Hugging without sexual intent is not an offence argues counsel for Brij Bhushan

New Delhi [India], August 9 : The counsel for BJP MP Brij Bhushan Sharan on Wednesday argued on the point of charges in sexual harassment case that hugging or touching a woman without a sexual intent is not an offence.
The counsel also submitted before Rouse Avenue Court on the point of jurisdiction and limitations in the matter. He said the allegations are time barred.
Additional Chief Metropolitan Magistrate (ACMM) Harjeet Singh Jaspal heard the arguments advanced by advocate Rajiv Mohan, counsel for Brij Bhushan Sharan Singh.
The matter has been listed for further arguments on Thursday.
This case has been registered on complaint by women wrestlers. Delhi police filed a charge sheet against Brij Bhushan Sharan Singh and Vinod Tomar.
Advocate Rajiv Mohan submitted that the chargesheet has been filed on the basis of allegations levelled by six wrestlers.
Section 218 CRPC says for each offence there shall be separate chargesheet, the counsel argued.
He also raised the objection in relation to the jurisdiction in the matter. He argued that arguments on jurisdiction and limitation can be heard on the stage of charge.
The counsel further submitted, "If we take these allegations, Indian jurisdiction only lies in three of these allegations."
Section 188 CrPC has explicit bar. All allegations/offences that are committed outside India, this court won't have jurisdiction untill the requisite sanctions come in, Advocate Rajiv Mohan argued.
He submitted that in the instances of Delhi, court has the jurisdiction.
The place of enquiry and trial are specific in CrPC. Within India, territorial jurisdiction lies at the place of instances, unless it's a case of continuing offence, he submitted.
Meanwhile, he further argued that the offences like outraging the modesty, rape and murder can't be termed as continuing offences. These are momentary offences, he added.
He also submitted that two offences are related to Ashoka Road and Siri Fort. Offence of Siri Fort is only of hugging.
Further, he submitted that suddenly touching a woman without a criminal force or sexual intent doesn't is not an offence.
Advocate Rajiv Mohan also raised the point of delay in complaint and therefore the limitation. He submitted that complaint is barred by time, no statement is there to overcome the bar of limitation...." saying I was worried about my career is not a reasonable ground to overcome the bar."
He further submitted on the criminal intent and argued that the wrestling is such an event, mostly coaches are male, female coaches are rare. If a coach out of joy, after an achievement hugs a player, it can't fall under the category of offence.
On the point of jurisdiction, the counsel said if we see the complainant and their allegations, all the seven allegations are seen in India. There are three in Delhi, Bellary and Lucknow.
Section 4 CrPC gives extra territorial jurisdiction to the court. However, there is a bar on section 4 of section 188 CrPC.
The offences committed outside India cannot be tried by the court due to the lack of sanction under section 188 CrPC, the counsel argued.
He further submitted that in this light, complainant's one allegation of Mongolia cannot be tried in India.
On the point of incident of Bellary, Karnataka, he argued that the place of inquiry or trial from section 176 to 188 crpc specifies which trial to take place where.
He further submitted that if it is a continuing offence then wherever the offence is committed can be tried. But offence of molestation, rape, etc. are momentary offence. Offence of outraging modesty and using of criminal force, these offence cannot be turned into continuing offence, he argued.
Section 188 CrPC limits that the offence committed beyond India cannot be tried. Bellary and Lucknow court can try the matter for offences committed there, the counsel argued.
He also raised the point of delay in filing the complaint. The complaint was lodged in April 23, offences are of 2017 and 2018. The allegations of Sirifort is hugging without any sexual advances.
It was also submitted that if the stage would have been before 2013 only 354 applied but after 2013 two provisions was created and Supreme Court has said that specific provision would prevail (354A) IPC. Touching does not involve criminal force or assault, the counsel argued.
"There is no statements of the complainant in the chargesheet. These cosmetic grounds won't hold that I was under threat. If you are moving freely and then to for 5 years you did not come forward then saying that you were under threat is not a valid explanation", he submitted.
The event is such and if a male coach hugs some player out of anxiety is not an offence. Hugging without any sexual advance and is of 2017 and 2018 and offence of touching is barred under section 468 crpc and there are no explanation for Section 473 Crpc, the counsel submitted.
Offence have not been explained in the chargesheet. Until 239 stage is not complete, trial cannot be proceeded, he added.
He also submitted that before investigation, an inquiry was done by the sports ministry. The complaint was not substantiated.
He referred to a decision of High court that has said in a judgment of 2023 that if a matter is filed before a sexual harassment committee and the complaint was not corroborated, the accused cannot be prosecuted against on the same ground.