Sharda Prasad Sinha v. State of Bihar

BHAGWATI, J. There is a club in Patna called Bankipore Club. The appellant is the Honorary Secretary of that Club. It appears that at about 10.25 p.m. on 31st December, 1975 when the New Year eve was being celebrated at the Club, a raid was carried out by the Assistant Commissioner of Excise, Inspector of Excise and Sub-lnspector (Excise) and it was found that two women and five men were singing and dancing in the club premises. The Excise Inspector filed a complaint against the appellant o~ 2nd January, 1976 charg-ing him with having committed offences under Section 54(1) (a) and Section 57 (c) of the Bihar and Orissa Excise Act 1915. The alle-gations on the basis of which the complaint was filed are material and we may set them out in extenso :

"A Cabaret dance with women was in progress at Banki-pore Club, Patna. Two women and five men were singing and dancing. This dance was being performed inside the premises of the Bankipore Club, Patna before a large gather-ing of men and women. I asked Dr. Sharda Prasad Singh, Honorary Secretary and his Manager Sri Banke Bihari Prasad Sinha to show the permission obtained from the District Magistrate or from any other authority for organis-ing the Cabaret dance because licence vending 'Off' foreign liquor is given to Bankipore Club in form 2. The validity period of licence is from 1-4-75 to 31-3-1976 and under Section 25 (2), conducting of Cabaret dances without obtain-ing the prior permission from any proper authority is illegal. Dr. Sharda Prasad Singh who is Honorary Secretary of Patna Bankipore Club did not show any permission of the District Magistrate or of any other authority for conducting the Cabaret and he said that he had not obtained any such permission.

Therefore, Dr. Sharda Prasad Singh, Honorary Secretary is iuilty of the aforesaid offence. It is therefore, praved that Dr. Sharda Prasad Singh, Honorary Secretary be prose-cuted in a Court of law for violating Section 54(a) and Section 57(c) of the Excise Act for which I have been authorised to submit charge sheet to him by the District Magistrate, Patna''.

These allegations according to the appellant did not con~titute any offence and hence the appellant filed an application in the High Court of Patna under Section 482 of the Code of Criminal Procedurn for quashing thi: order passed by the Sub-Divisio!1al Magistrate, Patna taking cognizance of the offences charged agamst the appellant. The High Court by an order dated 4th February, 1976 summarily reject-ed the application. The appellant thereupon preferred an application to the High Court for leave to appeal to this Court, but this applica-tion was also rejected by the High Court on the ground tbat the allegations set out in the complaint made out a prima-facie case against the appellant. This led to the filing of the present. appeal with special leave obtained from this Court.

It is now settled law that where the allegations set out in the complaint or the charge-sheet do not constitute any offence, it is competent to the High Court exercising its inherent jurisdiction under Section 482 of the Code of Criminal Procedure to quash the order passed by the Magistrate taking cognizance of the offence. The ques-tion which, therefore, arises for consideration is whether the allegations set out in the complaint constitute any offence against the appellant. The offences charged against the appellant are under Section 54(1) (a) and Section 57 (cl of the Act. Section 54(1) (a) provides that if any licensed vendor or any person in his employ and acting on his behalf, in contraventioo of Section 25, employs or permits to be employed, in any part of his licensed premises referred to in that section any person under the age of 18 years or any women, he shall be liable to fine which may extend to Rs. 500/-. It is an essential ingredient of this offence that the licensed vendor should employ or permit to be employed any women in any part of his licensed premises in contra-vention of Section 25. Now there can be no doubt that the Bankipore Club was a lice11.sed vendor since it held an "OFF" licence in Form No. 2 given in the Bihar and Orissa Excise Rules. We will also assume for the purpose of argument that the place where the cabaret was going on was a part of the licensed premises. . But in order that the alleged cabaret should constitute an offence under Section 54(1J (a), it was necessary that the women who were performing the cabaret should be employed or permitted to be employed by the Club and moreover that should in contravention of Section 25. Section 25, sub-section (2) provides that no person who is licensed to sell foreign liquor for consumption on his premises shall, without the previous written permission of the Board, during the hours in which such premises are kept open for business,. employ or permit to be employed, either with or without any remuneration, any woman, in any part of such premises in which such liquor is consumed by the public. It will be seen that this provision also comes into play only when a woman is employed or permitted to be employed by a person licensed to sell foreign liquor. More0ver, the employment of the woman should be "in any part of such premises in which such liquor is con-sumed by the public." It is therefore, obvious that there could be no offence under Section 54(1) (a) read with Section 25(2) unless it could be shown by the prosecution that the women who were perform-ing the cabaret were employed . or permitted to be employed by the Club and they were performing the cabaret in a part of the club pre-mises in which liquor was being consumed by the public. We may point out that it was contended on behalf of the appellant that sub-section (2) of Section 25 can have no application in case of a person who is holding an "OFF" licence as distinct from an "ON AND OFF" licence in form No. 3 and since the appellant in the present case was 7-l 546 SCI/76 holding an "OFF' licence, he could not be guilty of contravention of Section 25, sub-section (2) and hence no question of offence under Section 54(1)(a) could ·arise. But we will assume for the purpose of argument that the appellant was covered by Section 25, sub-section (2) and he was bound to obey the prohibition contained in that sub-section. But even so we find that the two essential ingre-dient's of the offence under Section 54 ( 1) (a) read with Section 25 sub-section (2) were not even alleged in the complaint. The com-plaint did not aver that either of t~ two women who were performing the cabaret was employed or permitted to be employed by the club or that liquor was being consumed by the public in that part of the club in which the cabaret was being performed. No offence under Section 54(1)(a) could in the circumstances be said to have been committed on the allegations contained in the complaint.

Equally, it is difficult to see how the allegations contained in the complaint could be said to constitute an offence under Section 57 ( c). That section provides that if any holder of a licence granted under the Act or any person in his employ or acting on his behalf wilfully does any act in breach of the condition of the licence for which a penalty is not prescribed elsewhere in the Act, he shall be liablo to fine which may extend to Rs. 500/-. The complaint does not allege as to which condition of the licence was broken by the club or the appellant in allowing a cabaret to be performed in the club premises. Nor could the learned counsel appearing on behalf of the State point out any such condition of the licence. The allegations contained in the complaint manifestly did not constitute an offence under Sec-tion 57(c).

This was, therefore, dearly a case where the allegations contained in the complaint did not constitute any offence and the Sub-Divisional Magistrate was in error in taking cognizance of it. The High Court in the circumstances ought not to have rejected the application of the appellant for quashing the order of the Sub-Divisional Magistrate.

We accordingly allow the appeal, set aside the order of the High Court and quash the proceedings in Case No. 2(2) 76 Trial No. 285/76 pending in the Court in Mr. S. S. P. Yadav, Executive Magistrato, Sadar Patna. ·