Abuses can’t be given in chorus and atrocity not inferred when whistling from one’s terrace, says HC | India News – Times of India

MUMBAI: The Bombay high court bench at Aurangabad recently granted pre-arrest bail to a trio accused by a woman belonging to a Scheduled Caste community of committing offences of sexual nature under the Atrocities Act by whistling and making sounds and gestures from the terrace of one of the accused towards her.
The HC said, “Merely because some sound is created by a person in his house we cannot directly infer that it is with such an intention that it is with sexual nature towards the informant.”
The complaint said that the trio had “hurled abuses’’ at her over her caste in November 2021.
The HC after hearing the lawyers for the appellants and the State as well as the informant, a 54-year-old housewife, the HC said, “Still if we consider that abuse was with an intention to insult the informant; yet, it is to be noted that it is alleged to have been uttered in chorus, which is an unbelievable act. Abuses cannot be given in chorus,” said Justices Vibha Kankanwadi and Abhay Waghwase in its January 5 judgment.
The woman had invoked sections 3(1)(w)(i) and (ii) of the SC/ST (prevention of atrocities) Act. The HC said, in order to attract the first provision a “person should intentionally touch a woman belonging to a Scheduled Caste knowing that she belongs to that caste and such touch is of a sexual nature and is without consent.’’
The HC bench said that on reading the entire First Information Report (FIR) lodged by the woman, it does not paint a picture of any of the three accused having in fact touched her body with sexual intent, hence the offence is not attracted.
The woman alleged that the accused, her neighbours, would commit acts like “whistling from the terrace, making noise with the help of utensils, making different kinds of sounds and continuously blowing the reverse horn of the vehicle.”
A special trial court had last November denied the trio anticipatory bail to the two men and one woman accused of the crime and they had come to the HC in appeal.
The Section 3(1)(w)(ii) which was invoked in the FIR requires “use of words, acts or gestures of a sexual nature towards a woman belonging to Scheduled Caste or Scheduled Tribe knowing that she belongs to such caste or tribe.’’ Again the HC said perusal of the FIR showed that such acts were alleged against one of the accused, a 34-year-old man, who is alleged to commit the offence “from (his) terrace’’ to cause “outraging of (her) modesty’’ . The HC said, “however, details of those acts are missing, which were prior to 28.11.2021.’’
The HC noted that she had not filed any complaints in the past.
The woman alleged the accused committed the offence on three successive days in March 2022 but the HC again noted that “all those acts appeared to have been committed from the house of the appellants and it cannot be even prima facie inferred that it was with some such nature.’’
The HC held, “When prima facie the offences are not attracting the provisions under the Atrocities Act, there was no question of bar under Section 18 ( bar on grant of pre-arrest bail) of the Atrocities Act. “
It said their physical custody is not required for any of the offences invoked under the Indian Penal Code and the “appeal deserves to be allowed’’ and ordered that in the event of their arrest they should be released on a bail bond of Rs 15000 each and directed all to cooperate with investigation.

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