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Synopsis

The Bombay High Court has recently held that waiters of Bar and Restaurants cannot be booked for obscenity under Section 294 of the Indian Penal Code.

A division bench of the high court comprising Justice AS Gadkari and Justice Neela Gokhale was hearing a petition filed by one of the waiters who was serving the customers. The waiter approached the high court to quash the case filed against him.

The prosecution alleged that some illegal activities were being conducted in the New Park Side Bar and Restaurant where more than four women referred to as Bar Girls were dancing and making obscene gestures.

A raiding party was organized by the Police to raid the said premises. It was found that there was an orchestra playing songs on which the girls were dancing to entertain customers sitting in the restaurant.

The girls were making provocative gestures and were trying to get physical with the customers. The owners of the bar, the manager, 9 waiters, and 11 customers were booked by the police under Section 294 of the IPC.

The petitioner contended that merely being present in a situation where obscene acts are done by another person, and where he is merely a spectator, does not attract the provisions of Sections 294 and 114 of the IPC.

He further submitted that there is no allegation against him that he indulged in any obscene act, and thus, he is not liable to be prosecuted for the alleged offence.

The prosecution contended that the contents of F.I.R. and chargesheet wherein according to him a specific role has been attributed to a list of persons including the petitioner, that of serving the customers in the Bar and Restaurant and facilitating the customers to enjoy the entertainment.

The bench in its order noted that a perusal of the provisions of the bare section indicates that, in order to attract the ingredients of the aforesaid offences, 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.

Furthermore, the bench recorded that 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 acts or was abetting it.

Therefore, while quashing the case against the petitioner the bench noted that, “There is only a generic statement of the informant and other witnesses that, the waiters were also encouraging the women artists to dance in an obscene and provocative manner. 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. Furthermore there is also no material to suggest that, the Petitioner was an abettor present when the offense was committed,” the order reads.

Case title: Santosh Paul Rodrigues vs State of Maharashtra