A First Information Report (FIR) registered in sexual offences, cannot be quashed merely on the ground of delay as the victim takes time to muster courage to lodge the complaint fearing the social stigma and also the 'uncomfortable' questions that she would be subjected to, held the Bombay High Court recently while quashing a section 354 (outraging modesty) case against a man, who molested a house help.

Single-judge Justice Ranjitsinha Bhonsale refused to quash the FIR lodged against one Nandakumar Panicker, who is originally from Kerala but lived in Mumbai's Kandivali area, at the time of the offence.

The allegation against Panicker was that he initially asked the victim "if her husband was weak" and then on March 10, 2019, while the victim was cleaning the utensils, he grabbed her from behind, pulled her saree and pressed her breast. She somehow managed to get out of his hold and left his flat and then told her husband in the evening. However, the accused harped on the delay of 21 days in lodging the FIR against him and the absence of no proper explanation, and thus urged the court to quash the FIR.

"The reasons for delay may vary, and in such cases there can be various reasons for the delay. Such case, attach to them as a social stigma and on many occasions, the complainant may take some time to gather the courage to file a complaint, anticipating uncomfortable questions and social stigma. Only because a delay of a few days is not explained, cannot be a ground to throw out a criminal prosecution," Justice Bhonsale held in the order pronounced on June 10.

For delay to be considered as a ground to throw out a criminal prosecution, the delay has to be considerably long and unexplained, the judge said, adding that it is important to keep in mind that, the delay has to be understood, considered and construed, keeping in mind the offence. The manner in which unexplained delay is to be viewed to a large extend depends on the nature of the offence, the age of victim, the social strata to which the victims belongs.

"In my opinion, it cannot be a straight jacket formula. In offences like the present one under Section 354 of the IPC, the sexual offences or any other offence under the POCSO Act or even a offence under Section 498-A of the IPC, the delay will have to be construed and considered in the facts and circumstances in which the offence takes place. In a traditional society like ours, unfortunately many families find it exceedingly and extremely difficult to initiate even a genuine criminal prosecution when such nature of offences are involved. In my view, in such matters delay alone cannot be a ground to quash a criminal prosecution. The delay is required to be exceptionally long and has to be considered with the surrounding circumstances," Justice Bhonsale emphasised.

Whether the delay is reasonably explained, the judge said will depend on the facts of each case and also that the reasonableness of the delay will depend on the nature and severity of the allegations and the attending circumstances.

"In my opinion, cases relating to the offences against women and similar cases, the criminal prosecution ought not to be thrown out on the sole ground of unexplained delay unless the delay is attributed to some mala fides, personal vengeance or vendetta which is prima facie made out and writ large on the record," the judge observed.

The judge further noted the argument of the accused that the investigating officer failed to record the victims statement under section 164(5A) of the Criminal Procedure Code (CrPC) and thus not followed the mandate of the law and thus the FIR cannot stand. However, the judge noted that the provision relied upon by the accused does not provide for the 'effect of non-recording' of the statement under the said provision itself.

"A non-recording of the section 164(5A) or refusal of the victim in recording the statement though called upon cannot in all cases prove fatal to the prosecution or imply that an automatic benefit accrues to the accused. The non-recording of section 164(5A) statement cannot be the sole ground for rejecting a criminal prosecution which is otherwise prima facie made out," the judge opined.

Therefore, the judge held that the victim as well as the prosecution have successfully made out a prima facie case against the victim and therefore rejected the plea to quash the FIR.

Appearance:

Senior Advocate Haresh Jagtiani along with Advocates Nikhil Ghate and Pushpvijay Kanoji instructed by Haresh Jagtiani and Associates appeared for the Petitioner.

Additional Public Prosecutor YM Nakhwa represented the State.

Advocates Dilip Shukla and Priya Pandey represented the Victim.

Case Title: Nandakumar Sukumar Panicker vs State of Maharashtra (Criminal Writ Petition 1297 of 2021)

Citation: 2026 LiveLaw (Bom) 279

Click Here To Read/Download Judgment