Chargesheet against Brij Bhushan filed: What charges is the WFI chief facing?

Section 354: What does the law say?

The WFI chief and its assistant secretary have been charged under Section 354, which makes outraging the modesty of a woman a punishable offence. This section originally read: “Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.”

With the passage of the Criminal Law (Amendment) Act, 2013, Section 354 was amended to make the punishment more stringent, and the sentence was changed to not less than one year and up to five years.

The offence is cognizable (which means the police can arrest without a warrant), non-bailable (which means that bail is not a right of the accused and is granted at the discretion of the judge), and can be tried by any magistrate.

The words “assault” and “criminal force” (used in the Section) are defined in Sections 351 and 350 of the IPC, respectively. Section 351 says that whoever “makes any gesture”, or “preparation intending or knowing” that it’s likely to cause any person present to apprehend that he is “about to use criminal force to that person”, commits an assault. Meanwhile, Section 350 says that criminal force is said to be used when someone “intentionally uses force” on “any person”, without their consent, to commit any offence or uses force intending or knowing that it’s likely to cause “injury, fear or annoyance to the person” on whom it is used.

Pertinently, ‘intention’ and ‘knowledge’ are vital ingredients for the alleged act to fall under the purview of IPC Sections 354, 351, and 350.

The IPC does not define anywhere what constitutes an outrage to female modesty. However, the top court noted in its 2007 ruling in ‘Ramkripal vs. State of Madhya Pradesh” that the “essence of a woman’s modesty is her sex”. The court also gave examples such as the act of pulling a woman, removing her saree, or requesting sex, knowing her modesty might be outraged, as sufficient to fall under this section, even without any deliberate intention.

The possible punishment under Section 354 ranges from a jail term of up to five years or fine or both.

Section 354A: What does the law say?

Singh and Tomar have also been accused of sexually harassing the wrestlers under Section 354A of the IPC, which entails “physical contact and advances involving unwelcome and explicit sexual overtures”; or demanding or requesting sexual favours; or showing pornography against a woman’s will, or making sexually coloured remarks.

In 2013, the section was amended to say that anyone who sexually harasses a woman by unwelcome physical contact, advances, a demand or request for sexual favours, or showing her pornography can face up to three years imprisonment, a fine, or both. For those making sexually coloured remarks against women, the punishment in this section could be imprisonment for up to a year, a fine, or both.

The offences under Section 354A are cognizable but bailable.

Besides this, Singh has separately been accused of stalking under Section 354D IPC while Tomar is accused of criminal intimidation and abetment of an offence under Sections 506 and 109.

What is Section 354D IPC?

Before 2012, laws in India had no provision for punitive punishment in cases of stalking. It was only after the December 16, 2012 gangrape and murder case that stalking was made a “bailable offence.”

Following this, the Criminal Law (Amendment) Act, 2013, was passed, making stalking a punishable offence under Section 354D of the IPC, with imprisonment of up to three years and a possible fine on conviction for first-time offenders. However, a second or subsequent conviction can result in up to five years of imprisonment along with a fine.

Section 354D defines stalking by a man who “follows a woman and contacts, or attempts to contact” her “to foster personal interaction repeatedly despite a clear indication of disinterest” by her. Additionally, it extends the meaning of “stalking” to include monitoring “the use by a woman of the internet, email or any other form of electronic communication.”

However, an exemption to this section can be claimed if a man was stalking to prevent or detect crime and was “entrusted with the responsibility of prevention and detection of crime by the state.” Similarly, if the stalking was done “under any law or to comply with any condition or requirement imposed by any person under any law” or was justified in the particular circumstances as reasonable, the man will not be charged with this offence.

A major lacuna found in Section 354D is that the first offence is “bailable”, implying the accused need not be produced before the court to seek bail and can walk to freedom from the police station itself.

The Justice Verma Committee, set up in the aftermath of the December 2012 case, had recommended that stalking be introduced as a non-bailable offence with one to three years in jail as punishment. However, facing opposition from several parties, the Bill to make Section 354D a non-bailable offence was eventually modified to say that the first offence of stalking would be bailable while the subsequent offence would be “non-bailable” with an increased punishment.

What do the individual charges against Tomar mean?

Tomar has separately been charged with criminal intimidation and abetment of an offence under Sections 506 and 109 of the IPC.

Section 506 entails punishment for criminal intimidation, which can extend to two years, a fine, or both.

However, it is Section 503 that defines the term “criminal intimidation” as threatening another person with “any injury to his person, reputation, or property, or to the person or reputation of any one in whom that person is interested”, intending to cause him alarm to make him do or not do any act as a means of avoiding the “execution of such threat.”

Moreover, Section 506 says that if a person threatens someone else to cause “death or grievous hurt” or “destruction of any property by fire”, or an “offence punishable with death or life imprisonment or imprisonment up to 7 years,” or “impute unchastity” or adultery “to a woman,” they will face up to 7 years imprisonment, a fine, or both.

Notably, this is a non-cognizable and bailable offence, meaning arrest requires a warrant, and bail can be granted.

Tomar has also been charged with abetment of an offence under Section 109 of the IPC, which says that “whoever abets any offence shall, if the act abetted is committed in consequence of the abetment, and no express provision is made by this Code for the punishment of such abetment, be punished with the punishment provided for the offence.”

Under Section 107 of the IPC, “abetment of a thing” has been defined as instigating a person to do a thing, engaging with one or more persons in a conspiracy to do a thing, or intentionally aiding “by any act or illegal omission, the doing of that thing.” An example of this is if A offers a bribe to a public servant, B, as a reward for him doing some favour for him in the course of his duty, and B accepts that bribe, then A has abetted the offence of bribing a public official.

Whether this offence is cognizable, bailable, and its overall punishment is determined by the offence for which one stands accused of abetment.