JUDGMENT - KAKADE P.V., J.:—This proceeding has come to us for adjudication by way of reference made by the learned Single Judge (S.S. Parkar, J.) by the order dated 19-9-2002 wherein he held the question which arose in the said petition was of great and general importance and, therefore, it was desirable that it should be placed for hearing before a larger Bench. The learned Single Judge also raised a question for consideration for this larger Bench and directed the matter be placed before the Honble the Chief Justice for referring it to a larger Bench and that is how we are seized with this matter.

2. We have heard for Shri A.G. Sabnis with Shri S.P. Dalal for the petitioners and Shri P. Janardhanan, Addl. Advocate General with Smt. P.H. Kantharia, A.P.P. for the State.

3. By this petition, the petitioners sought quashing of the F.I.R. No. 206 of 1999 dated 7-7-1999 and all proceedings in Criminal Case No. 18/P/2000 pending in the Metropolitian Magistrates 37th Court, Esplanade, Mumbai for the offence under section 294 of the I.P.C.

4. The facts giving rise to the petition, in a nutshell, are thus—

The petitioners are running restaurant called “Blue Nile Restaurant” at Colaba, Mumbai. The raid was arranged on the restaurant in the night of 7-7-1999 were cabaret dance was going on and in the course of the dance, the girls were found exposing their private parts and, therefore, the prosecution was lodged. It is the case of the petitioners that the license was granted to them for cabaret dance and the performance was discontinued after the night of the raid. It was urged that prosecution cannot sustain under section 294 of the I.P.C. as there was no annoyance caused to the others which is one of the main ingredients of the offence. It is further pointed out from the charge-sheet that no witness has stated that he was annoyed. Further, reliance was placed on the judgments of the Single Judges of this Court taking the view that cabaret dance performance, exposing even private parts, would not amount to obscenity within the meaning of section 294 of I.P.C. Reliance was also placed on the license which was granted to the petitioners for cabaret performances.

5. The petitioners put reliance strongly on two judgments of this Court delivered by the learned Single Judges on the said point. Reference was made mainly to the judgment in the case of (State of Maharashtra v. Miss Joyce)1, reported in I.L.R. 1973 Bom. 1299. Secondly, reliance was placed on the unreported judgment delivered by Justice Rege on 3-9-1984 in (Criminal Application No. 782 of 1984)2. In the aforesaid judgments, it was held that when a adult person goes to such shows he runs the risk of being annoyed or being entertained by the very obscenities according to his taste. It was further held that the person at a given time witnessing obscenity must be actually annoyed and it was observed that in the absence of special law where cabaret shows are held on the floors of hotel in which adult people are attending on payment, prosecution cannot contend that such cabaret shows come within the purview of section 294 of the I.P.C. having regard to the provision of sections 87 and 88 of the I.P.C. pertaining to an act done by consent in good faith for persons benefit.

6. Referring to these observations, the learned Single Judge, in this petition was of the view that no doubt that section 294 of the I.P.C. required that there must be annoyance to others caused due to obscene performance, however, the interpretation which is given by the learned Single Judges in the above noted judgments was likely to lead to undesirable consequences because, according to him, the words “to the annoyance of others” used in section 294 cannot be given narrow meaning because it is generally known that the persons who go to enjoy such performances or cabaret dances are interested in the performances of the kind which are exhibited in such restaurants, however obscene they may be. Therefore, the learned Sin

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