How To Get Bail In Section 354 IPC Case?

The consequences of being implicated under Section 354 of the IPC in terms of assault or the use of force against a woman with the intent to dishonour her modesty imply severe legal and societal implications against the accused. Bail cannot be granted automatically as the offence is cognizable and non-bailable and needs strategic legal backing. The evolving nature of the existing law with the introduction of the Bharatiya Nyaya Sanhita (BNS) makes an understanding of the bail process and any possible deviations from the procedure imperative.

An Overview Of Section 354 IPC

Section 354 of the Indian Penal Code criminalizes assault or use of criminal force against a woman with the intent to outrage her modesty.

Understanding Section 354 IPC

Section 354 of the IPC entitled "Assault or criminal force to woman with intent to her modesty," and thereby necessarily defines criminalizing acts that violate a woman’s dignity and sense of decency. It embraces all such offences, which are any kind of physical or verbal harassment aimed at outraging the modesty of a woman. The law exists for the protection of women against unwelcome advances and rights given to them and for securing them from such activities vis-a-vis safety and personal integrity.

Legal Definition

Section 354 IPC states:
"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 shall not be less than one year but which may extend to five years, and shall also be liable to fine."

Key Elements Of Section 354 IPC

To establish an offence under Section 354, the prosecution must prove the following essential elements:

Presence Of Assault Or Criminal Force

• The act specifically concerns the application of physical force or an attempt to intimidate a woman.
• The force applied need not inflict any damage; it suffices when it instills into a woman fear, discomfort or unwelcome proximity.
• Even a threatening gesture or an attempt to touch inappropriately can constitute assault under this section.

Assault Must Be On A Woman

• This section specifically protects women, thus making gender an important element in the offence.
• The age of the victim, her relationship with the accused, or any previous contact between the two would not affect the application of this law.
• Even if it does not cause bodily harm, any act considered a violation of a woman’s dignity can be considered an offence.

Presence Of Intention And Knowledge

The accused must have acted with the intention or knowledge that their actions are likely to outrage the modesty of a woman.

Examples of acts that establish intent include:

• Unwelcome physical advances such as touching, grabbing, or inappropriate proximity.
• Offensive gestures or comments, including suggestive body language or lewd remarks.
• Verbally offensive words are intended to sexually harass or humiliate the victim.

Even if the accused claims their actions were a misunderstanding, the law considers whether a reasonable person would perceive the act as offensive.

Outraging The Modesty Of A Woman

The term "modesty" is not strictly defined in law but has been interpreted by courts as actions that violate a woman's sense of decency, dignity, and bodily autonomy.

Acts that constitute outraging modesty include:

• Attempting to disrobe (undress) a woman.
• Sexually suggestive physical conduct.
• Making sexually explicit remarks, stalking, or using force to intimidate a woman.

Punishment For The Offense

• Imprisonment: A minimum of 1 year, which may extend up to 5 years, depending on the severity of the act.
• Fine: A monetary penalty is imposed, the amount of which is determined by the court, considering the gravity of the offence and its impact on the victim.

Nature Of The Offense

• Cognizable: The police have the power to register an FIR against the accused and take the person into custody without consulting the court before arrest.
• Non-Bailable: Bail is not granted as a matter of course, and its grant is subject to the court's discretion because of the case's merits.
• Triable by a Magistrate: Cases under Section 354 IPC are typically tried by a Judicial Magistrate of First Class (JMFC).

Section 354 IPC Under The Bharatiya Nyaya Sanhita (BNS), 2023

The provisions relating to Section 354 IPC have now been incorporated under Section 74 BNS in the Bharatiya Nyaya Sanhita (BNS), 2023. While the core principles and punishments remain unchanged, the restructuring under BNS reflects an effort to modernize and streamline criminal law.

The transition to Section 74 BNS does not alter the cognizable and non-bailable nature of the offence, nor does it affect the essential elements for prosecution. But moving forward, as the IPC gets replaced, there might be changes to procedural aspects like appropriate standards for investigation, trial mechanisms, and bail considerations that may evolve based on judicial interpretations and enforcement practices.

Types Of Bail In Section 354 IPC Cases

Under Indian criminal law, offences punishable under Section 354 IPC (assault or use of criminal force against a woman with intent to outrage her modesty) are cognizable and non-bailable. This means the police can arrest the accused without prior approval from the court, and bail is not granted as a matter of right, but subject to judicial discretion.

Nature Of Bail In Section 354 IPC Cases

Non-Bailable Offence

Section 354 IPC is a non-bailable offence, bail is not a matter of right; the accused must apply for it through the court.

Judicial Discretion

The court considers various factors before granting bail, including:

• Nature of allegation.
• The seriousness of the allegation and the evidence that supports it.
• Criminal history of the accused.
• Threat to the victim or the witness.

Types Of Bail Available In Section 354 IPC Cases

Although bail is not an automatic right, there are various kinds of bail that an accused can seek at different stages of the case and judicial assessment.

Regular Bail

If a person has been arrested under Section 354 of the IPC, then he can apply for regular bail before the Magistrate or Sessions Court. On being granted, he will be released from custody after furnishing a bail bond with or without sureties.

Interim Bail

This is the bail that is issued for a short duration pending the final settlement of a bail hearing. It is temporary, meaning that it would only last till the completion of the last stage of the bail hearing.

Courts may grant interim bail when the regular or anticipatory bail application is pending or in urgent cases like medical emergencies.

