“Physical contact during resistance is not unwelcome sexual advance”: Kerala HC suppresses FIR

The Kerala High Court recently filed a First Information Report (FIR) against Dr. PK Baby, director of child welfare and syndicate member at Cochin University of Science and Technology (CUSAT), who was accused of sexually harassing a female student during a youth festival.

The court ruled that the physical contact that occurred during the incident was not an unwelcome or explicit sexual advance, but rather part of a resistance effort to maintain discipline.

Justice A. Badharudeen, presiding judge of the court, was hearing a case arising out of an incident on March 1, 2024 during the ‘Sargam’ youth festival at CUSAT. The complainant, a law student and stage presenter, alleged that after the program ended at 9pm, she along with another student, Sharan, tried to take an oil lamp from the stage. Dr. Baby (Applicant) allegedly stopped her, became agitated, grabbed her forcefully and touched her breast twice despite her objections. The complainant further alleged that Dr. Baby threatened her and explained that her studies would be disrupted if she reported the incident. The FIR has Dr. Baby booked under Sections 354 (assault or criminal force against a woman with intent to outrage her modesty), 354A(1) (sexual harassment) and 506 (criminal intimidation) of the Indian Penal Code (IPC).

Advocate Salim VS, representing the plaintiff, argued that the FIR was lodged 127 days after the alleged incident, suggesting that the delay indicates that the complaint was lodged with malicious intent. It also highlighted that the university had put strict guidelines in place following a deadly stampede at an event in 2023. These guidelines, approved by the university’s syndicate, required all events to end by 9 p.m. and the petitioner was responsible for ensuring compliance during the festival. It was also alleged that the complainant attempted to circumvent these rules by entering the auditorium after the allotted time, which led to an altercation when the complainant refused her entry. The petitioner claimed that any physical contact was accidental and resulted from his policy enforcement efforts and was not based on intentional harassment.

In contrast, the complainant, represented by Public Prosecutor MP Prasanth (for the State) and Advocate Asif MA, alleged that the actions of the complainant were deliberate and amounted to sexual harassment and intimidation. The prosecution, relying on the findings of the Internal Complaints Committee’s investigation, submitted that the case warranted a thorough investigation to uncover the truth and, therefore, the FIR should not be quashed at this stage.

After examining the facts, the court concluded that the dispute appeared to be the result of Dr. Baby’s efforts were to enforce discipline in accordance with University policy and that there was no evidence that there was an intention to violate the complainant’s modesty or to sexually harass him.

Further, the court observed that the essential elements required to constitute offenses under Sections 354 and 354A(1) of the IPC were not established. “At first glance, it could not be assumed that the plaintiff here had the intention to violate the modesty of the de facto complainant in any way or to sexually harass her. “Besides, the physical contact as part of such resistance could not be considered as giving rise to unwelcome and explicit sexual advances,” the court noted.

The court also took into account the significant delay in filing the FIR and observed, “In view of the matter, the FIR registered a subsequent deficiency after 4 months and 6 days after 3 months and 26 days of lodging the complaint to the Vice-Chancellor in good faith.”

As a result, the court granted the petition to dismiss the case. However, the court warned the plaintiff not to take any retaliatory measures that could hinder the applicant’s studies, noting that such measures would be treated with due seriousness.