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
Peti tion No 44176 AB Sinha and Pramod Swarup for the appellant
SN Jha and UP 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 1025 pm 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 541a 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 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 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 54a and Section 57c 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 541a and Section 57 c of the Act
Section 541 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 Rs500 
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 541 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 the 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 541a read with Section 252 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 SCI76 360 holding an OFF licence he could not be guilty of contra vention of Section 25 sub secton 2 and hence no question of offence under Section 541a 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 541a 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 541a 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 57c 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 Rs500 
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 57c
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 22 76 Trial No 28576 pending in the Court in Mr SSP Yadav Executive Magistrate Sadar Patna
SR Appeal allowed


Summary:
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 section 25 constitutes an of fence section 541a of the Bihar and Orissa Excise Act 1915
Under section 252 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 57c of the Act provides a penal fine upto Rs500 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 section 541a read with section 25a and section 57c of the Bihar and Orissa Excise Act 1915
A revision filed under section 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 section 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 section 541a 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 section 541a read with section 252 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 section 57c 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