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2025 Supreme(Online)(Bom) 4307
BOMBAY HIGH COURT
A. S. Gadkari, Dr Neela Gokhale, JJ
Jestin Alexander Fernandes – Appellant
Versus
The State of Maharashtra – Respondent
Criminal Writ Petition No. 2415 of 2024
For the Appellants/Petitioners: Mr. Sunny Aaron Waskar, Mr. Shamish Marwadi
For the Respondents: Mr. Ajay Patil, APP
The mere presence of an individual at a location where obscenity occurs does not constitute legal liability without demonstrable encouragement or participation as required under the relevant statutes.
Headnote:(A) Indian Penal Code - Sections 294, 114; Maharashtra Police Act - Section 33 (W) - Criminal proceedings sought to be quashed due to lack of evidence indicating the petitioner's direct involvement in the offense. The petitioner was identified only as a bystander without any explicit act of encouragement towards dancers. (Paras 8, 9, 10)
(B) Evidence Requirement - For offenses under Sections 294 and 114, the accused must actively participate in obscene acts; mere presence is insufficient to hold liability. The court reiterated that vague allegations without substantial evidence cannot sustain prosecution. (Paras 7, 8, 10)
Facts of the case:
The petitioner is accused in a case involving alleged obscenity and encouragement of dancers in a bar. The police conducted a raid based on complaints of illegal activities, with the petitioner alleged to have encouraged dancers without substantive evidence against him.
Findings of Court:
The petitioner's actions did not demonstrate active encouragement or involvement in any obscene acts, thus quashing the proceedings against him.
Issues: Whether mere presence at an obscene event constitutes encouragement to perform illegal acts under IPC and the Maharashtra Police Act?
Ratio Decidendi: The court held that the mere presence of the petitioner does not substantiate an offense as there was no explicit involvement in any obscene act as required under the relevant sections, reinforcing the principle that vague allegations are insufficient for prosecution.
Result: Petition is allowed.
| Table of Content |
|---|
| 1. initiation of criminal proceedings based on vague allegations. (Para 1) |
| 2. prosecution's case based on raid and allegations. (Para 2) |
| 3. petitioner's defense based on lack of encouragement evidence. (Para 4 , 6) |
| 4. requirement for specific engagement in acts to establish liability. (Para 7) |
| 5. court evaluates evidence required for the alleged offense. (Para 8 , 9) |
| 6. no offense found against the petitioner. (Para 10) |
CORAM : A. S. GADKARI AND DR NEELA GOKHALE, JJ.
DATE : 23rd SEPTEMBER, 2024.
P.C. :-
1) Petitioner seeks to quash and set aside the criminal proceedings bearing C.C.No.1652/PS/2016 pending before learned 22nd Metropolitan Magistrate, Andheri, Mumbai arising out of the F.I.R.No.188 of 2015 dated 29th May 2015 registered with Sahar Police Station, under Sections 294 , 114 read with 34 of the Indian Penal Code (IPC) and Section 33 (W) of Maharashtra Police Act .
2) The case of prosecution is that, on 28th May 2015, the Police Inspector one Mr. Bidkar along with other officers attached to the Social Work Department, Crime Branch, Mumbai received secret information that there were some illegal activities being conducted in the Hotel Dasi (Airlines), Andheri Kurla Road, Marol Pipe line, Andheri (East). A raid was organised by the police. It was found that, there was an orchestra playing songs to the tune of which the girls were dancing to entertain customers sitting in the restaurant. The girls were making provocative gestures and were trying to get physical with the customers. The Bar Manager, orchestra Artist, bar girls along with 15 customers were arrested by the raiding party. The Petitioner is one of the customers. He is alleged to have been encouraging the ladies performing dance. Thus, the F.I.R. impugned was registered.
3) Mr. Sunny Waskar, learned counsel appears for the Petitioner and Mr. Ajay Patil, learned APP represents the state.
4) Mr. Waskar submitted that the Petitioner has been falsely implicated on the basis of vague allegations. Assuming that the Petitioner was present at the place of incident, it cannot be said that he was encouraging the dancers. The offence under Section 294 of IPC as well as Section 33 (W) of Maharashtra Police Act are not attracted to the Petitioner. 5) He has also placed reliance on the recent decision of this Court in the case of Mr. Rushabh Minishkumar Mehta and Anr. v. The State of Maharashtra 1 to contend that, merely being present in a place where obscene acts are done by another person, where he is merely a spectator does not attract the provisions of Sections 294 and 114 of the I.P.C. He further submits that, there is no allegation against the Petitioner that he indulged in any obscene act. Thus, he is not liable to be prosecuted for the alleged offense. He therefore prays that the Petition be allowed and the criminal proceedings be quashed.
6) Mr. Ajay Patil drew our attention to the contents of F.I.R. wherein according to him, a specific role has been attributed to a list of persons including the Petitioner, that of encouraging the women in the Bar and Restaurant, to dance and make obscene gestures. He submits that, this amounts to participating in the commission of offenses as alleged and hence the Petitioner is liable to be prosecuted.
7) We have heard learned counsels for the parties and perused the record with their assistance.
8) A perusal of the provisions of bare Sections of the offences alleged indicate that, in order to attract the ingredients of the aforesaid offenses, it is necessary that, the accused person indulges in doing any obscene act in a public place or singing, reciting or uttering any obscene song in or near a public place. There is no material on record to indicate that, the Petitioner is either doing any obscene act or singing or uttering
1 Criminal Writ Petition (St) No.4799 of 2020 dated 14th January 2021.
any obscene song. There is only a generic statement pertaining to the customers found in the Bar and Restaurant that they were enjoying
