Bombay High Court
Lalit Nandlal Bais vs The State Of Maharashtra Through ... on 11 October, 2023
Bench: Vinay Joshi, Valmiki Sa Menezes
2023:BHC-NAG:14992-DB
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1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL APPLICATION (APL) NO.817 OF 2023
APPLICANTS : 1 Lalit S/o Nandlal Bais,
Aged about 50 years, Occ-Business,
R/o Khat Road, Bhandara, Tahsil &
District-Bhandara.
2 Abhay S/o Ramesh Bhagwat,
Aged about 49 years, Occ-Business,
R/o Ramayan Nagari, Khat Road,
Bhandara, Tahsil & District-
Bhandara.
3 Dr. Gopal S/o Satyanarayan Vyas,
Aged about 48 years, Occ-
Orthopedic Surgeon, R/o Takiya
Ward, Bhandara, Tahsil & District-
Bhandara.
4 Manish S/o Omprakash Saraf,
Aged about 47 years, Occ-Business,
R/o MIDC, Wardha, Tahsil &
District-Wardha.
5 Sameer S/o Kamlakar Deshpande,
Aged about 55 years, Occ-Business,
R/o Surendra Nagar, Nagpur, Tahsil
& District-Nagpur.
..VERSUS..
RESPONDENT : The State of Maharashtra
through Police Station Officer, Police
Station Umred, District-Nagpur.
-----------------------------------------------------------------------------------------
Mr A. A. Naik, Advocate for Applicants.
Mr S. S. Doifode, Addl. P. P. for Non-Applicant/State.
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CORAM : VINAY JOSHI AND
VALMIKI SA MENEZES, JJ.
RESERVED ON : 9th OCTOBER, 2023
PRONOUNCED ON : 11th OCTOBER, 2023.
JUDGMENT : (PER : VALMIKI SA MENEZES, J.)
. Admit. By consent of the parties, this application
invoking inherent jurisdiction of this Court under Section
482 of the Code of Criminal Procedure, 1973 for quashing
First Information Report (FIR) No.0300 of 2023 dated
31.05.2023 registered at Umred Police Station, Nagpur
Rural for the offences punishable under Sections 294 and
34 of the Indian Penal Code, 1860, Sections 110, 131A,
33A, 112 and 117 of the Maharashtra Police Act, 1951 and
Section 65(e) of the Maharashtra Prohibition Act, 1949, is
heard and disposed of finally.
2. The facts in brief, that have led to the filing of
the present application, are as under :
a) That Police Sub-Inspector Ashish Morkhade
received secret information on 31.05.2023 that an
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obscene dance was being performed at a Banquet Hall
in Tiger Paradise Resort and Water Park, Tirkhura.
The secret information revealed that the audience,
who were watching the scantily dressed women
performing an obscene dance, were showering dummy
currency notes on these women.
b) Based upon the secret information, Police
Officials raided the said Banquet Hall and thereafter,
lodged FIR pursuant to the complaint of the said
Police Officer.
A reading of the FIR reveals that after the Police
Officials entered the Banquet Hall, they witnessed
that the six women were wearing short clothes and
dancing indecently, while the audience/onlookers
were showering fake notes of denomination of Rs.10/-
on these women. The FIR further records that some of
the onlookers were consuming alcohol. On asking the
onlookers for their names, twelve names of the
onlookers were disclosed, of which, the Applicant
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Nos.1 to 5 are respectively Accused Nos.1, 2, 3, 5 and
6 as arrayed in the FIR.
c) The FIR further reveals that three bottles of
foreign liquor were found with Arun Abhay Mukharji
(Accused at Serial No.12 in FIR) at the Banquet Hall
apart from Disc Jockey (DJ) Music System, an Audio
System, Sound Level System, Laptops and other
equipment. These were attached under seizure
panchanama along with the dummy notes.
d) The six dancers were also roped in the FIR as
Accused Nos.13 to 18.
The FIR records that based upon these facts, the
five Applicants, amongst the Eighteen Accused have
committed offences punishable under Section 294 of
the IPC read with Section 34, Sections 110, 131A,
33A, 112 and 117 of the Maharashtra Police Act, 1951
(hereinafter referred to as "Police Act") and under
Section 65(e) of the Maharashtra Prohibition Act,
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1949 (hereinafter referred to as "Prohibition Act").
