PETITIONER:
SHARDA PRASAD SINHA
Vs.
RESPONDENT:
STATE OF BIHAR
DATE OF JUDGMENT08/12/1976
BENCH:
BHAGWATI, P.N.
GUPTA, A.C.
SHINGAL, P.N.
CITATION:
1977 AIR 1754 1977 SCR (2) 357
1977 SCC (1) 505
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 chargesheet 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 of-
fence 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 upto 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 SubDivisional Magistrate, Patna took cogni-
zance 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 compe-
tent 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]
JUDGMENT
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. Peti-
tion 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 Ex-
cise, Inspector of Excise and SubInspector (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 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 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 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 authori-
ty 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 ille-
gal. Dr. Sharda Prasad Singh who is Honorary
Secretary of Patna Bankipore Club did not
show any permission of the District Magis-
trate or of any other authority for conducting
the Cabaret and he said that he had not ob-
tained 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 con-
stitute any offence and hence the appellant filed an appli-
cation 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 Magis-
trate taking cognizance of the offence. The question which,
therefore, arises for consideration is whether the allega-
tions 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 argu-
ment that the place where the cabaret was going on was a
part of the licensed premises.. But in order that the al-
leged cabaret should constitute an offence under Section
54(1) (a), it was necessary that the women who were perform-
ing the cabaret should be employed or permitted to be em-
ployed 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 con-
sumption on his premises shall, without the previous writ-
ten 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 provi-
sion also comes into play only when a woman is employed or
permitted to be employed by a person licensed to sell for-
eign 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 contra-
vention 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 sub-
section (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 com-
plaint does not allege as to which condition of the licence
was broken by the club or the appellant in allowing a caba-
ret 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 con-
tained in the complaint manifestly did not constitute an
offence under Section 57(c).
This was, therefore, clearly a case where the allega-
tions 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 circum-
stances 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.
361