The Bombay High Court, in a ruling by Justice A.S. Gadkari and Justice Dr. Neela Gokhale, has determined that the mere presence of a customer watching an obscene dance in a bar does not constitute an offense under Section 294 of the Indian Penal Code (IPC). The judgment quashed criminal proceedings against a customer accused of encouraging obscene acts at a bar in Mumbai, providing clarity on the limits of criminal liability for such cases.
Background of the Case
The case, “Mitesh Ramesh Punmiya v. The State of Maharashtra” (Criminal Writ Petition No. 2376 of 2023), arose from an incident on February 18, 2016, at the Sea Princess Bar and Restaurant in Mumbai. According to the prosecution, a police raid led by constable Mahesh Arun Choure discovered women dancing in an obscene manner, with customers throwing currency notes and allegedly encouraging the dancers. The petitioner, Mitesh Ramesh Punmiya, was among those present and was charged under Section 294 (obscene acts and songs) and Section 114 (abettor present when an offense is committed) of the IPC, as well as Section 131(aa) of the Maharashtra Police Act.
The prosecution argued that Punmiya, by merely being present and allegedly encouraging the dancers, had committed an offense under these sections. However, Punmiya contended that his mere presence did not amount to active participation in any obscene act.
Legal Issues Involved
Represented by his counsel, Mr. Rutuj Warick, Punmiya argued that being present in a venue where an obscene act takes place does not constitute an offense under Sections 294 and 114 of the IPC unless there is specific evidence of his involvement or abetment. The defense relied on earlier Bombay High Court judgments, such as Rushabh Minishkumar Mehta v. The State of Maharashtra and Manish Parshottam Rughwani v. The State of Maharashtra, which established that without a specific overt act, mere presence is not grounds for prosecution.
Opposing the petition, Additional Public Prosecutor Mr. Vinod Chate emphasized that the FIR contained allegations suggesting Punmiya was among the customers encouraging the women to make obscene gestures, arguing that this amounted to participation in the offense.
Court’s Decision and Observations
Justice Dr. Neela Gokhale, delivering the court’s judgment with Justice A.S. Gadkari, emphasized that for an offense under Section 294 IPC to be established, there must be concrete evidence of a person engaging in an obscene act in a public place or of singing, reciting, or uttering obscene songs or words in or near a public place. The court observed:
“There is only a generic statement pertaining to the customers found in the Bar and Restaurant that they were enjoying the show and ‘encouraging’ the women artistes. The Petitioner is not found to have been doing any explicit act that can demonstrate an external manifestation of the term ‘encouraging.’”
The court further noted that no evidence showed that Punmiya threw currency notes or actively participated in the alleged obscene acts. The judgment continued:
“He was not found to be throwing notes of Indian currency on the dancing women. Furthermore, there is also no material to suggest that the Petitioner was an abettor present when the offense was committed.”
The bench referred to earlier decisions in Manish Parshottam Rughwani v. The State of Maharashtra and Rushabh Minishkumar Mehta v. The State of Maharashtra, highlighting that without evidence of specific conduct amounting to participation, merely being present does not fulfill the legal requirements for prosecution under Section 294.
The Bombay High Court allowed the petition and quashed the criminal proceedings pending against Punmiya before the Additional Chief Judicial Magistrate, Mazgaon, Mumbai. The court’s decision underscores the principle that mere presence at the scene of an alleged crime is insufficient for prosecution under Section 294 IPC without clear evidence of participation or abetment.
The ruling provides relief to the petitioner while setting a precedent for similar cases, reinforcing the need for substantive evidence when charging individuals under such provisions.
The petitioner was represented by Mr. Rutuj Warick, with assistance from Mr. Shubhankar Avhad and Mr. Anuj Tiwari, while Mr. Vinod Chate appeared for the State of Maharashtra.
