RD Bajaj v KPS Gill| Lex Peeps

Case Number

S.L.P (Cr.) No. 1361 of 1989

CRIMINAL APPEAL NO. 1184 OF 1995

Equivalent Citation

1996 AIR 309, 1995 SCC (6) 194

Decided On

12 October 1995

Relevant Act

Sections 341, 342, 352, 354, and 509 of the Indian Penal Code

Sections 123/124 of the Evidence Act

Section 210, 482of Code of Criminal Procedure

Abstract

RD Bajaj V. K.P.S. Gill is a well known “Butt Slapping Case” and was one of the most criticized and recognized cases. Mrs. Rupan Deol Bajaj, an officer of the Indian Administrative Services (I.A.S.) member of the Punjab Cadre, employed as the Special Secretary Finance, complained with the Inspector General of Police, Chandigarh Union Territory. The complaint was alleging the commission of offenses under Sections 341, 342, 352, 354, and 509 of the Indian Penal Code by Mr. K.P.S. Gill, the Director-General of Police, Punjab, towards her on 18 July 1988 at a dinner party. The last verdict came in 2005, which ultimately reduce the punishment to probation. An opinion can be formed from the case about the lenient and humane judicial procedure towards society’s high elites.

Brief Facts and Procedural Facts

Around 10 PM on the said night, Dr. Chutani and Mr. Gill walked across the garden and sat within the ladies’ circle.
Bajaj, who was having a conversation with Mrs. Bijlani and Mrs. Bhandari at the time, was requested by Mr. Gill to take a seat next to him as he wanted to speak to her about something.
Responding to his such request when Mrs. Bajaj went to sit in a chair next to him, Mr. Gill suddenly pulled that chair close to his chair.
Bajaj was a bit stunned when she put that chair at its original place and was about to sit down, and Mr. Gill again pulled his chair closer.
Realising something was wrong, she immediately left the place and went back to sit with the women.
After about 10 minutes, Shri Gill came and stood in front of her. He was so close that his legs were about 4 inches from her knees.
He then, by action with the crook of his finger, asked her to “get up immediately” and come along with him.
When she strongly objected to his behavior and asked him to go away from there, he repeated his last command that shocked the ladies present.
Being apprehensive and frightened, she tried to leave the place but could not as he had blocked her way.
Finding no other alternative when she drew her chair back and turned backward, he slapped her on the posterior in the full presence of the ladies and guests.

This analysis is written by Pooja Lakshmi (l19blb076@bennett.edu.in), studying BBA-LLB at Bennett University, Greater Noida. Handling the complaint filed by Mrs. Bajaj as the First Information Report (F.I.R.), a case was recorded by the Central Police Station, Chandigarh, under Section 17, and an inspection was taken up. After that, her husband, Mr. B.R. Bajaj, who also happens to be a senior I.A.S. officer of the Punjab Cadre, on 22 November 1988, lodged a complaint in the Court of the Chief Judicial Magistrate for the same wrongdoing. Alleging, among the other things, Mr. Gill is a high-ranking police officer. The Chandigarh Police had neither arrested him in association with the police’s case on his wife’s complaint nor conducted an investigation fairly and impartially. And apprehending that the police would decide the investigation by treating the case as untraced; he was filing the complaint.

On receipt of the complaint, the Chief Judicial Magistrate transferred it to a Judicial Magistrate for disposal. Later insight into the fact that the Police’s investigation was ongoing about equivalent offenses called for a report from the Investigating Officer under Section 210 of the Code of Criminal Procedure. Within the meantime – on 16 December 1988 to be precise – Mr. Gill moved to the high court by filing a petition under Section 482 Cr. P.C. for quashing the F.I.R. and the complaint. On the petition, an interim order was passed, staying the investigation into the F.I.R lodged by Mrs. Bajaj, but not the proceedings initiated on Mr. Bajaj’s complaint.

Resultantly, the learned Judicial Magistrate proceeded with the complaint case and examined the complainant and, therefore, the witnesses produced by him. After that, Mr. Bajaj moved an application before the learned Magistrate for summoning Mr. Y.S. Ratra, an I.A.S. Officer of the govt of Punjab, and Mr. J.F. Rebeiro, Adviser to the Governor of Punjab for being examined as witnesses on his behalf and for producing certain documents, which was allowed. Rather than appearing personally, the above two Officers sought exemption from appearance. Therefore, after producing the documents, the district attorney filed an application claiming privilege under Sections 123/124 of the Evidence Act in respect of them.

