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CASE NO.: Appeal (crl.)  1032 of 1998

PETITIONER: Kanwar Pal Singh Gill                                            

RESPONDENT: State (Admn., U.T. Chandigarh) Thro’  Secy., & Anr.      

DATE OF JUDGMENT: 27/07/2005

BENCH: K.G. Balakrishnan & B.N. Srikrishna

JUDGMENT: J U D G M E N T WITH

CRIMINAL APPEAL NO. 430 OF 1999

Mrs. Rupan Deol Bajaj, I.A.S.,                          .. Appellant

Vs.

Kanwar Pal Singh Gill                                           .. Respondent

K.G. BALAKRISHNAN, J.

       The appellant in Criminal Appeal No. 1032 of 1998 was found  guilty of the offence punishable under Sections 354 and 509 of the  Indian Penal  Code.   He challenges his conviction and sentence in this  appeal.     Criminal  Appeal No. 430 of 1999 has been preferred by the  complainant  in that case and she prays that the punishment imposed  on the accused should be enhanced.      Both  the appeals are heard   together and disposed of by this common judgment.

       On 18.7.1988, a senior IAS  officer, holding the post of Financial  Commissioner and Secretary to the Government of Punjab, invited  some of the IAS officers and IPS officer working at Chandigarh,  for a  dinner at 8.30 P.M. at his residence in Sector 16 of Chandigarh.     Apart from the IAS and IPS  officers,   there were a few advocates,  including  the Advocate General of the State of Punjab  and also some  journalists and press correspondents working with some leading  newspapers.   The guests assembled around 8.30 P.M.     Ladies  were  sitting in  a semi-circle slightly away from the male guests.     As per  the allegation in the complaint preferred by the husband of the  prosecutrix,  the accused,  who was then the Director General of Police  of the State of Punjab, came and occupied a chair which was lying  vacant at the place where the ladies were sitting.    The accused then   called  out the prosecutrix  and asked her to  sit near him as he  wanted to talk to her about something.       When the prosecutrix  was  about to sit on the chair lying near the accused, the latter suddenly  pulled the chair close to  him and  it is alleged that the prosecutrix  felt  slightly embarrassed and  she managed to pull the chair back and sat  on it.   The accused again tried to pull the chair close to his chair  whereupon the prosecutrix got up from the chair and returned to her  original seat.     The further allegation is that about ten minutes later,  the accused came near the prosecutrix and asked her to come along  with him.   The prosecutrix strongly objected to his behaviour, but the  accused was not prepared to change his tone and tenor and again  he  asked the prosecutrix to accompany him.   The prosecutrix further

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alleged that she became frightened  as  the accused blocked her way  and  she tried to get away from the place whereupon the accused  slapped  on  the posterior of the prosecutrix and  the same was done  in the presence of other guests.  The prosecutrix then made a  complaint to the host and told   him that the  behaviour of the accused  was obnoxious and that he was not fit  for a decent company.   The  accused  was  then gently removed from the place.     The prosecutrix   made a complaint to the Joint Director, Intelligence Bureau,  who was   present there.    The prosecutrix narrated the incident to her husband  who  was  also  present  there.   On the  next day,  that is 19th July,  1988, the prosecutrix sought an appointment with the Chief  Secretary  and recounted the entire incident to him and requested him to take  suitable action against the accused.   The prosecutrix  met the  Advisor  to the Governor of Punjab and gave a full and detailed account of the  incident that had happened at the dinner party.    The prosecutrix   explained the incident to the then Secretary to the  Governor and also  met the Governor.   On 29th July, 1988, the petitioner gave a written  complaint to the police and a case was registered, but no further steps  were taken.   After about four months, the husband of the prosecutrix  filed a complaint before the Chief Judicial Magistrate, Chandigarh,  alleging commission of offence punishable under Sections 341, 342,  352, 354, 355 and 509  IPC.  Thereupon the accused preferred a  criminal revision under section 482 of the Cr.P.C. and the High Court  quashed the complaint as well as further proceedings pursuant to the  case registered by the  police.   The prosecutrix and her husband  jointly challenged the verdict of the High Court  before this court and  the  judgment of the High Court was set aside and the Chief Judicial  Magistrate was directed to take cognizance of the offence under  Sections 354 and 509 IPC.   The Chief Judicial Magistrate later framed  the charges and after a full-fledged trial the accused was found guilty  of the offence punishable under Section 354 and 509 IPC.  He was  sentenced to undergo imprisonment for a period of three months and  pay  a fine of Rs.500 for the offence under Section 354;  and for the  offence under Section  509 IPC,  punishment of simple imprisonment   for a period of two months and  a fine of Rs. 200/- were imposed on  the accused.    In the appeal preferred by the accused, the Sessions  Judge confirmed the conviction,  but altered the sentence and the  accused was directed to be released on probation  in lieu of custodial  sentence.   The fine was enhanced to Rs.50,000 with a further  direction to  pay half of it to the complainant.   The accused challenged  the same in the revision before the High Court.   The High Court did  not interfere with the conviction  of the accused under Section 354 and  509.   However, the fine was enhanced to Rs.2,00,000/- and the entire  amount was directed to be paid to the prosecutrix.    An amount of  Rs.25,000/- was directed to be paid as costs  by the accused.   The  judgment of the High Court is challenged by the accused  as well as  the  complainant.

