Mumbai: A person cannot be prosecuted for merely being present in the Bar and Restaurant at the time of raid, when no specific overt act is attributed to him / her, the Bombay High Court has said.

The high court on Thursday quashed an FIR against a waiter who was serving food to customers at a bar when police raised the premises for allegedly indulging in obscene acts. “Admittedly, the Petitioner in the present case was a mere employee of the owner of Bar and he is found to be discharging his duty of serving the customers food and drink as per his employment profile,” a bench of Justices Ajey Gadkari and Neela Gokhale said.

According to the prosecution, an FIR was registered on April 14, 2016, by Dahisar police following a tip off 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.

The FIR alleged that the girls were making provocative gestures and were trying to get physical with the customers. The raiding party apprehended the bar owners, manager, another manager-cum-cashier and 9 stewards /waiters alongwith 11 customers.

The chargesheet stated that petitioner Santosh Rodrigues was one of the waiters, serving the customers in the Bar/Restaurant. Rodrogues then approached the HC seeking quashing of the FIR. pending hearing of the petition, the HC on June 18 this year, stayed the trial.

His advocate submitted that there is no allegation that Rodrigues indulged in any obscene act and thus he is not liable to be prosecuted for the alleged offence. He pointed out the FIR and the chargesheet which gave a list of persons arrested and specific roles attributed to them. It clearly stated that Rodrigues was serving food to the customers.

However, the prosecution contended this amounted to participating in the commission of offences as alleged and hence the Petitioner too is liable to be prosecuted.

The court noted that the relevant provisions of the Indian Penal Code 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.

“There is no material on record to indicate that the Petitioner is either doing any obscene act or singing or uttering any obscene song. 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 act or was abetting it,” the bench added.