The learned Magistrate refused the prayer of the above two officers and also rejected, after going through the documents, the claim of privilege, believing that the documents did not concern the affairs of the State.

Assailing the order of the learned Magistrate rejecting the claim of privilege, the State of Punjab filed a Criminal Revision Petition, allowed by the High Court by its order dated 24 January 1989. The petition earlier filed by Mr. Gill under Section 482 Cr. P.C. came up for hearing before the High Court and was allowed by its order dated 29 May 1989, and both the F.I.R. and the complaint were canceled. The above two orders of the High Court are under challenge in these appeals at the instance of Mr. and Mrs. Bajaj.

Issue before the court

Whether the allegations constitute any of the offenses mentioned?

Facts of the Case

1. Rupal Deol Bajaj was an I.A.S. Officer belonging to Punjab Cadre. She lodged an FlR against Mr.KPS Gill, the Director-General of Police u/s 341,342.352,354 and 509 of I.P.C.

2. On the said date, in the party of K.P.S. Gill, the accused, around 10.pm, walked across a group of ladies and joined them. After some time, some of the ladies started leaving and going into the house. The victim did not notice that Mr.KPS Gill was misbehaving with them.

3. K.P.S. Gill then called the victim to talk about something. On realization by the victim about the awkward behavior of Gill, she avoided going.

4. After a while, Gill reached out to her amongst other ladies who were sitting together. He offensively ordered her to get up and come along. She resisted and turned back and started leaving when he slapped her back.

Ratio of Case

While considering whether allegations constitute any offenses for which case was registered, the court first looked at S. 354 and S. 509, I.P.C., that relates to women’s modesty.
Since the word modesty had not been defined in the code, they considered various dictionaries such as the Shorter Oxford English Dictionary (third edition), Webster’s Third New International Dictionary of the English language Oxford English dictionary (1933 Edition).
The division bench also considered the judgment given in the State of Punjab v. Major Singh, where it held that when an act was done to, or in the presence of a woman is suggestive of sex, according to the common notions of humankind that must fall within the mischief of Section 354. The other learned Judge citing his view concerning the case referred above, stated that the essence of a woman’s modesty is her sex. From her very birth, she possesses humility, which is the attribute of her sex.

When the Hon’ble Court applied the test in the present case, keeping in view the total fact situation, it cannot but be held that Mr. Gill’s alleged act in slapping Mrs. Bajaj on her posterior amounted to `outraging of her modesty.’ Therefore, it was not only an insult to the usual sense of feminine decency but also an affront to the dignity of the lady – “sexual overtones” or not, notwithstanding.

It was however strenuously urged by Mr. Tulsi that even if it was assumed that Mr. Gill had outraged the modesty of Mrs. Bajaj, still no offense under Section 354 IPC could be said to have been committed by him for the other ingredient of the offense, namely the intension to do so was lacking. He urged that the culpable intention of the offender in committing the act is the crux of the matter and not the consequences thereof.

This court took the view that it is undoubtedly correct that if intention or knowledge is one of the ingredients of any offense, it has to be proved like other ingredients for convicting a person. However, it is also equally valid that those ingredients being states of mind may not be verified by direct evidence and may have to be inferred from the present circumstances of a given case.

In the instant case, we are only at the incipient stage that we have to ascertain, only prima facie, whether Mr. Gill by slapping Mrs. Bajaj on her posterior, in the background detailed by her in the F.I.R., intended to outrage or knew it to be likely that he would thereby outrage her modesty, which is one of the essential ingredients of Section 354, I.P.C. The sequence of events that we have detailed earlier indicates that the slapping was the finale to Mr. Gill’s earlier overtures, which, considered together, persuade us to hold that he had the requisite culpable intention.

The court then considered the applicability of S. 341,342 and 352 of IPC. The court held that nothing in the FIR or the facts of the case pointed towards a situation of Wrongful restraint or Wrongful confinement. Mr. Gill’s mere act of standing in front of Mrs. Bajaj cannot be said to be wrongful restraint.
The court next considered the applicability of S.95, IPC, which talks about the act of causing slight harm. After considering the principles laid down by the court in Veeda Menezes v. Yusuf Khan, the court observed that S. 95 of the IPC has no application in the present case.

