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2023 Supreme(Online)(Bom) 17490
BOMBAY HIGH COURT
Bhushan Gawai, J
Nil v. State of Maharashtra
Criminal Application No. 0300 of 2023
For the Appellants/Petitioners: Mr. Akshay Naik
For the Respondents: Mr. S.S. Doifode
The court ruled that the FIR failed to substantiate legal claims of obscenity as it did not meet the necessary criteria of public annoyance or the nature of the venue not being a public place.
Headnote:(A) Code of Criminal Procedure, 1973 - Section 482 - Indian Penal Code, 1860 - Section 294 - Maharashtra Police Act, 1951 - Sections 110, 131A, 33A, 112, and 117 - Maharashtra Prohibition Act, 1949 - Section 65(e) - Application for quashing FIR No.0300 of 2023 due to lack of substantive allegations against Accused. (Paras 1-3, 20-23)
(B) Offences under S.294 IPC require evidence of annoyance to others and that the act must occur in a public place; mere visual perception by the Police does not constitute an offence. (Paras 9, 20)
(C) FIR lacked allegations that the Applicants committed obscene acts or that the venue was a public space, thus failing to state a case under the referenced statutes. (Paras 20-23)
Facts of the case:
FIR registered based on police raid at a Banquet Hall alleging obscene dancing and misuse of dummy notes, but lacked direct accusations against the Applicants.
Findings of Court:
The FIR was quashed as it did not substantiate claims under IPC and Maharashtra laws due to absence of evidence establishing a public nuisance or relevant acts by Applicants.
Issues: Whether FIR disclosed a cognizable offence against Applicants based on the alleged obscenity of dance within a private venue.
Ratio Decidendi: Where no specific instance of annoyance is reported by actual witnesses, and acts deemed obscene conflict with contemporary societal standards, charges under S.294 IPC were deemed legally insufficient.
Result: FIR quashed.
1. Admit. By consent of the parties, this application invoking inherent jurisdiction of this Court under S.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 S.294 and S.34 of the Indian Penal Code , 1860, S.110, S.131A, S.33A, S.112 and S.117 of the Maharashtra Police Act , 1951 and S.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 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 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 S.294 of the IPC read with S.34, S.110, S.131A, S.33A, S.112 and S.117 of the Maharashtra Police Act , 1951 (hereinafter referred to as "Police Act") and under S.65(e) of the Maharashtra Prohibition Act , 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 S.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 S.294 of IPC; That merely because a Police Officer, in his opinion, feels 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 S.110, S.131A, S.33A, S.112 and S.117 of the Police Act and under S.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 S.65(e) of the Prohibition Act would not be attracted.
Further, that the provisions of S.11
