Obscene acts done or viewed in privacy do not constitute an Offence: Bombay HC [Read Judgment]

A Division Bench of the Bombay High Court recently held that any obscene action done or viewed in privacy would not constitute an offence under section 294 of the Indian Penal Code.

The factual matrix leading to the petition being filed before the High Court involved a complaint being made to the Assistant Commissioner of Police, Andheri, by Mr. Jagjit Girmile, who is a Journalist by profession. Mr. Girmile had informed the ACP that a private party was going on in his neighboring flat, wherein some women dressed scantily were dancing and making obscene gestures to the customers, who were showering money on them. Pursuant to this information, the Police officials organized a raid, by arranging two panch witnesses.

During the raid, Police officials noticed that music was being played, and six women, scantily dressed, were dancing, while the men were consuming liquor. They also found men showering money on these women. The Police then took charge of articles in the flat and issued notices to six women and the owner of the flat to report to the police station for further action. An FIR was later registered under Section 294, read with Section 34 of the Indian Penal Code. Section 294 lays down the punishment for obscene acts or words in public, and section 34 deals with common intention.

The petitioners had now approached the High Court for quashing of this FIR. The question that arose for the Court’s consideration was whether any obscene act in a private place causing no annoyance of others constitutes an offence punishable under section 294 of IPC.

The petitioners had argued that the flat in question cannot be said to be a public place where anyone could have access. Agreeing with this contention, the Court noted that the main ingredient of Section 294 of IPC is the commission of an obscene act at a public place. It noted that the FIR does not reflect any annoyance being caused to the public because of the alleged activities going on in the flat. It further observed that an apartment in a building owned by some private person meant for private use, cannot be said to be a public place.

“In the case in hand, even if the averments made in the F.I.R. lodged meticulously after conducting raid at the spot of incident are taken at their face value and accepted in their enterity, do not prima facie constitute an offence punishable under section 294 of I.P.C. Obscene act alleged in the F.I.R., as per averments made in the F.I.R., was not being conducted at a public place and that too to the annoyance of others,” the Bench comprising Justice A.M. Badar and Justice Naresh H. Patil hence observed.

Read the Judgment here.