, specify for each district a  Court of Session to be a Special Court to try the  offences under this Act."

       So it is for trial of the offences under the Act that a particular  Court of Session in each district is sought to be specified as a Special  Court. Though the word ’trial’ is not defined either in the Code or in  the Act it is clearly distinguishable from inquiry. The word ’inquiry’  is defined in Section 2(g) of the Code as ’every inquiry, other than a  trial, conducted under this Code by a Magistrate or court’.  So the  trial is distinct from inquiry and inquiry must always be a forerunner  to the trial. The Act contemplates only the trial to be conducted by the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 6  

Special Court. The added reason for specifying a Court of Session as a  Special Court is to ensure speed for such trial. "Special Court" is  defined in the Act as "a Court of Session specified as a Special Court  in Section 14" (vide Section 2(1)(d).

       Thus the Court of Session is specified to conduct a trial and no  other court can conduct the trial of offences under the Act. Why did  Parliament provide that only a Court of Session can be specified as a  Special Court? Evidently the legislature wanted the Special Court to be  a Court of Session. Hence the particular Court of Session, even after  being specified as a Special Court, would continue to be essentially a  Court of Session and designation of it as a Special Court would not  denude it of its character or even powers as a Court of Session. The  trial in such a Court can be conducted only in the manner provided in  Chapter XVIII of the Code which contains a fascicules of provisions for  ’trial before a Court of Session".  

       Section 193 of the Code has to be understood in the aforesaid  backdrop. The Section imposes an interdict on all Courts of Session  against taking cognizance of any offence as a Court of original  jurisdiction. It can take cognizance only if ’the case has been  committed to it by a Magistrate’, as provided in the Code. Two segments  have been indicated in Section 193 as exceptions to the aforesaid  interdict. One is, when the Code itself has provided differently in  express language regarding taking of cognizance, and the second is when  any other law has provided differently in express language regarding  taking cognizance of offences under such law. The word ’expressly’ which  is employed in Section 193 denoting those exceptions is indicative of  the legislative mandate that a Court of Session can depart from the  interdict contained in the Section only if it is provided differently in  clear and unambiguous terms. In other words, unless it is positively and  specifically provided differently no Court of Session can take  cognizance of any offence directly, without the case being committed to  it by a Magistrate.  

       Neither in the Code nor in the Act is there any provision  whatsoever, not even by implication, that the specified Court of Session  (Special Court) can take cognizance of the offence under the Act as a  Court of original jurisdiction without the case being committed to it by  a Magistrate. If that be so, there is no reason to think that the  charge-sheet or a complaint can straight away be filed before such  Special Court for offences under the Act. It can be discerned from the  hierarchical settings of criminal courts that the Court of Session is  given a superior and special status. Hence we think that the legislature  would have thoughtfully relieved the Court of Session from the work of  performing all the preliminary formalities which Magistrates have to do  until the case is committed to the Court of Session.  

       A reading of the concerned provisions makes it clear that subject  to the provisions in other enactments all offences under other laws  shall also be investigated, inquired into, tried and otherwise dealt  with under the provisions of the Code. This means that if another  enactment contains any provision which is contrary to the provisions of  the Code, such other provision would apply in place of the particular  provision of the Code. If there is no such contrary provision in other  laws, then provisions of the Code would apply to the matters covered  thereby.  This aspect has been emphasized by a Constitution Bench of  this Court in para 16 of the decision in A.R. Antulay v. Ramdas Sriniwas  Nayak (1984 (2) SCC 500).  It reads  thus"

       "Section 4(2) provides for offences under other  law which may be investigated, inquired into, tried  and otherwise dealt with according to the provisions  of the Code of Criminal Procedure but subject to any  enactment for the time being in force regulating the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 6  

manner or place of investigation, inquiring into,  trying or otherwise dealing with such offences. In  the absence of a specific provision made in the  statute indicating that offences will have to be  investigated, inquired into, tried and otherwise  dealt with according to that statute, the same will  have to be investigated, inquired into, tried and  otherwise dealt with according to the Code of  Criminal Procedure. In other words, Code of Criminal  Procedure is the parent statute which provides for  investigation, inquiring into and trial of cases by  criminal courts or various designations."

       Section 5 of the Code  cannot be brought in aid for supporting the  view that the Court of Session specified under the Act obviate the  interdict contained in Section 193 of the Code so long as there is no  provision in the Act empowering the Special Court to take cognizance of  the offence as a Court of original jurisdiction. Section 5 of the Code  reads thus:

       "5.- Saving- Nothing contained in this Code  shall, in the absence of a special provision to the  contrary, affect any special or local law for the  time being in force, or any special jurisdiction or  power conferred, or any special form of procedure  prescribed, by any other law for the time being in  force."

       This Court in Directorate of Enforcement v. Deepak Mahajan (1994  (3) SCC 440) on a reading of Section 5 in juxtaposition with Section  4(2) of the Code, held as follows:                 "It only relates to the extent of  application of the Code in the matter of territorial  and other jurisdiction but does not nullify the  effect of Section 4(2). In short, the provisions of  this Code would be applicable to the extent in the  absence of any contrary provision in the special Act  or any special provision excluding the jurisdiction  or applicability of the Code".

       Hence, we have no doubt that a Special Court under this Act is  essentially a Court of Session and it can take cognizance of the offence  when the case is committed to it by the Magistrate in accordance with  the provisions of the Code. In other words, a complaint or a charge- sheet cannot straight away be laid down before the Special Court under  the Act.        We are re-iterating the view taken by this Court in Gangula  Ashok and Anr. v. State of A.P. (2000 (2) SCC 504) in above terms with  which we are in respectful agreement. The Sessions Court in the case at  hand, undisputedly has acted as one of original jurisdiction, and the  requirements of Section 193 of the Code were not met.    

The inevitable conclusion is that the learned Sessions Judge, as  the undisputed factual position goes to show,  could not have convicted  the appellant for the offence relatable to Section 3 (1) (xi) of the Act  in the background of legal position noted supra. That is accordingly set  aside. However, for the offence under Sections 354 and 448 IPC,  custodial sentence for the period already undergone which as the records  reveal is about three months, would meet the ends of justice considering  the background facts and the special features of the case.  The appeal  is accordingly disposed of.  

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 6