Bombay High Court
Bapudeo @ Rohit S/O. Anirudra Sul vs The State Of Maharashtra on 29 September, 2017
Bench: S.S. Shinde
Cri.Appln.3910/2017
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO. 3910 OF 2017
Bapudeo @ Rohit s/o Anirudha Sul,
Age 27 years, Occu. Lecturer,
R/o Bagpimpalgaon, Taluka Georai,
District Beed, at present Kasbekar
House, Kailash Nagar, Aurangabad .. Applicant
Versus
1. The State of Maharashtra,
Through Investigation Officer,
Jinsi Police Station,
Taluka and Dist. Aurangabad
2. Snehal d/o Kailash Thorat,
Age 17 years, Occu. Education,
R/o Vidyanagar, Harsul Tea Point,
Taluka and Dist. Aurangabad
Through natural guardian
Shri Kailas s/o Ramrao Thorat,
Age Major, Occu. Service,
R/o Plot No.3, Vidyanagar,
Harsool T-Point, Aurangabad .. Respondents
Mr S.P. Salgar, Advocate for applicant
Mrs P.V. Diggikar, A.P.P. for respondent no.1
CORAM : S.S. SHINDE AND
A.M. DHAVALE JJ.
DATE OF RESERVING
THE JUDGMENT : 14.9.2017
DATE OF PRONOUNCING
THE JUDGMENT : 29.9.2017
JUDGMENT (Per A.M. Dhavale, J.)
1. Rule. Rule returnable forthwith. With the consent of parties,
matter is taken up for final disposal at admission stage.
Cri.Appln.3910/2017
2. The applicant has filed this application for quashing the FIR vide
Crime No. I-200/2017 registered at Jinsi Police Station, Taluka and
District Aurangabad, for the offence punishable under Section 354, 34
of Indian Penal Code and Section 11 and 12 of Protection of Children
from Sexual Offences Act, 2012.
3. The F.I.R. is filed by a girl 'S' (name withheld), aged 17 years on
29.6.2017 at Jinsi Police Station, Aurangabad. As per F.I.R., she was
studying in 12th Standard on Medical side and she had joined Aakash
Classes of I.I.T. NEET situated above the shop of Waman Hari Pethe
Jewellers, Jalna Road, Aurangabad. She complained that the Branch
Manager Mr Shivhari Wagh he was looking at all the girls with evil
eyes. On 28.6.2017, at 6.30 p.m. to 7.00 p.m., she had gone to the
classes for getting her batch time changed. That time, the class in-
charge Rohit Sul looked at her with evil eyes and told her that her nail
paint was fine. She told him that he should listen to what she was
saying. That time, he told her that she was having good hight and her
hight was well grown. Then, she did not speak to him. She narrated
the incident to her father and brother. When they made enquiry,
whether the other girls were having similar harassment, it was
revealed that several girls had complaints against the branch Manager
Shivhari Wagh. Since Shivhari Wagh is not applicant, it is not
necessary to consider the allegations against him. Suffice it to say
that allegations against Rohit Sul are independent and not connected
with the allegations made against Shivhari Wagh. In the F.I.R., it is
further alleged that Rohit Sul, the applicant was staring them with bad
Cri.Appln.3910/2017
intention and was behaving improperly and it was creating mental
tension for them.
4. On the basis of such F.I.R., the crime was registered at Jinsi
Police Station, Aurangabad, for the offences punishable under Section
354, 34 of Indian Penal Code. Later, the Sections 11 and 12 of
Protection of Children from Sexual Offences Act, 2012 were added.
5. The applicant challenges the F.I.R. on following grounds :
(I) The allegations made in the F.I.R. even if taken on the face
value do not disclose any offence against the applicant. Shivsena
workers demanded Rs.3 lakhs on the occasion of Dasera festival from
the class authorities, which was not complied by the branch Manager.
The father and brother of respondent no.2 are Shivsena workers.
Balasaheb and other 50 to 60 workers of Shivsena and media of
newspapers entered the institute on 29.6.2017 and started abusing
and assaulting the employees. The applicant was assaulted by
Shivsena workers. The police had visited the spot. The mob
pressurised. F.I.R was registered against Shivsena workers.
(II) There was illegal demand of money, which was not fulfilled and,
therefore, the F.I.R. was lodged as counter blast.
(III) The F.I.R. was politically motivated with malafide motives. No
incident had taken place as alleged.