3. The four main grounds as raised in the
application seeking quashment of the FIR and as argued by
the learned Advocate for the Applicants Mr Akshay Naik
are :
a) That, the specific ingredients of Section 294 of
the IPC have not been made out on a plain reading of
the FIR, in that there is no reference in the facts that
any person or the complainant experienced a sense of
annoyance by witnessing the dancing girls.
b) That, the dance performance was within a
Banquet Hall of a Resort, which was neither in a
public place nor open to public view for any member
of the public to feel a sense of annoyance.
c) That, the acts complained of by the women, who
were performing a dance, could not be termed as
obscene acts as referred to Section 294 of IPC; That
merely because a Police Officer, in his opinion, feels
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these women were scantily dressed or dancing with
movements which he felt were obscene, an offence
cannot be said to be made out under that provision of
the IPC.
d) That, the offences under Sections 110, 131A,
33A, 112 and 117 of the Police Act and under Section
65(e) of the Prohibition Act, have also not been made
out against the Applicants for the following reasons;
There is no specific material against the
Applicants in the FIR that the Applicants indulged in
sale or purchase or possession of foreign liquor and the
statement in the FIR only refers to liquor bottles being
found in the Banquet Hall. Thus, provisions of
Section 65(e) of the Prohibition Act would not be
attracted.
Further, that the provisions of Sections 110 and
112 of the Police Act would not apply since the
Banquet Hall was not a "public place", as defined
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under Section 2(13) of the Police Act and any event,
there is no allegation in the FIR that the Applicants
had indecently exposed themselves or used indecent
language or misbehave to attract the provisions of
Sections 110 and 112 of the Police Act; That the
provisions of Section 131A could be applied only in
respect of a place of public entertainment or a place in
which a dancing school is conducted or for eating
house, and not to a Banquet Hall taken on hire for
private use; and further that the provisions of Section
33A having been struck down as ultra vires by this
Court and not being on the statute book, could not
have been invoked.
4. In support of the above contentions/submissions,
the Applicants have relied upon a Division Bench
Judgment of this Court interpreting the provisions of
Section 294 of the IPC in Amardeep Singh Chudha and
Ors. vs State of Maharashtra, reported in 2016 SCC
OnLine (Bom.) 2286, to contend that the provisions can
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be invoked only where the the premises where offence has
been alleged to have taken place is shown to be accessible
to the public at large, who must have free ingress to such a
place.
To further buttress his argument that the
provisions of Section 294 of IPC do not get attracted to a
case merely because in the opinion of the Police, the
manner in which the girls were dressed or their style of
dancing was obscene or provocative, the learned Advocate
for the Applicants has relied upon a judgment of the
Hon'ble Supreme Court in Indian Hotel and Restaurant
Association (Ahar) and Anr. vs. State of Maharashtra ,
reported in (2019) 3 SCC 429.
5. In answer to the allegations made in the
application and grounds taken therein, the Non-Applicant
filed an Affidavit-in-reply dated 19.07.2023, through the
Police Sub-Inspector, P.S. Umred, Nagpur contending at
Paras 4 and 10 thereof that the entire raid was conducted
on the basis of secret information that an obscene dance
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was being performed by women, who were in short clothes
in the concerned Resort and that, on conducting a raid at
the Banquet Hall, six girls were seen at the Hall in short
clothes, dancing in an indecent manner by making obscene
gestures. The Affidavit further reveals that the customers
were also dancing with the girls and showering dummy
currency notes on them, hence substantiating the filing of
the FIR.
6. We have heard the learned Advocate Mr Akshay
Naik for the Applicants and Mr S. S. Doifode, learned
Additional Public Prosecutor for the Non-Applicant/State,
recorded their submissions, and perused the record of the
FIR.
7. The first question which falls for our decision is,
whether the FIR discloses, from plain reading of facts
contained therein, an offence made out under Section 294
of the IPC against the five Applicants herein. To examine
this issue, it would be apposite to quote the provisions of
Section 294 of IPC as under :
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"294. Obscene acts and songs.-- Whoever, to the
annoyance of others,
(a) does any obscene act in any public place, or
(b) sings, recites or utters any obscene song, ballad or
words, in or near any public place, shall be punished
with imprisonment of either description for a term
which may extend to three months, or with fine, or
with both."
8. Before we proceed to examine the ingredients of
this offence, we must be mindful of the fact that Section
294 is included under Chapter XIV of the IPC, being
offences affecting public health, safety, convenience,
decency and morals. Though, the provisions of Section 294
provide a punishment of imprisonment which may extend
to only three months or with fine or with both, and would
otherwise be classified as a non-cognizable offence, the
same has been classified by the legislature to be a
cognizable and non-compoundable offence.
