A public servant indulging in sexual intercourse by abusing his official position cannot be convicted unless victim was in his custody.
NEW DELHI: A public servant indulging in sexual intercourse with a woman by allegedly abusing his official position cannot be convicted unless it is proved that the victim was in his custody, said the Supreme Court.
The verdict was delivered by the apex court which acquitted a government school teacher who was accused of taking advantage of his official position for sexually assaulting his student.
Though the teacher was held to be the public servant, the court maintained that the alleged offence did not attract the provision of Section 376-B (sexual intercourse by public servant with a woman in custody) of the IPC warranting his conviction.
While acquitting the teacher, a Bench comprising Justices SB Sinha and Markandey Katju maintained that essential ingredients of the provision that the victim was in 'lawful custody' was not satisfied in the case.
"Sexual intercourse, therefore for the purpose of attracting Section 376-B of the IPC must take place at a place where the woman was in custody. In this case, the prosecutrix (victim) categorically admitted that the same did not take
place within the precincts of the school but outside the school," the Bench said, setting aside the verdict of Madhya Pradesh High Court confirming the trial court verdict imposing two years sentence on the teacher.
The High Court had concurred with the trial court that victim as a student was in the custody of the teacher, who abused his official position as a public servant for committing sexual intercourse.
The apex court, however, said for attracting the provision of section 376-B, the five ingredients that needed to be satisfied are -- the accused must be a public servant, he must take advantage of his official position, he must induce or seduce any woman, such woman must be in his custody in such capacity or she is in the custody of public servant subordinate to him and he must have sexual intercourse with her which does not amount to the offence of rape.
The Bench said for satisfying that the offence falls under 376-B, it has to be determined that the expression 'custody' implies 'guardianship' and it must be "lawful custody and when these two ingredients are satisfied, the third ingredient would be as to whether the public servant has taken advantage of his official position".
Holding that these ingredients were not satisfied in the case, the Bench said "If a student and a teacher fall in love with each other, the same would not mean that the teacher has taken undue advantage of his official position and even then, there must be an inducement or seduction by a public servant so far as the woman in his custody is concerned."
The teacher was accused of entering into sexual intercourse with the student on the grounds that he had threatened her that she would be failed in her class.
During the investigation, it was found that the student was not minor and was in the same class, VII for three years and even the trial court's finding that she was a 'consenting party' to the sexual intercourse was upheld by the High Court.
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