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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CRIMINAL BAIL APPLICATION NO.2185 OF 2021

Razik Muneer Ahmed

..

Applicant

Versus

State of Maharashtra & Anr.

..

Respondents

…

Mr.Rahul Kadu i/b S. Kadu Law House LLP for the Applicant.

Mr.A.R.Kapadnis, APP for the State.

PSI Chaitali B. Gapat attached to Kondhwa Police Station

present.

...

CORAM: BHARATI DANGRE, J.

DATED : 4^th AUGUST, 2021

P.C:-

1.

The applicant is charged with the offences punishable

under Sections 354, 354A, 354B read with Section 34 of the

IPC and Sections 8 and 12 of the POCSO Act in an FIR vide

No.971 of 2020 registered with Kondhwa Police Station,

District Pune.

2.

The complainant is the mother of the victim girl, aged 16

years, who was sent for a stay with her aunt (accused No.1)

and the incident took place during her stay was reported to the

complainant.

The victim girl informed her mother about the strange

approach of her aunt when she used to fondle her breast and

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used to indulge in obscene talks with her boyfriend in her

presence, accused No.2 (the present applicant). It is alleged

that the victim’s aunt used to boast about the advantages of

being in fesh trade, but the victim resisted and told her that

she was interested in persuading her education.

3.

An incident has been narrated by the victim when the

aunt took the victim in her bedroom and after bolting the door,

she indulged in foreplay with the applicant by saying that they

will demonstrate how the act is to be performed. The victim

girl alleged that accused Nos.1 and 2 removed all their clothes

and were naked. Thereafter, accused No.1 removed her top

and instigated accused No.2 to indulge in sex with the victim

girl. However, she somehow freed herself and ran out of the

room.

The statement of the victim girl came to be recorded

during the course of investigation and she confrmed the

allegations in the complaint.

4.

In the wake of the allegations, the applicant came to be

arrested on 07/08/2020 and since then he remain

incarcerated. The crime invokes Sections 354, 353A, 354 B

read with Section 34 of the IPC and Section 8 and 12 of the

POCSO Act. On perusal of the accusations levelled against the

present applicant, prima facie, Section 354 is attracted since

the act of removing her top and forcing her to indulge in sexual

act is with an intention to outrage her modesty. However,

Section 354A which makes an act of sexual harassment

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punishable contemplate a man committing any of the following

act :-

(i)

physical contact and advances involving unwelcome and

explicit sexual overtures; or

(ii)

a demand or request for sexual favours; or

(iii)

showing pornography against the will of a woman; or

(iv)

making sexually coloured remarks, shall be guilty of the

offence of sexual harassment.

The victim does not allege that it is the applicant who

committed any of the act contemplated in clauses (i), (ii) and

(iv), but whether the applicant indulging in an inappropriate

manner with accused No.1 would fall within the purview

‘Pornography’, which is a portrayal of sexual subject matter

for the exclusive purpose of sexual arousal in form of books,

magazine, photographs, sculpture, painting, animation, video

flm etc. Wthether the act of the accused persons would fall

within the purview of ‘Pornography’ is a matter of trial since

‘Pornography’ have depiction of erotic behaviour (as in books

or writings) intended to cause sexual excitement or material

(such as books or photographs) that depict erotic behaviour

and is intended to cause sexual excitement. As