9. For an offence under Section 294 to have been
committed, the Accused has to primarily commit an
obscene act or sing, recite or utter any obscene song, ballad
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or words. It is further a requirement of both, Clauses (a)
and (b) of Section 294, that in both cases, the act should be
committed in a public place or in the case of Clause (b), the
obscene words may also be sung/recited/uttered near a
public place, essentially meaning it is required to be heard
and be audible to any member of the general public.
Section 294 further requires that the obscene act
or the obscene song or words must, after being seen or
heard, be to the annoyance of others, meaning thereby, a
specific complaint should be made by people in the
immediate vicinity of either of these acts.
10. Adverting to the specific statement made in the
FIR, it is clear from a plain reading of its contents that there
is no allegation against the five Applicants that they
themselves, have indulged in any obscene act. It is not the
case of the prosecution that Clause (b) of Section 294 of
the IPC would be attracted, as there is absolutely no
allegation that even the remaining Accused have sung,
recited or uttered any obscene song or words.
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Thus, from a plain reading of the provision of
Section 294, there being no allegation against any of the
Applicants before us that they have indulged in any
obscene act nor there being any specific statement in the
FIR qua the Applicants of obscenity or any act of the like
nature, no offence could be said to be made out on the face
of the FIR.
We take further note of the fact that the only
allegation of what the Police Officials, who have raided the
place, consider to be an obscene act, is the act of the
Accused Nos.13 to 18, who are alleged to have dressed in
short skirts and were dancing in a provocative manner.
However, there is no allegation of similar nature with
respect to the five Applicants, to bring them within the
offence under Section 294 of IPC.
11. This brings us to the second argument of the
Applicants, that the alleged acts of obscenity were not
committed at a "public place". In the light of our discussion
on the ingredients of Section 294 in the preceding
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paragraphs, though this argument may be insignificant, we
would still address it in relation to the facts stated in the
FIR.
The FIR refers to the incident having taken place
in a Banquet Hall at a Resort. Though, there is reference to
the fact that the Applicants amongst other persons present,
had hired one of the rooms in the Resort, the facts stated in
the FIR clearly set out that the alleged obscene act of the
scantily clad women dancing in an obscene manner took
place in a Banquet Hall. There is nothing on record to
establish that the Banquet Hall was an enclosed space, with
restrictive entry and was not open to public access.
12. This Court has dealt with a case having somewhat
similar facts, where the question that arose was whether a
night club/cabaret dance run in an exclusive restaurant for
which the right of entry was reserved on payment of a fee,
could be considered to be a "public place" for the purpose
of Section 294 of IPC. In Narendra H. Khurana and Ors.
vs Commissioner of Police, reported in 2000 (2) Mh.L.J.
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72, this Court has held as under :
"12. We now turn to the second limb of the question
referred to us. In his ruling, in the case of State of
Maharashtra v. Miss Joyce, reported in I.LR. (1973)
Bom. 1299 (supra). Justice Rege has observed that he
has grave doubts as to whether places like Hotel Blue
Nile could be considered to be such a public within
the meaning of Section 294 with an admission fees as
required to be paid for the cabaret shows as was done
in that case. He proceeds to observe that when an
adult person pays and goes to attend such a shows he
runs a risk of being annoyed by the obscenity or being
entertained by the very obscenities according to his
tastes. From these words a doubt is raised, whether
hotels like the one involved in this case are public
places or not.
In our considered view, an enclosed area in a
posh hotel where cabaret dance is performed cannot
be said to be a private place merely by reason that
entry is restricted to persons purchasing the highly
priced tickets and costly food and drinks are served. A
posh hotel is as much a public place as a cinema house.
Entry to a hotel just like a cinema house cannot be
and is not being restricted to anybody. A hotel must
definitely be placed accessible to all except perhaps
subject to reasonable restrictions allowed by law. It
continues to be a public place. If any portion of the
hotel is earmarked for persons who opt to pay a
particular amount, it does not cease to be a public
place for that reason, because without discrimination
anybody will have access on such payment. Therefore,
there is no point in contending that a portion of a
hotel where the only restrictions for entry on some
payments is not a public place. Otherwise, the result
will be that any public place could be made a private
place by enclosing the same and restricting entry to
persons who can afford payment of huge amounts. If
"public place" is determined on the amount of money,
one may have to shell out for securing admission the
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position will be pitiable and it will only tend to
judicial recognition of corruption. If what is
prohibited in a cinema house where people are
admitted for charges within their reach is not taboo for
the rich who could afford to witness such shows for
higher tickets with additional amounts for drinks and
food, the position is really ridiculous. The position
will be that those who could afford enormous amounts
could conduct or witness obscene acts with impunity.
