Section 74 BNS | Outraging the Modesty of Woman | Bailable or Not ?
74 BNS
The section 74 BNS deals with offence of using Criminal Force and assault against woman. Earlier section 354 IPC (Indian Penal Code) was dealing with such offences.
Section 74 of BNS
Whoever use criminal force to any woman intending to outrage or knowing it to be likely that he will thereby outrage her modesty.
Woman can file police complaint under this section.
Intention is not the sole criterion of the offence punishable under section 74 BNS and a person can assault or use criminal force to any woman, if he knows the act likely to affect the the modesty of the woman.
Section 74 of Bharatiya Nyaya Sanhita, 2023
The provisions of section 74 of BNS safeguard public morality and decent behavior.
Therefore, if any person uses criminal force upon any woman with the intention or knowledge that the act outrages modesty of woman. He is liable for punishment.
Ingredients of 74 BNS
The essential ingredients of the offence under section 74 are as under:
(1) That the person assaulted must be a woman.
(2) Accused must have used criminal force on her intending thereby to outrage her modesty.
(3) What constitutes an outrage to female modesty is nowhere defined. The essence of a woman's modesty is her sex.
(4) Act of pulling a woman, removing her dress coupled with a request for sexual intercourse, as such would be an outrage to the modesty of a woman.
(5) Knowledge of outraging of modesty is sufficient to constitute the offence without any deliberate intention of having such outrage alone for its object.
74 BNS bailable or not
The offence under section 74 of BNS is cognizable and Non-bailable and triable by Any Magistrate.
However, an accused can file anticipatory bail application before High Court on the ground that he will co-operate the police investigation.
Punishment of Section 74 BNS
The punishment for section 74 BNS is imprisonment for one year which may be extend to five years and fine.
Supreme Court Case Laws
There are following few important Supreme Court judgments on section 74 BNS which may help in criminal trial.
“Neither the use of criminal force alone nor act of outraging the modesty alone is sufficient to attract an offence.”
Case Reference: Gigi v State, 2013 Cr LJ (NOC) 228
“The interpretation of the word "modesty" is not to be interpreted with reference to the particular victim of the act, but as an attribute associated with female human beings as a class. It is a virtue which attaches to a female on account of her sex.”
Case Reference: Tarkeshwar Sahu v State of Bihar, (2006) 8 SCC 560
Unless culpable intention is proved mere touching the belly of a female in a public bus cannot be called a deliberate act of outraging the modesty of a female within the meaning of this section. In the circumstances of the case the act of the accused was held to be accidental and not intentional.
Case Reference: Ram Das v State of WB AIR 1954 SC 711
Conclusion
The section 74 of the BNS is similar to Section 354 of IPC and basically deals with the offence of outraging the modesty of woman.
Dividing line between attempt to commit rape and indecent assault is not only thin but also is practically invisible.
If the Medical evidence does not indicate as to whether accused has tried to rape the girl but could not succeed. Offence committed by accused did not amount to attempt to commit rape but was one under this section.
Frequently Asked Questions
1. What is important to invoke section 74 of BNS against anyone ?
Answer. Intention play important role to invoke this section against anyone.
2. If intention is important then what is role of criminal force ?
Answer. Criminal Force alone cannot invoke this section without any intention to outrage modesty of woman.
3. What is difference between attempting rape and outraging modesty of woman ?
Answer. Only medical evidence can differentiate between attempting rape and outraging woman because mere outraging modesty cannot invite attempting rape.
Actions of the accused like undressing himself and victim in course of attempting rape is relevant to differentiate between attempting rape and outraging modesty of woman.
4. Whether Departmental Inquiry acquitted a male employee charged with misbehavior with subordinate woman employee, will affect criminal proceedings ?
Answer. No, acquittal in Departmental inquiry on sexual harassments will not affect criminal trial because criminal trial is separate proceedings.
5. Can parties do compromise at any stage ?
Answer. Yes, parties can very well do compromise. Supreme Court in one appeal on filing of affidavit, allowed to compromise.
6. Can accused file anticipatory bail ?
Answer. Yes, under section 482 of BNSS, an accused can file anticipatory bail application before respective Session Court then High Court.
7. What remedy an accused has when police register false case against him ?
Answer. Under section 528 of BNSS, the accused can file petition before High Court directly to quash the FIR or criminal proceedings.