Mumbai: Any obscene act in a private place causing no annoyance to others does not constitute offence, ruled the Bombay high court while recently quashing a complaint against 13 men who were arrested from a private party in a flat at Andheri (west).
A bench of Justice Naresh Patil and Justice A M Badar heard their plea to quash the FIR registered by Amboli police station under Indian Penal Code sections 294 (obscene acts and songs) and 34 (acts done by several persons in furtherance of common intention)
On December 12 2015, a journalist complained to the local ACP that a private party was going on in a flat where scantily-dressed women were dancing and making obscene gestures at customers and that the latter were showering money on them. A team from Amboli and Oshiwara police stations raided the place. Six women and the flat’s owner were asked to visit the police station the next day while the rest were marched to the police station. The FIR was registered against the petitioners as well as others.
The petitioners’ advocate Rajendra Shirodkar argued that the flat was not a public place where anyone could have accessed it, so it cannot attract the obscenity charge. The judges were told that except obscenity, no other offence was committed by the petitioners.
In its March 10 order, the bench said section 294 is meant for punishing persons indulging in an obscene act in any public place causing annoyance to others.
The judges said it must be shown that public has a right to have free ingress to such a place. “Viewed from this angle, the flat/apartment in a building owned by some private person meant for private use of such owner cannot be said to be a public place,” they added.
The judges said the FIR, even prima facie, does not disclose any offence. They concluded that obscene act alleged in the FIR was not being conducted at a public place and that too to the annoyance of others.
While parting the bench noted that to its query,the police officer present replied that no other offence is attracted in this case.
“As such, we fail to understand as to how the FIR came to be registered only for the offence punishable under section 294 read with 34 of IPC,” it said.
It has directed a copy of the order to be sent to the police commissioner.