Cri.Appln.3910/2017
6. After hearing the applicant, the applicant was released by
Additional Sessions Judge, Aurangabad on bail. There was deliberate
attempt to defame the institute. In addition, proceeding under
Section 107 of Cr.P.C. was initiated. The performance and intellectual
level of respondent no.2 was not upto the mark, as was revealed in
the examination conducted by Aakash Classes. The girls getting
average results were motivated to make protest. Respondent no.2,
after joining the classes made considerable improvement. The story
in the F.I.R. is concocted. Hence, F.I.R. be quashed.
7. Respondent no.2 though served with the notice did not file
appearance. Again a fresh notice for final disposal was issued and
was served, still nobody appeared for her.
8. Learned A.P.P. Mrs P.V. Diggikar has produced the report
submitted to her by the concerned Police Officer along with the
relevant documents.
9. Heard learned Advocate for the applicant and learned A.P.P. for
respondent no.1. Perused the papers. The investigating Officer has
made enquiry with the girls. All of them made complaint only against
branch Manager Shivhari Wagh. The statement of brother of
respondent no.2 alone supports her F.I.R. as against the present
applicant.
10. The offence is registered under Section 354 read with Sec.34 of
Indian Penal Code and under Sections 11 and 12 of POCSO Act.
Cri.Appln.3910/2017
11. Section 354 of Indian Penal Code involves assaults or use of
criminal force with intention to outrage the modesty of a woman.
In the present case, there is not even whisper about the allegation
of assault or use of criminal force. The allegations are also not
covered under Section 354-A of Indian Penal Code, which require
following acts:
(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.
12. Respondent no.2 has described only a solitary incident while
no other girl has disclosed anything against the present applicant.
It discloses that the applicant told respondent no.2 that her nail
paint was fine. This by no stretch can be said to be sexually
coloured remark. He also told that her hight was good. It is no
doubt true that an unknown girl would not like such comments
from a person, but the question is whether such remark can be
called as sexually coloured remark. In this case, we find that mere
appreciation of good hight will not amount to a sexually coloured
remark.
Cri.Appln.3910/2017
13. There is also a sentence that the applicant watched to
respondent no.2 with evil eyes ( okbZV utjsus ). This is a vague
statement. It does not disclose what is "okbZV utjsus".
Section 11 punishable under Section 12 of the POCSO Act
reads as follows :
"11. Sexual harassment : A person is said to commit
sexual harassment upon a child when such person with
sexual intent,-
(i) utters any word or makes any sound, or makes any
gesture or exhibits any object or part of body with the
intention that such word or sound shall be heard, or such
gesture or object or part of body shall be seen by the
child; or
(ii) makes a child exhibit his body or any part of his
body so as it is seen by such person or any other person;
or
(iii) shows any object to a child in any form or media for
pornographic purposes; or
(iv) repeatedly or constantly follows or watches or
contacts a child either directly or through electronic,
digital or any other means; or
Cri.Appln.3910/2017
(v) threatens to use, in any form of media, a real or
fabricated depiction through electronic, film or digital or
any other mode, of any part of the body of the child or
the involvement of the child in a sexual act; or
(vi) entices a child for pornographic purposes or gives
gratification therefor."
14. After carefully considering the allegations, we find that the act
of the accused does not fall in any of the sub-clauses of Section 11 of
the POCSO Act. The act of staring at the breast would amount to an
offence punishable under Section 509 of the Indian Penal Code, as it is
insult to the modesty of the woman, but no such allegation has been
made against the present applicant. Respondent no.2, if repeats the
allegation in the Court against the applicant that he was staring her
with evil eyes and the applicant denies the said fact, it will be
impossible for the Judge to decide whether the act of the accused was
any offence or not. It was necessary for the Police to properly record
the F.I.R. and make enquiry with the respondent no.2 as to what she
meant by the words, "evil eyes" ( okbZV utjsus ). No other girl is making
complaint against present applicant and the respondent no.2 has
quoted only a single instance and the utterances stated by her to
have been made by the present applicant do not amount to any overt
act of sexual nature. The mere statement that the applicant was
staring at her with evil eyes would not be sufficient material to make
out any offence under Indian Penal Code or POCSO Act.
Cri.Appln.3910/2017
15. There is no sufficient material to prosecute the present
applicant. Therefore, the F.I.R. against the present applicant deserves
to be quashed.
16. Hence, we allow the present application in terms of prayer
clause (B). The F.I.R. at Crime No. I-200/2017, registered against the
applicant at Jinsi Police Station, Taluka and District Aurangabad, for
the offence punishable under Section 354, 34 of Indian Penal Code
and Section 11 and 12 of Protection of Children from Sexual Offences
Act, 2012 is quashed against the present applicant only.
17. Rule is accordingly made absolute with no order as to costs.
( A.M. DHAVALE, J.) ( S.S. SHINDE, J. )
vvr