Anticipatory Bail

Whenever a person apprehends arrest under Section 354 IPC, he can, in principle, file an anticipatory bail application under Section 438 CrPC. The Bharatiya Nagarik Suraksha Sanhita of 2023, replaces the CrPC that contained Sections 438 to Section 482 about anticipatory bail, before the arrest has been made.

If the accused is willing to take part in the investigation and doesn't pose a threat to the victim, the court can grant him protection from arrest.

However, anticipatory bail doesn't automatically mean the court will grant it in non-bailable offences; courts will carefully assess the nature of the allegations before deciding.

Impact of the Bharatiya Nyaya Sanhita (BNS), 2023

With the enactment of the Bharatiya Nyaya Sanhita (BNS), 2023, Section 354 IPC has now been incorporated as Section 74 BNS. However, the provision for bail remains unaltered, meaning the courts will continue exercising their discretion in granting bail as they did under the IPC.

Therefore, although the offences are non-bailable, anticipatory bail before arrest and the application for regular bail at or after the time of arrest become the primary legal options available to the accused.

How To Apply For Bail In IPC 354 Cases

Getting bail under Section 354 IPC (now Section 74 of BNS 2023) requires a proper legal strategy as the offence is cognizable and non-bailable. This means bail isn't a matter of right and depends on the discretion of the court to decide. The BNSS, 2023, which replaces the CrPC of 1973, incorporates how bail applications are to be processed.

Applying For Anticipatory Bail (Before Arrest)

The following are the steps to apply for anticipatory bail:

• Step 1: Draft the anticipatory bail application on well-reasoned and actionable grounds.
• Step 2: File it in the Sessions Court or the High Court with reasons for the apprehension of arrest and absence of prima facie evidence.
• Step 3: The court issues a notice to the prosecution and may call for a response before deciding on the bail plea.
• Step 4: The grounds on which the plea is evaluated by the court are the severity of the allegations, evidence against the accused, the possibility of misusing the provisions of law, or false implication, and if a potential threat is posed to the victim or influence on witnesses.
• Step 5: If the court grants anticipatory bail, the accused is protected from arrest, subject to conditions such as cooperating with the investigation, not leaving the country without permission, and not contacting the victim.
• Step 6: In the event that anticipatory bail is rejected, the accused can challenge the decision in the High Court or the Supreme Court.

Applying For Regular Bail (After Arrest)

The Steps To Apply For Regular Bail are as follows:

• Step 1: File the bail application with the appropriate Magistrate or Sessions Court, depending on the jurisdiction of the case.
• Step 2: The court will evaluate the bail application on the considerations such as the nature and gravity of the offence, the strength of the prosecution’s case evidence, the past criminal record of the accused, and the possibility of the accused fleeing or influencing witnesses.
• Step 3: In case bail is granted, the accused person must execute a bail bond and also adhere to other conditions such as appearing before the court as required, not contacting the victim or witnesses directly or indirectly, and not tampering with evidence.
• Step 4: If bail is denied, the accused can appeal before the High Court or, in extreme cases, the Supreme Court.

Applying For Interim Bail

Interim bail provides short-term relief, allowing an accused to stay out of custody while the court decides on regular or anticipatory bail. It is crucial in urgent situations like medical emergencies or pending hearings.

Steps To Apply For Interim Bail:

• Step 1: The accused must apply for interim bail along with the anticipatory or regular bail plea before the Sessions Court or High Court.
• Step 2: The court will be open to hearing the urgency of the appeal, such as medical grounds (requiring immediate treatment), family emergencies (death of a close relative, etc.), and pending decision on anticipatory or regular bail.
• Step 3: If granted, interim bail provides temporary protection for a specified period until the final bail order is issued.
• Step 4: The accused must fulfil any conditions imposed, such as surrendering before the court after the interim period is over.

 Bail Application Format For IPC 354

Conclusion

Section 354 IPC (now Section 74 BNS, 2023) is a serious cognizable and non-bailable offence. It is aimed at the protection of women from assault or criminal force intended to outrage their modesty. Bail is not a right and is subjected to the discretion of judges considering factors such as the seriousness of allegations, evidence, possible risks for the victim, and so on. The replacement of IPC and CrPC with BNS and BNSS has procedural aspects of bail applications. Thus, it becomes necessary to be legally aware.

For expert legal assistance in securing bail under Section 354 IPC, contact our bail lawyers for their best guidance and representation.

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FAQs 

Q1. Can I get bail in Section 354 IPC case?

Yes, but it’s not automatic. Since the offence is non-bailable, the court decides based on factors like evidence, case severity, and risk to the victim.

Q2. Is anticipatory bail allowed in Section 354 IPC?

Yes, you can apply for anticipatory bail, but it’s not guaranteed. The court will assess the seriousness of the allegations and evidence before granting relief.

Q3. How long does it take to get bail in IPC 354?

There’s no fixed timeframe for bail under Section 354 IPC. It depends on court workload, case complexity, and legal arguments. Bail can take a few days or several weeks, depending on how quickly the court hears your case.

Q4. What if the complaint is false under 354 IPC?

If a complaint under Section 354 IPC is proven false, the accused can present evidence, challenge the allegations in court, and seek legal recourse. A counter-complaint for malicious prosecution or defamation may also be filed. Additionally, the complainant may face prosecution under Section 182 IPC now BNS Section 217 for providing false information to the police. If the allegations are disproven, the court may acquit the accused.

Q5. Can a woman be charged under Section 354?

Yes, a woman can be charged under Section 354 of the IPC. The law applies to anyone who assaults a woman with the intent to outrage a woman's modesty, regardless of gender.