Bombay High Court Calls For "Progressive" View On Obscenity, Says Wearing Short Skirts, Dancing Provocatively Not Per Se Obscene

Women dancing provocatively in skimpy clothes or making gestures are not “obscene” or “immoral” acts which could annoy someone, the Bombay High Court's Nagpur bench has held.

A division bench of Justices Vinay Joshi and Valmiki Menezes quashed an FIR against five men accused under Section 294 (obscenity) of the IPC and under sections of the Maharashtra Police Act for indecency in public and the Maharashtra Prohibition Act, 1949.

The police filed an FIR after conducting a raid at the Banquet Hall of a Resort and Water Park where six women were allegedly found dancing in short skirts and the applicants were showering money on them. Both men and women were booked in the case.

“We are of the considered opinion that the acts of the Accused Nos.13 to 18 (female dancers) referred to in the complaint/FIR, namely wearing short skirts, dancing provocatively or making gestures that the Police Officials consider obscene cannot be termed to be per se obscene acts, which could cause annoyance to any member of the public.”

The bench said it was mindful of the general norms of morality prevalent in present Indian society but “in present times it is quite common and acceptable that women may wear such clothing, or may be clad in swimming costumes or such other revealing attire.”

“We often witness this manner of dress in films which pass censorship or at beauty pageants held in broad public view, without causing annoyance to any audience. Surely the provisions of Section 294 of IPC would not apply to all this situation," Court added.

The court held it would take a progressive view in the matter and was unwilling to leave a decision, as to what would constitute obscenity in the hands of police officers.

“…we are unable to countenance a situation where acts such as the ones referred to in the FIR would be judged by a Police Officer, who in his personal opinion considers them to be obscene acts to cause annoyance to any member of the public.”

Advocate Akshay Naik for the applicants had argued that the section 294 of the IPC wasn’t made out as there is no mention of any person or the complainant experiencing a sense of annoyance by witnessing the dancing girls. Moreover, merely because a police officer felt what he saw was obscene wouldn’t make the act an offence.

The petitioners and the court relied heavily on the Supreme Court case in Indian Hotel and Restaurant Association (Ahar) and Anr. vs. State of Maharashtra.

Additional Public Prosecutor S. S. Doifode for the State submitted an affidavit of the police stating that the raid was conducted based on a secret information from a member of the public annoyed with the dance.

The court said for an offence to be made out under section 294 of the IPC – i) an act must have been done in a public place; ii) the said act must be obscene; and iii) the same must cause annoyance to others.

While the acts were performed in a public place, the bench held it was neither obscene, nor to the annoyance of anyone.

“We are constrained to reject the submissions made by the learned Addl. P. P., both on the question of claims of the complainant that the girls found dancing in skimpy clothes were indulging in obscene or immoral acts as also the submission that the FIR would disclose that such acts were to be annoyance of others.”

Case No - CRIMINAL APPLICATION (APL) NO. 817 OF 2023

Case Title - Lalit S/o Nandlal Bais vs State of Maharashtra

Appearances - Mr A. A. Naik, Advocate for Applicants. Mr S. S. Doifode, Addl. P. P. for Non-Applicant/State

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