IMPORTANT POINT
The court ruled that prima facie allegations of sexual harassment were established, thus quashment of proceedings was not permissible.

ORDER :

This Criminal Miscellaneous Case has been filed under Section 528 of the Bharatiya Nagarik Suraksha Sanhita (`BNSS’ for short), seeking to quash Annexure AII final report and all further proceedings in C.C.No.1505 of 2023 on the files of Judicial Magistrate of First Class-II, Hosdurg.

2. Heard the learned counsel for the petitioner and the learned Public Prosecutor in detail. Perused the impugned order.

3. The prosecution case herein is that at 20.40 hours on 29.04.2023, the accused herein forcefully compelled the defacto complainant to drink beer and lie along with the accused, and spoke against her with sexual intent when the defacto complainant reached the central hall of the house of the accused for having food and thereby committed offences punishable under Sections 354A(1)(ii) and 354A(1) (iv) of the Indian Penal Code (`IPC' for short). The specific allegation is that the accused herein, who was a retired Deputy Superintendent of Police (Dy.S.P), brought the presence of the defacto complainant at his house for stay on 29.04.2023 through one Chandran with offer to provide the defacto complainant an opportunity to act in an Album. The defacto complainant reached the residence at 4.30 p.m and Chandran left the place on dropping her at the house. While she was eating food, which she purchased from outside, the accused reached there and asked about the details of the journey and also asked whether she would like to have beer. Then he compelled her to drink beer and started to comment on her belly and asked her to show her belly. When the defacto complainant opposed the same, he continued to speak about sexual aspects and asked her to show various photographs of the defacto complainant. He also asked whether her breasts were original and told her about use of condom by the students in the nearby University. Thereafter, the accused reached the room where the defacto complainant was sleeping at 8.30 hours and requested her to lay along with him in his room where A/c is available, since no A/c was available at the room of the defacto complainant. Then he compelled her to lay along with him and the defacto complainant questioned the same. He told her not to disclose his overtures to anybody. But on the very next day, this crime was registered alleging commission of the above offences, recording the statement given by the defacto complainant.

4. While assailing the final report, the learned counsel for the petitioner pointed out that the entire allegations are false and none of the offences are made out from the facts of this case. The learned counsel placed a decision of this Court reported in [2020 KHC 803], Vijayan v. State of Kerala, to buttress his point that going by the allegations none of the offences are made out, prima facie, where this Court held as under:

“The allegation is that the accused caught hold of her nighty and attempted to outrage her modesty. Essentials of offence under Section 354 of the IPC are, 1) that the assault must be on a woman, 2) that the accused must have used criminal force on her, and 3) that the criminal force must have been used on the woman intending thereby to outrage her modesty. The act will amount to outraging of modesty if it is such which could be perceived as one capable of shocking sense of decency of a woman. Modesty of a woman is her sex, it is a virtue which attaches to a female owing to her sex. The offence of outraging the modest is committed when a person assaults or uses criminal force to a woman intending to outrage or knowing it to be likely that he will thereby outrage her modesty. For a conviction under Section 354 of the I.P.C, it is not enough merely to show that the accused assaulted a woman; it must further be proved beyond doubt, that he did so either with the intention to outrage her modesty.”

5. The learned counsel for the petitioner also placed decisions reported in [2023 (6) KLT 750], Divya.S.S.Rose v. State of Kerala; [(2022) 6 SCC 599], Kahkashan Kausar Alias S