That is not the legal intent. If that principle is
accepted the criterion for deciding a public place will
be the amount that is expended for getting entry. If so
a cinema house also will cease to be a public place if
the ticket charges are enormously increased and it is
provided that consumption of costly food and drinks
on payment is also a must. That is not what the law
intended as the criterion for deciding whether a place
is public or not. If that is the criterion every public
place could be converted into a private place by
restricting entry to rich persons who alone could
afford the luxury. The result will be that any obscenity
which is prohibited to the poor will not be a
prohibited obscenity for the rich. That will lead to a
very unhappy position. So also previous advertisement
of what is going to be performed cannot have the
effect of converting a public place into a private place
or obscenity into something which is not obscene."
13. The Indian Penal Code does not define what is a
"public place". It would, therefore, stand to reason, that for
examining whether a place of occurrence of an offence
under Section 294 would fall within the meaning of the
words "public place", it would be necessary to examine the
facts of each case in relation to the spot or area, where the
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offence is alleged to have taken place. Applying the
reasoning adopted in Narendra H. Khurana (supra) to the
facts of this case, a Banquet Hall, in a Resort, in the absence
of any material on record to demonstrate that it was in
exclusive and private use of the Applicants or any other
Accused persons in this case, must be held to be a "public
place" within the meaning of those words as contained in
Section 294 of IPC.
14. It is the argument of the learned Addl. P. P. that
the provisions of Section 294 would squarely apply to the
facts of the present case, in that, there are clear allegations
by the Police Officer, who has conducted the raid that
secret information had been received from members of the
public that obscene acts were being committed by the
Accused Nos.13 to 18, who were dancing in short skirts and
making obscene gestures; it was further the submission for
the State that the five Applicants, being part of the group of
persons participating in the obscenity would be equally
responsible for the obscene and immoral acts, and the fact
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that there was secret information, belies the complainant's
stand that annoyance was caused to the members of the
public, who had given the secret information. It was further
submitted that the complaint records that the ladies who
were performing a dance were in short skirts and dancing
provocatively and this by itself can be considered an
obscene act under Clause (a) of Section 294.
This submission has been opposed by the learned
Advocate Mr Akshay Naik for the Applicants, who submits
that this is clearly a case of moral policing on the part of the
Investigating Agency, as the law does not permit a
prosecution to be launched merely on the subjective
morality or perception of the complainant as to what acts
constitute obscenity for the purpose of Clause (a) of
Section 294. He further submits that this question has been
dealt with in detail by the Hon'ble Supreme Court in
Indian Hotel and Restaurant Association (Ahar) and Anr.
vs. State of Maharashtra and Ors. reported in (2019) 3 SCC
429, whilst dealing with the challenge to the vires of certain
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provisions of the Maharashtra Prohibition of Obscene
Dance in Hotels, Restaurants and Bar Rooms and
Protection of Dignity of Women (Working therein) Act,
2016 and Rules framed thereunder. Learned Advocate for
the Applicants has further referred to para 8 of that
judgment which deals with Section 2(8) of that Act, where
"obscene dance", which is defined as a dance i.e. obscene
within the meaning of Section 294 of the IPC has been
dealt with, and has submitted that the Supreme Court in
that case has dealt with the arguments of morality, as
submitted by the prosecution in the present case.
15. In Indian Hotel and Restaurant Association
(Ahar) (supra), the question as to what extent can the State
go to imposing "morality" on its citizens has been dealt
with in the below quoted manner :
"77) We would like to deal at this stage with the
argument of morality, as advanced by by Mr Naphade.
The question is to what extent the State can go in
imposing 'morality' on its citizens? In the first
instance, we would take note of certain judgments of
this Court touching upon this aspect....
J APL-817-2023.odt
79) It needs to be borne in mind that there may be
certain activities which the society perceives as
immoral per se. It may include gambling (though that
is also becoming a debatable issue now), prostitution
etc. It is also to be noted that standards of morality in a
society change with the passage of time. A particular
activity, which was treated as immoral few decades ago
may not be so now. Societal norms keep changing.
Social change is of two types: continuous or
evolutionary and discontinuous or revolutionary. The
most common form of change is continuous. This
day-to-day incremental change is a subtle, but
dynamic, factor in social analysis. It cannot be denied
that dance performances, in dignified forms, are
socially acceptable and nobody takes exceptions to the
same. On the other hand, obscenity is treated as
immoral. Therefore, obscene dance performance may
not be acceptable and the State can pass a law
prohibiting obscene dances. However, a practice which
may not be immoral by societal standards cannot be
thrusted upon the society as immoral by the State with
its own notion of morality and thereby exercise 'social
control'. Furthermore, and in any case, any legislation
of this nature has to pass the muster of constitutional
provisions as well. We have examined the issues raised
in the aforesaid context.