Talking about the High Court’s decision, the court held that the settled principle of law that at the stage of quashing an FIR or complaint, the High Court is not justified in embarking upon an inquiry as to the probability, reliability, or genuineness of the allegations made therein, an FIR or a complaint may be quashed if the allegations made therein are so absurd and inherently improbable that no prudent person can ever conclude that there is sufficient ground for proceeding against the accused but the High Court has not recorded such a finding, obviously because on the allegations in the FIR. It was not possible to do so. The Supreme Court held that the High Court had committed a gross error of law in quashing the FIR and the complaint. Accordingly, it set aside the impugned judgment and dismissed the petition filed by Mr. Gill in the High Court under Section 482 Cr.P.C.

Decision of the Court

Trial and sentencing. In 2005, the Supreme Court of India upheld the charges and conviction of K.P.S. Gill for the offense. He was spared from undergoing the three-month jail sentence as it was converted into probation by Punjab and Haryana High Court.

Judgement

1. In 1998 the High Court of Punjab and Haryana booked Gill u/S 354, i.e., outraging the modesty of women and u/s 509, i.e., an act, word, or gesture intended to insult a lady.

2. Mr. Gill was sentenced for rigorous imprisonment for three months and simple imprisonment for two months along with a fine of Rs. 200000.

3. Appeals were made into the Supreme Court of India, wherein the punishment was turned into probation in 2005.

The court directed the learned Chief Judicial Magistrate, Chandigarh, to take cognizance upon the police report regarding the offenses under Sections 354 and 509 IPC and try the case himself as per law.

They made it abundantly clear that the learned Magistrate should not in any way be influenced by any of the observations made by them relating to the facts of the case as their task was confined to the question whether a `prima facie case’ to go to the trial was made out or not. In contrast, the learned Magistrate will have to dispose of the case solely based on the evidence to be adduced during the trial. Since both the offenses under Sections 354 and 509 IPC are trailable under Chapter XX of the Criminal Procedure Code, the court directed the learned Magistrate to dispose of the case as expeditiously as possible.

Comments

I.A.S. officer Rupan Deol Bajaj is delighted after 30 years. Her 17.5 year-long struggle to punish the powerful man who sexually harassed her is resonating in the stories flooding social media. As the #MeToo storm rages across the country, provoking anger and outrage, and also for the first time a creeping fear in the hearts of serial sexual predators who operated till now with carefree impunity, one woman can watch the developments with quiet satisfaction.

When Rupan Deol Bajaj called out the behavior of Mr. Gill, she stood all alone, threatened with death, slander, given punishment postings and Bajaj said a blighted career in an interview with The Wire

Rupan Deol Bajaj secured a conviction under the archaic Sections 354 and 509 of the Indian Penal Code; the two sections under which no one had ever filed a case since 1860 when the British first drafted the I.P.C.

They are an affront to the dignity and honour of a woman and can traumatize her for life. Actions that fall under Sections 354 and 509 of the IPC are universal to the extent that almost all women experience it five or six times in their lives. Section 509 deals with words, gestures, or actions intended to insult a woman’s modesty, and section 354 deals with assault or criminal force to outrage the modesty of a woman. These are a set of provisions different from physical assault, but which deal with crimes only against women as there is an element of modesty involved. All those men who think that unwanted lewd gestures or talking dirty are not offenses need to worry.

It took her another seven years to get the direction from SC to prosecute Gill. Even Rupan Deol Bajaj’s highly educated mother dissuaded her from registering an FIR, and she was asked to cry over it privately and move on with the guilt and fear.

Rupan Deol Bajaj was an empowered woman, but the system and society were conspiring to disempower her. It is hoped that today’s girls get justice as fast as possible.

Firstly, the court has defined ‘modesty’ for the first time in this case as it applies to these two sections of IPC. Secondly, the court has laid down that to prove such matters, one witness is enough, and the victim herself is the best witness, as long as she is truthful. Thirdly, in every crime, the prosecution has to prove the intention of the accused. Nevertheless, here it was held that there is no need to prove intention, but just his knowledge of having acted indecently is sufficient to prosecute a person. Fourthly, the court set a time limit of six months to complete the trial, to ensure that the victim is not deliberately tired out in long-drawn litigation. The difference now is that none of these women need to take the men to court. They dare to speak on social media is enough for everyone to believe them. It is the most critical validation of the truth. If the accused man goes to court, then the case precedent gives them ample ammunition to fight it there.

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