Waiter Serving Food & Drinks In Bar Where Women Are Dancing Cannot Be Booked For Obscenity U/S 294 Of IPC: Bombay High Court

The Bombay High Court on Thursday held that a waiter in a Bar and Restaurant, where women are dancing in obscene manner, cannot be booked for the offence of 'obscenity' as s/he is merely performing their duty of serving food and drinks as per their employment profile.

A division bench of Justices Ajay Gadkari and Dr Neela Gokhale while quashing a First Information Report (FIR) against one Santosh Rodrigues, a resident of Malad in Mumbai, noted that he was working as a waiter in the New Park Side Bar and Restaurant as on April 14, 2016, when the Social Service Branch of the Mumbai Police conducted a raid and arrested several persons including the petitioner.

The FIR was lodged after noting that more than four women (Bar Girls) were found dancing in an 'obscene' manner and several customers were hurling notes on them, encouraging them to make more obscene gestures.

As far as the petitioner is concerned, the prosecution while referring to the FIR and also the chargesheet, pointed out a 'specific role' was attributed to each of the persons named in the case including the petitioner, who was booked for serving the customers in the Bar and Restaurant and "facilitating the customers to enjoy the entertainment." This, the prosecution argued, amounted to participating in the commission of offences as alleged and hence the Petitioner is liable to be prosecuted.

The judges, explained that in order to attract the ingredients of the offences under section 294 of the Indian Penal Code (IPC), it is necessary that the accused person indulges in doing any obscene act in a public place or singing, reciting or uttering any obscene song in or near a public place.

"There is no material on record to indicate that, the Petitioner who is either doing any obscene act or singing or uttering any obscene song. The Petitioner was serving as a waiter in the said Restaurant and there is no allegation against him that he himself was indulging in any of the obscene act or was abetting it," the bench noted.

There is only a generic statement that the waiters were also encouraging the women artists to dance in an obscene and provocative manner, Court noted.

"The Petitioner is not found to have been doing any explicit act that can demonstrate an external manifestation of the term 'encouraging'. He was not found to be throwing notes of Indian currency on the dancing women. Admittedly, the Petitioner in the present case was a mere employee of the owner of Bar and he is found to be discharging his duty of serving the customers food and drink as per his employment profile. We have no hesitation in holding that, no offence is made out qua the Petitioner herein," the bench held.

Notably, the bench also referred to its decision in Nirav Raval vs State of Maharashtra and also the recently pronounced Mitesh Punmiya vs State of Maharashtra, wherein it was held that a person's mere presence in a bar does not attract offence of obscenity and the conduct of a customer in a bar encouraging women dancers to dance in obscene manner would not attract obscenity, respectively. 

With these observations, the bench quashed the FIR lodged against the petitioner.

Appearance:

Advocates Chaitanya Malgaonkar, Dharmesh Shah, Nikhil Agarwal, Punit Singh and Melwyn Pereira appeared for the Petitioner.

Additional Public Prosecutor Ajay Patil represented the State.

Case Title: Santosh Rodrigues vs State of Maharashtra (Criminal Writ Petition 2476 of 2023)

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