TMI Blog2011 (5) TMI 1094X X X X Extracts X X X X X X X X Extracts X X X X ..... rty No. XVI/72, Joshi Road, Karol Bagh and raised new construction. He opened two windows at the first floor of the construction. The windows overlooked the courtyard of the property of the petitioner. Petitioner protested against opening of the windows and on his request, respondent No. 2 converted one of those windows into a ventilator. The petitioner was not satisfied and he insisted on closing of the window as well as the ventilator. When the respondents refused to oblige, petitioner filed a criminal complaint under Section 509/109 IPC. 3. Learned M.M., in exercise of his powers under Section 156(3) CrPC directed the local police station to register and investigate the case. Accordingly, FIR No. 465/2006 was registered at Police Station D.B.Gupta Road. Pursuant to the investigation, charge sheet was filed against the respondents No. 2 to 4. Learned M.M. directed the complaint filed by the petitioner to be clubbed with the charge sheet and took cognizance of the offence. 4. Learned M.M. vide his order dated 25th November, 2008 discharged the respondents No. 2 to 4, observing that no case under Sections 509/109 IPC was made out. Feeling aggrieved, the petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed, intention to outrage the modesty of the women or knowledge that the act of the accused would result in outraging her modesty is the gravamen of the offence. 34. 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 is an attribute associated with female human beings as a class. It is a virtue which attaches to a female owing to her sex . 8. On reading of the above, it is obvious that intention to outrage the modesty of a woman is an essential ingredient of offence under Section 354 IPC. Language of Section 509 IPC, which also deals with the offence of insulting the modesty of a woman is also similar to Section 354 IPC. 9. Section 509, IPC reads thus: 509. Word, gesture or act intended to insult the modesty of a woman-- 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, of that such gesture or object shall be seen, by such woman, or intrudes upon the privacy of su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an enquiry conducted in a complaint under Sections 120A, 120B, 405, 406, 415, 420, 463, 465 468 IPC, learned Metropolitan Magistrate took cognizance of the complaint and issued process under Section 204 CrPC against the accused persons for offences confined to Section 420 read with Section 120B IPC. Being aggrieved by the issue of process, some of the accused moved High Court and the High Court directed them to move the Trial Court against the summoning order. Pursuant to the said order of the High Court, accused persons moved application under Section 203 CrPC on 10.3.1993 and the learned Magistrate, vide order dated 28.1.1995 recalled the order issuing summons after hearing the parties. The aforesaid order to recall summons issued under Section 204 CrPC was challenged in High Court and the High Court allowed the revision petition holding that the Trial Court erred in recalling the consequential summons issued because the said court did not have power to review its own order. Accused persons preferred SLP against said order and the Supreme Court, while upholding the order of the High Court, inter alia, observed thus: 12. Will examine the above findings of this Court in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Magistrate and if he finds no sufficient ground for proceeding he can dismiss the complaint by recording briefly the reasons for doing also as contemplated under section 203 of the Code. 15. But after taking cognizance of the complaint and examining the complainant and the witnesses if he is satisfied that there is sufficient ground to proceed with the complaint he can issue process by way of summons under section 204 of the Code. Therefore what is necessary or a condition precedent for issuing process under section 204 is the satisfaction of the Magistrate either by examination of the complainant and the witnesses or by the inquiry contemplated under section 202 that there is sufficient ground for proceeding with the complaint hence issue the process under section 204 of the Code. In none of these stages the Code has provided for hearing the summoned accused, for obvious reasons because this is only a preliminary stage and the stage of hearing of the accused would only arise at a subsequent stage provided for in the latter provision in the Code. It is true as held by this Court in Mathew's case before issuance of summons the Magistrate should be satisfied that there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Criminal Procedure deals with the stage subsequent to issue of process under Section 204 CrPC in a summons trial case. This section casts a duty upon the Magistrate to state to the accused person the particulars of offence allegedly committed by him and ask him whether he pleads guilty. This can be done by the Magistrate only if the charge sheet/complaint/preliminary evidence recorded during enquiry disclose commission of a punishable offence. If the charge sheet/complaint does not make out a triable offence, how can a Magistrate state the particulars of non-existing offence for which the accused is to be tried. Therefore, it is inherent in Section 251 of the Code of Criminal Procedure that when an accused appears before the Trial Court pursuant to summons issued under Section 204 CrPC in a summons trial case, it is bounden duty of the Trial Court to carefully go through the allegations made in the charge sheet/complaint and consider the evidence to come to a conclusion whether or not, commission of any offence is disclosed and if the answer is in the affirmative, the Magistrate shall explain the substance of the accusation to the accused and ask him whether he pleads guilty, o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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