Hugging without sexual intent is not an offence, Brij Bhushan tells court

Outgoing Wrestling Federation of India (WFI) chief and BJP MP Brij Bhushan Sharan Singh, an accused in a case of alleged sexual harassment of women wrestlers, submitted in a Delhi court that “hugging or touching a woman without sexual intent is not an offence”.

Brij Bhushan's submission in the court of Additional Chief Metropolitan Magistrate Harjeet Singh Jaspal, came on the first day of a hearing on Wednesday to decide if charges need to be framed against him in the case.

Brij Bhushan's counsel Rajiv Mohan submitted that the former WFI chief hugged the wrestlers as he took pride in their performance.

“They were someone he knew for many years and have mentored them. Winning a medal was a moment of pride for the country and that hug was just an expression of his happiness. This is why we maintain that he had no intent of sexual harassment.”

Mr. Mohan also told the court that as per Section 188 of Code of Criminal Procedure (CrPC), the trial against his client cannot be initiated without prior sanction by Central government. He maintained that the Magistrate can only take cognisance of the crime but cannot proceed with the trial.

Another submission was that if an internal committee or departmental inquiry conducted against Mr. Singh had exonerated him or if offences are not substantiate, then no criminal proceedings can take place against him.
No arguments were made by the State in the trial which is expected to continue till August 11.

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.

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."

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.

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.

The court last month granted bail to Brij Bhushan and co-accused Narendra Tomar with conditions.

Several Olympic and World Championship medal-winning wrestlers including Sakshi Malik, Vinesh Phogat, Bajrang Punia, and Sangeeta Phogat, had protested in New Delhi demanding the arrest of Mr. Singh for allegedly sexually harassing several women grapplers, including a minor.

The Delhi Police only filed an FIR after the intervention of the Supreme Court last month. A 1,000-page chargesheet by police accused Mr. Singh and suspended WFI official Mr. Tomar of offences like outraging modesty, making sexually coloured remarks, stalking, and criminal intimidation.