       The accused-appellant in Criminal Appeal No. 1032/98 raised   many contentions before us.   The counsel for the appellant disputed  the correctness of the findings on various grounds,  and even the  factual findings entered by the court were seriously disputed.    It was  contended that no such  incident had  happened and this was a part of  a conspiracy to malign the appellant   who had to take so many  serious actions to control the activities of the militants which were at  its peak during that time.   It is alleged that the accused was able to  control the militant operations of the  terrorists and got   commendations from the Government and other administrators and  this was not liked by many top-ranking  bureaucrats and as part of the  conspiracy, the entire case was falsely  foisted on  him.   It was also  submitted by   the appellant’s counsel  that the  complaint itself was  filed after a  period of three months and the witnesses who were  examined were all interested witnesses and  most relevant witnesses  who were alleged to have witnessed the occurrence  were not  examined.    A pointed reference was also made to the non-

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examination of some of the witnesses cited by the  prosecution.   

 It is true that there was some delay in filing the complaint  before the Magistrate,  but that by itself was not sufficient to reject the  complaint put forward by the prosecutrix.  It is important to note that  she  recounted  the entire  incident  immediately  to the Chief   Secretary and other officers and raised objections and also sought for  stringent action against the accused.   When she failed in all these  attempts, she and her husband filed the criminal complaint before the  Chief Judicial Magistrate.    There is nothing to suggest that the  prosecutrix acted in connivance with some others and that she  hatched a conspiracy to malign the accused.   If the whole incident is  viewed in correct perspective,   it is clear  that the  behaviour of the  accused on the date of the incident was not consistent with  the high  standard expected of a top-ranking police officer.    The findings of the  various courts is to the effect that the accused gently slapped on the  posterior  of the prosecutrix  in the presence of some guests.    This   act on the part of the accused  would certainly constitute the  ingredient  of Section 354 IPC.    It is proved that the accused used  criminal  force with intent to outrage the modesty of the complainant   and that he knew fully well that gently slapping on the posterior of the  prosecutrix in the  presence of other guests would embarrass  her.    Knowledge can be attributed to the accused  that he   was  fully aware  that  touching  the body of the prosecutrix  at that place and time  would  amount to  outraging her modesty.    Had it been without any  culpable intention on the part of the accused, nobody would have  taken notice of the incident.    The prosecutrix  made such a hue and  cry immediately after the incident  and the reaction of the prosecutrix   is very much relevant to  take note of the whole incident.   The  accused being a police officer of the highest rank should have been   exceedingly careful and failure to do so  and  by  touching the body of  the complainant with culpable intention he committed the offence  punishable under Section 354 and 509 IPC.   In view of the findings of  fact  recorded  by  the two courts and  affirmed by the High Court in  revision,   the order of the High Court cannot be set aside on the mere  assertion by the accused that the whole incident was falsely foisted  on  him with ulterior motives.    Therefore, we find no merit in the appeal   preferred by the accused.   The appeal is dismissed accordingly.

       In the appeal preferred by the complainant,  learned senior  counsel Ms. Indira Jaising contended that crimes against women are   on the rise and the court should have dealt with the matter severely  and the accused should not have been released on probation.

       The incident happened in 1988.    Despite the accused holding a  high position in the state police, the  various courts found him guilty of  the offence punishable under Section  354 and 509 IPC and that by  itself is setting a model for others and would enhance the faith in the  judicial system.   The  accused  had completed the period of probation.   There was no occasion for any complaint  or violation of any of the  terms of the bond.     At this juncture, we do not think that it is just  and  proper  to resort to any other punishment.   In our view,  the    criminal appeal  No. 430 of 1999 preferred  by the complainant against  the judgment of the High Court  is without any substance and the  same is dismissed accordingly.  

       The counsel for the appellant in this appeal submitted that  the  complainant has no intention of withdrawing  Rs.2 lacs ordered to be  paid to her  by way of compensation and  that the amount may be  given to any women’s organization  engaged in doing service for the  cause of the women.    The amount may  be lying now in the court  deposit with the High Court of Punjab & Haryana.    We leave the  matter  to the Chief Justice of the High Court of Punjab & Haryana to  deal with the said compensation amount in an appropriate manner as  prayed for  by the complainant.   A copy of this judgment  shall be

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sent to the Registrar of the High Court of Punjab & Haryana.