1 crwp197.26.odt IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR CRIMINAL WRIT PETITION NO.197 OF 2026 Umesh Kisanrao Chopde Age @ 60 years, Occ: Retired, R/o Nandipeth, Akot, Tq. Akot, Dist. Akola. ...PETITIONER ...V E R S U S... 1. The State of Maharashtra, through Police Station Officer, Police Station, Akot, Dist. Nagpur. 2. Sau. Usha Sudhir Hadole Aged 45 years, Occ: Housewife, R/o Somvar Ves, Nandipeth, Lokhande Hardware, Akot ...RESPONDENTS ------------------------------------------------------------------------------------------- S/shri Sagar Rawate and S.M. Vaishnav, Advocates for petitioner. Shri I.J. Damle, APP for respondent no.1/State. Ms Payal Kaware, Advocate for respondent no.2. ------------------------------------------------------------------------------------------- CORAM:- M.W. CHANDWANI, J. RESERVED ON:- 22.07.2026 PRONOUNCED ON:- 16.09.2026 JUDGMENT: 1. Rule. Rule made returnable forthwith. Heard finally with the consent of the learned counsel appearing for the parties. 2. The petitioner seeks quashing of the order dated 22.09.2025 passed by learned Judicial Magistrate First Class, Akot thereby rejecting the application for discharge filed by petitioner in Amended as per Court’s order dated 23.03.2026 2026:BHC-NAG:12485 2 crwp197.26.odt R.C.C. No.66/2021 which was confirmed by the learned Additional Sessions Judge, Akola by its order dated 06.02.2026 in Criminal Revision Application No.32/2025. 3. The facts which led to filing of the present petition are as under: Respondent no.2/ informant is the neighbour of the petitioner. On 14.10.2020, respondent no.2 lodged a complaint against the petitioner with Police Station, Akot, alleging that the petitioner has constructed a two-storeyed building and two windows at the backside of his house which are facing towards the house of respondent no.2. The petitioner used to tease respondent no.2 through these windows and therefore, he was asked to close those windows, but he did not pay heed. The husband of respondent no.2 lodged a complaint with the Planning Authority, Municipal Council, Akot. It is alleged that on 09.10.2020, at about 8.30 a.m., when respondent no.2 was serving water to the oxen, the petitioner peeped out of the window, made sexual gestures and also threatened respondent no.2 and her husband that he would take care of the complaint lodged by her husband against him before the Municipal Council. It is also alleged that the petitioner pelted bricks and cement debris towards respondent 3 crwp197.26.odt no.2. The matter was reported to the police and the offences under Sections 354, 509, 504 and 506 of the Indian Penal Code (for short “IPC”) came to be registered against the petitioner. After completion of investigation, the charge-sheet came to be filed. 4. The petitioner applied before learned JMFC Court, Akot for discharge. However, the said application came to be rejected. An unsuccessful attempt was also made before the learned Additional Sessions Judge who also rejected the revision application filed by the petitioner. Hence, this petition. 5. Learned counsel for the petitioner vehemently submits that for the offence punishable under Section 354, there has to be use of criminal force or assault. According to him, considering the allegations in the FIR, no criminal force has been used with intent to outrage the modesty of respondent no.2. It is also contended that there are no details and specifications of the gestures and sexual overturns made by the petitioner. The FIR is vague and lacks material particulars as to how the offences under Section 354 and 509 are made out. According to him, the trial Court as well as the revisional Court failed to consider these aspects. He further submitted that this is a fit case for discharge. To buttress his 4 crwp197.26.odt submission, learned counsel for the petitioner seeks to rely upon the decision of the Delhi High Court in the case of Varun Bhatia vs. State and another (2023 SCC OnLine Del. 5288). 6. Per contra, learned APP for the State assisted by learned counsel for respondent no.2 objected to the petition on the ground that there is sufficient material to proceed against the petitioner. Section 239 of the CrPC speaks about the availability of sufficient material to frame charge, which is palpable from the charge-sheet. The scope of discharge is limited to the FIR and the documents produced along with it and therefore, the learned trial Court has rightly considered that there is material to frame charges against the petitioner. Hence, they seek dismissal of the petition. 7. Having heard the learned counsel for the respective parties and having gone through the orders impugned, it appears that the house of respondent no.2 is behind the house of the petitioner and there are windows at the back side of the house of the petitioner. The FIR depicts that there are allegations against the petitioner that he often used to make gestures and sexual overtures towards respondent no.2. The FIR further depicts that, on 09.10.2020, at about 8.30 am, when respondent no.2 went to 5 crwp197.26.odt serve water to the oxen, the petitioner called respondent no.2 through the window and made sexual overtures and gestures. He also threatened her that he will take care of them as they have lodged the complaint against him with Municipal Council. He also threw bricks towards her; however, she managed to escape the said assault. 8. Perusal of the orders of the learned JMFC as well as learned Additional Sessions Judge depict that the police report and the documents attached to it reveal that there are allegations that the petitioner made sexual overtures and gestures, assaulted and threatened respondent no.2. Therefore, there is sufficient material to proceed against the petitioner. 9. It is a settled position of law that while considering a discharge application, the Magistrate has to consider the material in the charge-sheet. If it appears to the Magistrate that the charges are groundless, only then the accused can be discharged. The provision of discharge from the trial before the learned JMFC is contemplated under Section 239 of the IPC. Section 239 reads thus: “239. When accused shall be discharged. - If, upon considering the police report and the documents sent with 6 crwp197.26.odt it under Section 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused, and record his reasons for so doing.” 