2005 Supreme(Bom) 462

IN THE HIGH COURT OF BOMBAY
Santosh Laxman Nayak
Versus
State of Maharashtra
Decided Date: 04/04/05

Headnote:Rule 225 - Bar and restaurant raided - Quashing of FIR - Plea - Rule 225 can be exercised by only Licensing Authority - Held - Only Commissioner is authorised to use power under Rule 225, police has no jurisdiction over exercising power under Rule 225 of Rules. - The Advocate further pointed out that under Rule 225 that the power to inspect and give warning is vested in the licensing authority whenever licensing authority is present during amusement. In the present case neither of the actions complained of is taken by the licensing authority. Therefore, according to the petitioners, all actions taken by the alleged raiding party are without authority of law.

       Indian Penal Code, 1860 - Sections 292 and 294 - Obscene acts and songs - Raid in restaurant s and bars - FIR - Charges under Sections 292 and 294, IPC - Quashing of proceedings sought - Section 294 refer s to causing of annoyance - None of witnesses got annoyed - Collective statements not cause any offence. - First offence to be examined is under Sections 292 and 294 of Indian Penal Code.

       (a) On plain reading of sections of the offences in Indian Penal Code, it reveals that offence under Sections 292 and 294, what is the crux of such offences is obscenity leading to causing annoyance. Offence under Section 292 is on account of sale etc. of obscene books, and hence cannot be attracted. The crux as far as Section 294 is concerned, is "causing annoyance to other" due to obscene acts in public place or signs, recitals or utterance of obscene song, ballad or words.

       (b) Now, it has to be seen whether offence under Sections 292 and 294 is spelt out. What these officers have stated as can be read out from the plain reading on what has been stated by these two witnesses.

       (c) All other witnesses whose statements are recorded in support of this plea do primarily state two things, (i) that they have paid fee for entry, and (ii) that the girls were dancing and that they were paid the tips which they used to collect from the customers and that they used to exhibit in an obscene manner.

       (d) Two Police Officers whose statements are the principal evidence of such fact do not contain any imputations whatsoever to the effect that the language-words employed in song sung, type of acting or postures exhibited by the accused girls did cause annoyance to the viewers. It is the opinion of the concerned Police Officer about the incident is what they have stated even without themselves being annoyed. Neither of the witnesses state about being annoyed due to exhibition of alleged obscene dancing. Thus these witnesses do not support commission of an offence either under Section 292 or 294 whatsoever.

       (e) The collective effect of these statements and the statements of the Police Officers and witnesses as mentioned earlier as well even on accepting this to be true, do not constitute commission of any offence whatsoever under Sections 292 and 294 of Indian Penal Code.

       Bombay Police Act, 1951 - Sections 33(x), 151 and 131 Criminal Procedure Code, 1973, Section 193 Cognizance of officer Licence terms violated FIR sought to be quashed Plea, offences not cognizable Held, very cognizance by police would be competent unless ingredients under Section 151 of Bombay Police Act are complied with as a precondition Not compliance of provision. It would reveal from the text of Section 151 of Bombay Police Act quoted above, that it is imperative on Police Officers to essentially take cognizance unless two conditions are fulfilled (i) that the offence has occasioned serious mischief and (ii) that has not been desisted from in spite of warning and in absence of these two stipulations if directed by the Competent Officer or Court. In the present case, the charge-sheet does not contain a single line or narrating compliance of pre-requisite as given in Section 151. All that it reveals is that the very cognizance by the police would be competent unless the ingredients given in Section 151 of Bombay Police Act are complied with as a condition precedent for taking cognizance.

       Bombay Prohibition Act, 1949 - Sections 81, 84, 77-A and 66 Bars and restaurants raided Charges included serving liquor Violation of stipulation of barred provisions Petitioner a licensee cannot be charged for illegally possessing foreign and country liquor under Section 66(1)(b) of B.P. Act No offence made out. The offence punishable under the provisions of Bombay Prohibition Act imputed is in relation to serving of liquor on the table, storing the liquor other than in the licensed premises and in relation to violation of stipulation as to sell liquor to other than the permit holders. All these imputations have got to be very specific namely bringing on record the description of licensed premises and recording the statement of witnesses to whom the liquor was served. In fact, all the witnesses who are amongst the customers found sitting in eating house have stated in echo that they were not sitting there for drinking. On the basis of what is demonstrated by the petitioner on the basis of imputations contained in the charge-sheet and the evidence produced by the police on record, is such that even if contents of evidence collected by police are disputed, and are considered to be true, and also adequate, those does not reveal that any offence whatsoever under the Bombay Prohibition Act too has been made out.