Physical Contact As Part Of Resistance Can’t Be One Which Advanced Unwelcome & Explicit Sexual Overtures: Kerala HC Quashes Case Against Teacher
The Kerala High Court while quashing a sexual harassment case against a teacher, held that the physical contact as part of the resistance cannot be the one which advanced unwelcome and explicit sexual overtures.
The Court held thus in a criminal miscellaneous case filed by the accused under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) seeking to quash the FIR against him.
A Single Bench of Justice A. Badharudeen observed, “… 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.”
Advocate Salim V.S. represented the petitioner while Public Prosecutor (PP) M.P. Prasanth and Advocate Asif M.A. represented the respondents.
In this case, as per the prosecution, during the University Youth Festival, by name ‘Sargam’ conducted at Cochin University of Science and Technology (CUSAT) Auditorium, the complainant was given the charge of Stage Convenor. After the programme ended at 9 p.m., she attempted to go towards the stage along with another to take an oil lamp. At that time, the accused being the teacher of CUSAT, Director of Youth Welfare Board and member of Syndicate of CUSAT, directed the complainant to go outside. It was alleged that when she apprised the purpose, the accused became angry and forcefully caught hold of her breast.
Then, even though the complainant warned the accused not to touch her body, he allegedly caught hold of her breast twice. According to her, she became mentally depressed because of this occurrence, apart from feeling ashamed of the same. It was further alleged that the accused threatened her not to disclose the incident before the police and if she would opt so, she could not continue her studies. Based on this, the prosecution alleged commission of offences punishable under Sections 354, 354A(1), and 506 of the Indian Penal Code (IPC) by the accused. Hence, the accused sought quashing of the proceedings.
The High Court after hearing the contentions of the counsel, noted, “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.”
The Court added that in such a situation, it could not be held, prima facie, that the petitioner-accused had any intention to outrage modesty of the defacto complainant in any manner or to harass her sexually.
“Viewing the facts in this case from the above perspective, none of the offences are made out, prima facie. 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”, it said.
Furthermore, the Court specifically ordered that the accused shall not in any way do any hazards or hindrance to the complainant’s study in completing her B.A. LL.B. course and any retaliatory measures from the part of the accused will be taken with such degree of seriousness and the complainant is free to move as per law to neutralize any such acts.
Accordingly, the High Court allowed the petition and quashed the case against the accused.
Cause Title- Dr. P.K. Baby v. State of Kerala & Anr. (Neutral Citation: 2024:KER:75539)
Appearance:
Petitioner: Advocates Salim V.S., A.M. Fousi, A.B. Ajin, and H. Nujumudeen.
Respondents: PP M.P. Prasanth and Advocate Asif M.A.
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