10. From the aforesaid, it is evident that the trial court is enjoined with the duty to apply its mind at the time of framing of charge and should not act as a mere post office. The endorsement on the charge-sheet presented by the police as it is without applying its mind and without recording brief reasons in support of its opinion is not countenanced by law. All that is required at this stage is that the Court must be satisfied that the evidence collected by the prosecution is sufficient to presume that the accused has committed an offence. Even a strong suspicion would suffice. In the case of Varun Bhatia (supra) relied upon by the counsel for the petitioner, the High Court of Delhi has observed that the fundamental basis for forming an opinion regarding the framing of charges revolves around determining whether there is adequate evidence on record to establish, prima facie, the commission of an offence. A ‘prima facie’ case would imply that there must be enough material or evidence that, when viewed at its face value, gives rise to a reasonable suspicion that the accused may have 7 crwp197.26.odt committed the alleged offence. Another important factor to be considered is the sufficiency of material on record. 11. Thus, the Courts have to see as to whether the material placed on record is sufficient enough to establish a prima facie case against an accused and justify initiation of trial against an accused. Now, let us turn to the facts of the present case. The question for consideration is whether the learned JMFC as well as the learned Additional Sessions Judge have committed an error in rejecting the application for discharge filed by the petitioner. 12. The submission of the learned counsel for the petitioner is that the offence under Section 354 is not made out. According to him, there is no use of assault or criminal force. Therefore, the offence under Section 354 cannot be attracted against the petitioner. 13. Section 354 reads as under: “354. Assault or criminal force to woman with intent to outrage her modesty.—Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will there by outrage her modesty, shall be punished with imprisonment of either description for a term which shall not be less than one year but which may extend to five years, and shall also be liable to fine.” 8 crwp197.26.odt 14. Whereas, criminal force is defined under Section 350 and assault is defined under Section 351 of the IPC, which are reproduced as under: “350. Criminal force.—Whoever intentionally uses force to any person, without that person's consent, in order to the committing of any offence, or intending by the use of such force to cause, or knowing it to be likely that by the use of such force he will cause injury, fear or annoyance to the person to whom the force is used, is said to use criminal force to that other.” “351. Assault.—Whoever makes any gesture, or any preparation intending or knowing it to be likely that such gesture or preparation will cause any person present to apprehend that he who makes that gesture or preparation is about to use criminal force to that person, is said to commit an assault Explanation.—Mere words do not amount to an assault. But the words which a person uses may give to his gestures or preparation such a meaning as may make those gestures or preparations amount to an assault.” No doubt, for making out a case under Section 354, the prosecution has to demonstrate that there is use of criminal force or assault by the accused with intent to outrage the modesty of a woman. 9 crwp197.26.odt 15. If this legal position is to be applied to the facts of the present case, it is revealed that there are allegations made by respondent no.2 that the petitioner was making gestures and sexual overtures towards her. It is further alleged that on the day of incident, the petitioner, apart from making sexual overturns, threw bricks from the window towards respondent no.2. Assault does not necessarily require physical contact that causes hurt. Even a gesture intending or preparation intending or knowing it to be likely that such gesture or preparation will cause any person present to apprehend that by such gesture, the offender is about to use criminal force will amount to assault. This act of the petitioner comes within the definition of assault. In the present case, the allegation made against the petitioner is of throwing bricks at respondent no.2. Though, criminal force was not used by the petitioner but certainly, the allegations speak of assault. Whether such assault was done by the petitioner with intent to outrage the modesty of respondent no.2 is a matter of trial. Therefore, I do not find force in the argument of the learned counsel for the petitioner that the ingredients of assault are missing. 16. On facts, the decision in the case of Varun Bhatia (supra) relied upon by the learned counsel for the petitioner will 10 crwp197.26.odt not be helpful to his case. In that case, the accused therein was charged with Section 509 of the IPC for using certain objectionable words against the complainant. After examining the material available on record, the Delhi High Court held that those words were not sufficient to constitute the offence punishable under Section 509 of the IPC. In the present case, there are allegations of repeated gestures and overtures towards the complainant as well as allegations of throwing bricks and cement debris towards the complainant. Thus, it is not the case here that the petitioner merely used one singular objectionable word while addressing the complainant and for that reason, the judgment of the Delhi High Court will not be applicable to the present case. 17. The charge-sheet indicates that there are allegations against the petitioner that he was making gestures and sexual overtures towards respondent no.2 and thereafter, he started throwing bricks at her. Thus, the trial Court as well as the revisional Court have rightly observed that there is material against the petitioner to frame charges. No perversity can be found in the order of the trial Court as well as the Sessions Court. The defence of false implication on account of civil dispute between the petitioner and complainant family is a matter of trial. 11 crwp197.26.odt Hence, the petition stands dismissed. Needless to mention that the observations made herein are prima facie in nature, limited to the extent of deciding the present writ petition and the trial Court shall not get influenced by the same. Rule discharged. (M.W. CHANDWANI J.) Wagh Signed by: Mr. S.R. Wagh Designation: PA To Honourable Judge Date: 21/09/2026 19:28:03