95) This provision is to be read with conditions 6, 7
and 8 of Part B. It makes throwing or showering coins,
currency notes or any article or anything which can be
monetized on the stage or handing over personally
such notes, to a dancer is banned and treated as an
offence. Further stipulation in these provisions is that
any tip to be given should be added in the bill only
and is not to be given to the performers etc. The
justification given by the State is that showering of
money etc. is a method of inducement which has to be
curbed keeping in view that Act aims to protect the
dignity of women. According to the respondents,
Section 354A of IPC which is a moral code of the
society and the State is only attempting to preserve
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this moral code by enacting such a provision. We are
of the opinion that insofar as throwing or showering
coins, currency notes etc. is concerned, the provision is
well justified as it aims at checking any untoward
incident as the aforesaid Act has tendency to create a
situation of indecency. Therefore, whatever money,
any appreciation of any dance performance, has to be
given, can be done without throwing or showering
such coins etc. However, there may not be any
justification in giving such tips only by adding thereto
in the bills to be raised by the administration of the
place. On the contrary, if that is done, the person who
is rightful recipient of such tips may be denied the
same. Further, State cannot impose a particular
manner of tipping as it is entirely a matter between an
employer and performer on the one hand and the
performer and the visitor on the other hand. We,
therefore, uphold the provision insofar as it prohibits
throwing or showering of coins, currency notes or any
article or anything which can be monetised on the
stage. However, handing over of the notes to the
dancers personally is not inappropriate. We also set
aside the provision of giving the tips only by adding
the same in the bills."
16. Indian Hotel and Restaurant Association (Ahar)
(supra) makes reference to an earlier judgment of the
Hon'ble Supreme Court in State of Maharashtra & Anr. vs.
Indian Hotel & Restaurants Assn. & Ors. (Civil Appeal
No.2705 of 2006 ) decided on 16.07.2013 and reported in
(2013) 8 SCC 519, wherein the Hon'ble Supreme Court
upheld the judgment of this Court dated 12.04.2006
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striking down the provision of Section 33A of the Bombay
Police Act, 1951 as being ultra vires Article 19(1)(g) of the
Constitution of India. In State of Maharashtra & Anr. vs.
Indian Hotel & Restaurants Assn. & Ors. (supra), the
Hon'ble Supreme Court also dealt with the argument
supporting the maintenance of Section 33A of the Police
Act on the statute book on the basis of morality of the work
of women dancing at Bars, holding thus :
"108. Incongruously, the State does not find it to be
indecent, immoral or derogatory to the dignity of
women if they take up other positions in the same
establishments such as receptionist, waitress or bar
tender. The women that serve liquor and beer to
customers do not arouse lust in customers but women
dancing would arouse lust. In our opinion, if certain
kind of dance is sensuous in nature and if it causes
sexual arousal in men it cannot be said to be more in
the prohibited establishments and less in the exempted
establishments. Sexual arousal and lust in men and
women and degree thereof, cannot be said to be
monopolized by the upper or the lower classes. Nor
can it be presumed that sexual arousal would generate
different character of behaviour, depending on the
social strata of the audience. History is replete with
examples of crimes of lust committed in the highest
echelons of the society as well as in the lowest levels of
society. The High Court has rightly observed, relying
on the observations of this Court in Gaurav Jain Vs.
Union of India[44], that "prostitution in 5 star hotels is
a licence given to a person from higher echelon". In our
opinion, the activities which are obscene or which are
likely to deprave and corrupt those whose minds are
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open to such immoral influences, cannot be
distinguished on the basis as to whether they are
performing in 5 star hotels or in dance bars. The
judicial conscience of this Court would not give
credence to a notion that high morals and decent
behaviour is the exclusive domain of the upper classes;
whereas vulgarity and depravity is limited to the lower
classes. Any classification made on the basis of such
invidious presumption is liable to be struck down being
wholly unconstitutional and particularly contrary to
Article 14 of the Constitution of India.
110. Upon analyzing the entire fact situation, the High
Court has held that dancing would be a fundamental
right and cannot be excluded by dubbing the same as
res extra commercium. The State has failed to establish
that the restriction is reasonable or that it is in the
interest of general public. The High Court rightly
scrutinized the impugned legislation in the light of
observations of this Court made in Narendra Kumar
(supra), wherein it was held that greater the restriction,
the more the need for scrutiny. The High Court
noticed that in the guise of regulation, the legislation
has imposed a total ban on dancing in the
establishments covered under Section 33A. The High
Court has also concluded that the legislation has failed
to satisfy the doctrine of direct and inevitable effect
[See: Maneka Gandhi's case (supra)]. We see no reason
to differ with the conclusions recorded by the High
Court. We agree with Mr. Rohatgi and Dr. Dhawan
that there are already sufficient rules and regulations
and legislation in place which, if efficiently applied,
would control if not eradicate all the dangers to the
society enumerated in the Preamble and Objects and
Reasons of the impugned legislation."
