Sharda Prasad Sinha Vs. State of Bihar
[1976] INSC 316 (8 December 1976)
BHAGWATI, P.N.
BHAGWATI, P.N.
GUPTA, A.C.
SHINGAL, P.N.
CITATION: 1977 AIR 1754 1977 SCR (2) 357 1977
SCC (1) 505
CITATOR INFO :
F 1983 SC 67 (9) R 1990 SC 494 (4)
ACT:
Inherent powers of the High Court to quash
proceedings taking cognizance of the offence when the allegations set out in a
complaint or the charge sheet do not constitute any offence--Criminal Procedure
Code 1973 (Act 2 of 1974), s. 482.
HEADNOTE:
Employing or permitting to employ any person
under the age of 18 years or any woman in any part of the licensed premises and
in contravention of s. 25 constitutes an offence u/s. 54(1)(a) of the Bihar and
Orissa Excise Act 1915.
Under s. 25(2) it is an offence when a woman
is employed or permitted to be employed, by a person licensed to sell foreign
liquor, and the employment of such woman should be in any part of the premises
in which such liquor is consumed by the public. Section 57(c) of the Act
provides a penal fine up to Rs.500/for an action done by a licensed holder
wilfully in breach of the conditions of the license for which no penalty is
prescribed elsewhere in the Act.
On a complaint from the Assistant
Commissioner, Excise that the appellant at the time of the raid on the New Year
Eve did not have any permission of the competent authority for conducting a
cabaret dance in the premises of Bankipore Club, Patna (admittedly the holder
of "OFF' foreign liquor licence), the Sub Divisional Magistrate, Patna
took cognizance of the offences complained, namely, violation of s.
54(1)(a) read with s. 25(a) and s. 57(c) of
the Bihar and Orissa Excise Act 1915. A revision filed under s. 482 of the
Criminal Procedure Code 1973 on the ground that the allegations in the complaint
did not constitute any offence warranting the cognizance was dismissed in
limine.
On appeal by special leave to this Court,
HELD: 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 s. 482 of the Code of
Criminal Procedure 1973 to quash the order passed by the Magistrate taking
cognizance of the offence. [359B] The instant case was clearly one 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 and the High
Court also ought not to have, in the circumstances, rejected the application of
the appellant for quashing the order of the Sub-Divisional Magistrate. [360E]
No offence under s. 54(1)(a) could be said to have been committed on the
allegations contained in the complaint in the absence of specific allegation of
the two essential ingredients of the offence under s. 54(1)(a) read with s. 25(2)
and also for want of an averment that either of the 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 the part of the Club in which
the cabaret was being performed. [359D-F] The allegation contained in the
complaint could not be said to constitute an offence under s. 57(c), in the
absence of an allegation 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 and more so, when no such condition in the licence itself could be
pointed out on behalf of the State. [360C-D]
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 203 1976.
358 (Appeal by Special Leave from the
Judgment and Order dated 4-2-1976 of the Patna High Court in Crl. Misc. Petition
No. 441/76.) A.B. Sinha and Pramod Swarup, for the appellant.
S.N. Jha and U.P. Singh, for the respondent.
The Judgment of the Court was delivered by
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 Inspector (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 on 2nd January, 1976 charging him with having
committed offences under Section 54(1)(a) and Section 57 (c) of the Bihar and
Orissa Excise Act 1915. The allegations 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 Bankipore 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 gathering 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 organising 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 obtaining 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 guilty of the aforesaid. offence. It is therefore, prayed that Dr.
Sharda Prasad Singh, Honorary Secretary be prosecuted 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 constitute any offence and hence the appellant filed an application in
the High Court of Patna under Section 482 of the Code of Criminal Procedure for
quashing the order passed by the Sub-Divisional Magistrate, Patna taking
cognizance of the offences charged against the appellant. The 359 High Court by
an order dated 4th February, 1976 summarily rejected the application. The
appellant thereupon preferred an application to the High Court for leave to
appeal to this Court, but this application was also rejected by the High Court
on the ground that 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 question 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 (c) 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 contravention 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 contravention of Section 25.
Now there can be no doubt that the Bankipore Club was a licensed 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(1)
(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 th.e 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. Moreover, the
employment of the woman should be "in any part of such premises in which
such liquor is consumed 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 performing the
cabaret were employed or permitted to be employed by the Club and they were
performing the cabaret in a part of the club premises in which liquor was being
consumed: by the public. We may point out that it was contended on behalf of
the appellant that subsection (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--1546 SCI/76 360 holding an "OFF" licence, he
could not be guilty of contravention of Section 25, sub-sect/on (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,
subsection (2) and he was bound to obey the prohibition contained in that
sub-section. But even so we find that the two essential ingredients of the
offence under Section 54(1)(a) read with Section 25 subsection (2) were not
even alleged in the complaint. The complaint did not aver that either of the
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 liable 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 they 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 Section 57(c).
This was, therefore, clearly 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 Magistrate,
Sadar Patna.
S.R. Appeal allowed.
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