The Bombay high court (HC) in a recent order held that merely being present at the place of a crime which falls under the purview of the Maharashtra Prohibition of Obscene Dance in Hotels, Restaurants and Bar Rooms and Protection of Dignity of Women (Working Therein) Act, 2016 cannot be considered a crime, and quashed a first information report (FIR) against two applicants who were arrested by Santacruz police in a raid at a dance bar in 2017. The court held that as the two had not indulged in obscene acts, nor had they abetted the same, mere presence in the place could not be considered a crime.
A division bench of justice SS Shinde and justice Manish Pitale, while hearing the petition filed by the two men, was informed by advocates Rajesh Khobragade and Gayatri Nayak that there were no specific allegations, and nor any role was attributed to their clients which would attract the charges levelled in the FIR and the charge sheet submitted by the police.
The two men were booked by Santacruz police on January 21, 2017, along with other accused persons under section 294 (punishment for obscene acts or words in public) of the Indian Penal Code (IPC) on the allegation that obscene dances were being performed by women in a bar owned by the other accused persons. The two men were booked for allegedly being present at the time.
The advocates submitted that when the ingredients of the alleged offences were not made out, there was no question of the petitioners being made to face the trial and sought the complaint against them to be set aside. Given this, in December last year, the court had granted a stay of the trial on the two men.
However, additional public prosecutor VB Konde-Deshmukh for the police submitted that the names of the two men were clearly stated in the FIR, and material collected in the charge-sheet indicated their presence at the spot of incident, and therefore, the petition deserved to be dismissed.
After hearing both sides, the bench observed, “A perusal of the material on record shows that no allegations as per section 294 of the IPC are made against the petitioners at all. Similarly, as per section 114 of the IPC, a person is liable when he is an abettor present when the alleged offence is committed. The material on record does not indicate any specific action on the part of the petitioners to qualify as abettors.”
The HC added, “Similarly, as regards the provisions of the Act of 2016, mere mentioning names of the petitioners in the FIR and the charge-sheet would not suffice and there is lack of material to indicate that the ingredients of the offences alleged under the said Act could be said to be present against the petitioners.” The bench then allowed the FIR to be quashed against the two men.