17. In Pawan Kumar vs. State of Haryana and Ors.,
reported in (1996) 4 S.C.C. 17, the Hon'ble Supreme
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Court was dealing with the question whether an Accused
convicted under Section 294 of IPC could be said to have
committed an act of "moral turpitude" to justify his
dismissal from Government Service. Whilst dealing with
the issue, the Hon'ble Supreme Court also dealt with the
ingredients to be proved for bringing home a conviction
under Section 294 of IPC and has held as under :
"9. In order to secure a conviction the provision
requires two particulars to be proved by the
prosecution, i.e. (i) the offender has done any obscene
act in any public place or has sung, recited or uttered
any obscene songs or words in or near any public place;
and (ii) has so caused annoyance to others. If the act
complained of is not obscene, or is not done in any
public place, or the song recited or uttered is not
obscene, or is not sung, recited or uttered in or near
any public place, or that it causes no annoyance to
others, the offence is not committed. The measure of
sentence of three months impossible thereunder
suggests that such offence is tribal summarily under
Section 260 of the Code of Criminal Procedure, it
being not an offence punishable with death,
imprisonment for life or imprisonment for a term
exceeding two years. When the accused does not plead
guilty, Section 264 of the Code of Criminal Procedure
enjoins upon the Magistrate that he shall (i) record the
substance of the evidence; and (ii) a judgment
containing a brief statement of the reasons for the
finding. Conversely put, when the accused pleads
guilty, the Magistrate may not be obliged to write a
judgment containing a brief statement of the reasons,
but the Magistrate is not absolved of the obligation to
record the substance of the evidence. Otherwise, it
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would be difficult to conceive as to what could the
accused have pleaded to. His plea of guilt is an
admission to whatever factual data the prosecution lays
before the court about the commission of the offence.
Pleading guilty by the accused to the violation of a
provision of law is no plea at all, as he would have to be
confronted with the substance of the allegation, in
order to enter upon a plea, one way or the other. When
the substance of the allegations is not put to the
accused , his entering any kind of plea is no plea legally,
due to the non observance of such procedural
requirement of utmost importance.
13. We had required of the respondents to produce
before us the copy of the Judgment whereby the
appellant was convicted for the offence. As was
expected only a copy of the institution/summary
register maintained by the court of the Chief Judicial
Magistrate, Bhiwani was placed before us showing that
the appellant on 4-6-1980 was imposed a fine of
Rs.20/-. A copy of the treasury challan supporting that
the fine paid was deposited by the Chief Judicial
Magistrate the same day has also been produced. The
copy of summary register neither discloses the
substance of the allegations put to the appellant, nor
the words in which the plea of guilt was entered. It is of
no significance that the appellant treats himself a
convict as he had pleaded guilty. Ex facie it only shows
that the entry concerns F.I.R. No.231/3-6-1980 under
Section 294 IPC. Therefrom it is difficult to discern the
steps taken in the summary trial proceedings and what
had the appellant pleaded to as guilty, whether to the
allegations in the FIR or to the provision of the IPC or
any other particular? Mere payment of fine of Rs.20/-
does not go to show that the conviction was validly and
legally recorded. Assuming that the conviction is not
open to challenge at the present juncture, we cannot
but deprecate the action of the respondents in having
proceeded to adversely certify the character and
antecedents of the appellant on the basis of the
conviction per se, opining to have involved moral
J APL-817-2023.odt
turpitude, without satisfying the tests laid down in the
policy decision of the government. We are rather
unhappy to note that all the three courts below, even
when invited to judge the matter in the said
perspective, went on to hold that the act/s involved in
conviction under Section 294 IPC per se established
moral turpitude. They should have been sensitive to
the changing perspectives and concepts of morality to
appreciate the effect of Section 294 IPC on today's
society and its standards, and its changing views of
obscenity. The matter unfortunately was dealt with
casually at all levels.
18. Whilst on the subject, we also quote the
observations of this Court in Narendra H. Khurana (supra)
on the interpretation of the provision of Section 294 of
IPC and the ingredients to be proved to sustain a
conviction. It has been held thus :
"8. At the outset, we must refer to the provision of
Section 294 of Indian Penal Code.
