Physical Contact During Resistance Is Not 'Unwelcome, Explicit Sexual Overture': Kerala HC Quashes FIR Against Teacher U/S 354, 354A(1) IPC
Tellmy Jolly
11 Oct 2024 12:30 PM IST
While quashing an FIR against a man booked under IPC Sections 354 and 354A(1) who allegedly had an altercation with a woman, the Kerala High Court observed that physical contact as part of resistance cannot be termed as an unwelcome and explicit sexual overtures.
The order was passed in a plea moved by the Director of Youth Welfare and Member of the Syndicate Board of Cochin University of Science and Technology (CUSAT) seeking quashing of an FIR lodged against him by a law student. The student had alleged sexual harassment, outraging her modesty and criminal intimidation.
A single judge bench of Justice A. Badharudeen observed that the petitioner was trying to implement restrictions to maintain discipline during the Youth Festival strictly and it cannot be held that he had any intent to outrage the modesty or sexually harass the de facto complainant.
“Summarising the factual matrix in this case, it is discernible that when the defacto complainant attempted to move towards the auditorium on the pretext of taking an oil lamp, after completion of the programme overstepping the outer time limit fixed as 9.00 pm, as per the guidelines, as part of the strict compliance of the discipline, the petitioner herein objected the same and there was, altercation as part of conductance and resistance. In such a situation, it could not be held, prima facie, that the petitioner herein had any intention to outrage modesty of the defacto complainant in any manner or to harass her sexually. That apart, the physical contact as part of such resistance could not be held as the one which advanced unwelcome and explicit sexual overtures. Failure to lodge a complaint in this regard at least to the University Authorities, soon after the occurrence would show that the allegations in the complaint and in the FIS are afterthought events. Viewing the facts in this case from the above perspective, none of the offences are made out, prima facie.”
The allegation was that the petitioner got angry and forcefully groped the breast of the de facto complainant who was a stage convenor in Sargam Youth Festival, 2024 in CUSAT. It was alleged that the de facto complainant became mentally depressed and felt ashamed. She also alleged that the petitioner threatened her from disclosing this to anyone, stating that her studies would be jeopardized if she did so.
He is thus alleged to have committed offences punishable under Sections 354 (assault or criminal force to outrage woman's modesty), 354A(1) (sexual harassment) and 506 (punishment for criminal intimidation) of the IPC.
The petitioner stated that he and other faculties had strict instructions from the University to conclude the Youth Festival by 9 pm. He submitted that to prevent any untoward incident this year during Youth Festival the University had decided to strictly implement the University's guidelines; these came into place after a stampede occurred last year during an annual technical festival where four people were killed prompting the government to issue directions to institutions for conducting fests. He alleged that the due to strict implementation of restrictions in the Youth Festival, the University Union became hostile to the petitioner. It was alleged that the petitioner prevented the de facto complainant and a boy from entering the auditorium at night–to take an oil lamp, which they refused and forcibly tried to enter the auditorium. It was alleged that during the altercation, the petitioner's hand touched the body of the de facto complainant. The petitioner claimed that there were other witnesses also to the above incident.
The petitioner stated that complaint was filed against him with a political notion and to put him in trouble. He submitted that there was a delay of more than 3 months in filing compliant to the Vice Chancellor and more than 4 months delay in lodging the FIR. He submitted that FIR was filed only because he was strictly implementing discipline during the Youth Festival.
The court observed that the most essential ingredient to attract an offence under Section 354 of IPC is assault or use of criminal force to any woman with intent to outrage or knowing it to be likely that he will thereby outrage her modesty. It also stated that to attract an offence under Section 354 A (1) of IPC, there must be unwelcome and sexual overtures of physical contact and advances, demand or request of sexual favours, displaying pornography against women's will and sexually coloured remarks.
Taking note of the factual matrix the court said it was discernible that the petitioner was trying to prevent the de facto complainant from entering the auditorium for strict implementation of discipline and the altercation was a result of the same.
It thereafter said, “In view of the matter, the FIR registered after 4 months and 6 days after 3 months and 26 days of lodging the complaint before the Vice Chancellor as an afterthought lacks bona fides and the prayer to quash the FIR is liable to succeed.”
The High Court thereafter quashed the FIR and said that the petitioner shall in no way hinder the studies of the de facto complainant.
Case Title: Dr P K Baby v State of Kerala
Counsel for Petitioner: Advocates Salim V.S., A.M.Fousi, A.B.Ajin, H.Nujumudeen
Counsel for Respondents: Advocate Asif M A, Public Prosecutor M P Prasanth
Case Number: CRL.MC NO. 6103 OF 2024
Citation: 2024 LiveLaw (Ker) 629