"294. Obscene acts and songs.--Whoever, to the annoyance
of others.
(a) does any obscene act in any public place, or
(b) sings, recites or utters any obscene song
ballad or words, in or near, any public place, shall
be punished with imprisonment of either
description for a term which may extend to three
months or with fine, or with both."
Therefore, the object and scope of the said
provision is intended to prevent a obscene act being
performed in public to the annoyance of public at
large. The essential ingredients of the offence under
J APL-817-2023.odt
this Section are as follows :-
i) an act must have been done in a public
place;
ii) the said act must be obscene; and
iii) the same must cause annoyance to others.
Time and again it is well established that mere
performance of obscene or indecent act is not sufficient
but there must be a further proof to establish that it was
to the annoyance to others. Annoyance to others is
essential to constitute an offence under this Section.
Where there is no evidence recorded about the
language used or act done causes annoyance to
anybody, a conviction under this Section cannot be
sustained. From the wording of this Section it is clear
that annoyance should be caused to the others. This
Section does not limit the scope of the word "others" to
mean the person who is intended victim of the obscene
act. It is enough if the obscene act is committed in
public and causes annoyance to anybody be he the
contemplated victim of the offender or not.
This being the established legal position, let us
now turn to the two rulings of this Court of the learned
Single Judges. Justice Vaidya in his judgment in the
case of State of Maharashtra v. Miss. Joyce reported in
I.L.R.(1973) Bom. 1299, had occasion to deal with
dilemma with which we are dealing with today.
Incidentally, the case arose from the incident which
took place at Blue Nile Hotel. The learned Single
Judge observed that, when an adult person pays and
goes to attend such show he runs the risk of being
annoyed by the obscenities or being entertained by the
very obscenities according to his taste. Some persons so
going may be disappointed with the absence of
obscenities. Even assuming that the hotel where
anybody can buy tickets or seats, is considered to be a
public place, it cannot, therefore be said that the
obscenity and annoyance which are punishable under
Section 294 of Indian Penal Code are caused without
J APL-817-2023.odt
the consent express or implied of the adult persons
attending such cabaret dance on the floor of the hotel.
He further expresses his doubt whether a hotel like
Blue Nile could be considered to be a public place as
contemplated by Section 294 of the Indian Penal Code
when an admission fees is required to be paid for
cabaret shows. He also relied on the unreported
judgment of Justice Rege in Criminal Appeal No. 1541
of 1971 decided on 20-6-1973. Justice Rege in his
judgment observed thus-
"Looking to the wording of the Section, therefore,
the question as to an act being to the annoyance
of the others cannot be considered objectively
without reference to the persons actually
witnessing the act. It cannot be the intention of
the Legislature that even if a particular obscene
act done in a public place is enjoyed by all those
witnessing the same without in any way getting
annoyed thereby, it can still be considered to be
an offence under the Section, if looking at it
objectively, the Court finds that it would have
annoyed others who were not actually present to
witness the said act. In my view, the wording of
Section 294 does not admit of any such a wide
interpretation. The Court will have to find out
from the evidence whether any persons at a given
time witnessing a particular obscene act was
actually annoyed or not."
Taking into consideration the up-till now
established position as reflected by judgments of the
Single Judges referred to above, it appears to be the
rule that wording of Section 294 does not admit of any
wide interpretation than what can be gathered from the
plain reading thereof. In this reference, the learned
Single Judge (S.S. Parkar, J.) has expressed
apprehension that such interpretation may lead to
undesirable consequences especially if we take into
account our cultural thoughts and moral standards of
our civilization. It is indeed true that our society has
not yet come to appreciate such performances or
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conduct in public. However, in our considered view, we
cannot overlook the plain meaning of the legislative
enactment in this regard i.e. the wording of Section
294 of the Indian Penal Code."
19. Fortified by the ratio laid down in the
aforementioned judgments of the Hon'ble Supreme Court
and of this Court, we are constrained to reject the
submissions made by the learned Addl. P. P., both on the
question of claims of the complainant that the girls found
dancing in skimpy clothes were indulging in obscene or
immoral acts as also the submission that the FIR would
disclose that such acts were to be annoyance of others.
20. We are of the considered opinion that the acts of
the Accused Nos.13 to 18 referred to in the complaint/FIR,
namely wearing short skirts, dancing provocatively or
making gestures that the Police Officials consider obscene
cannot be termed to be per se obscene acts, which could
cause annoyance to any member of the public. Whilst
holding so, we are mindful of the general norms of morality
prevalent in present Indian Society and take judicial note of
J APL-817-2023.odt
the fact, that in present times it is quite common and
acceptable that women may wear such clothing, or may be
clad in swimming costumes or such other revealing attire.
We often witness this manner of dress in films which pass
censorship or at beauty pageants held in broad public view,
without causing annoyance to any audience. Surely the
provisions of Section 294 of IPC would not apply to all this
situation and we are unable to countenance a situation
where acts such as the ones referred to in the FIR would be
judged by a Police Officer, who in his personal opinion
considers them to be obscene acts to cause annoyance to
any member of the public. Taking a narrow view as to what
acts could constitute an obscenity would be a retrograde
act, on our part. We prefer taking a progressive view in the
matter and are unwilling to leave such a decision in the
hands of Police Officials.
In any event, there is no averment or allegation
made in the FIR that the five Applicants have indulged in
any acts of obscenity or that any of the remaining Accused,
J APL-817-2023.odt
including Accused Nos.13 to 18 have committed acts of
obscenity that cause annoyance to members of public.
There is no fact stated in the complaint that any specific
person felt a sense of annoyance. Consequently, we hold
that the ingredients of an offence under Section 294 of IPC
are not made out in the FIR/complaint dated 31.05.2023.
21. We shall now deal with the contentions of the
Applicants that the FIR does not disclose the ingredients of
an offence under Sections 110, 112 or Section 131A of the
Police Act or an offence under Section 65(e) of the
Prohibition Act.
Section 65(e) of the Prohibition Act provides for
a penalty for acts of sale or purchase or possession of any
intoxicant such as liquor, in contravention of the provisions
of the Act and Rules made thereunder. There is no
statement alleging that the Applicants were either in
possession or had purchased liquor in contravention of any
licence or any provision or rule of the Prohibition Act.
Though, three bottles of liquor were seized, there is no
J APL-817-2023.odt
averment in the complaint that they were seized from the
possession of the present Applicants. Thus, the offence
under Section 65(e) has not been made out.
22. Section 110 of the Police Act deals with indecent
exposure by a person in a street or public place in a manner
as to be seen from any public place. Section 112 of the
Police Act states that no person shall use in any public place
any threatening, abusive or insulting words or behave with
intent to provoke a breach of peace. There is not a single
averment in the entire FIR, which alleges against the
Applicants any act of indecent exposure or any act of the
use of abusive language such that it would provoke a breach
of peace. Section 131A prescribes a penalty for failure to
obtain a licence under the Police Act in respect of a public
entertainment or a place in which a dancing school is
conducted. This provision would clearly apply only to
occupier of such a place for public entertainment and not
to the Accused Nos.1, 2, 3, 5 and 6 (Applicants herein),
against whom there is no allegation in the complaint that
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they were the owners or occupiers of the Banquet Hall or
even that the Banquet Hall was a place of public
entertainment or used for conducting a dancing school.
Strangely, even though the provisions of Section
33A of the Police Act have been struck down by this Court
in Indian Hotel & Restaurants Assn. as being ultra vires the
Constitution, and that judgment has been upheld by the
Hon'ble Supreme Court in State of Maharashtra & Anr. vs.
Indian Hotel & Restaurants Assn. & Ors. (supra), the FIR
has been also filed under this provision. Considering that
Section 33A is no more on the statute book, the Applicants
cannot be prosecuted under that provision.
Consequently, we are of the considered opinion
that none of the ingredients of Sections 110 and 112 of the
Police Act can be attracted in the present case as there are
no allegations made in the FIR that can substantiate
applying these provisions.
J APL-817-2023.odt
23. For all the reasons stated above, we do not find
that there is any material in the FIR/complaint impugned
in this application on the basis of which the offences under
Sections 294 and 34 of the Indian Penal Code, 1860,
Sections 110, 131A, 33A, 112 and 117 of the Maharashtra
Police Act, 1951 and Section 65(e) of the Maharashtra
Prohibition Act, 1949 can be investigated or prosecuted.
Consequently, we find that this is a fit case to exercise our
inherent jurisdiction under Section 482 of the Code of
Criminal Procedure, 1973 to quash the First Information
Report (FIR) No.0300 of 2023 dated 31.05.2023
registered at Umred Police Station, Nagpur Rural for the
offences punishable under Sections 294 and 34 of the IPC,
Sections 110, 131A, 33A, 112 and 117 of the Maharashtra
Police Act and Section 65(e) of the Maharashtra
Prohibition Act, against the Applicants. We order
accordingly.
(VALMIKI SA MENEZES, J.) (VINAY JOSHI, J.)
TAMBE
Signed by: Mr. Ashish Tambe
Designation: PA To Honourable Judge
Date: 12/10/2023 13:04:55
