*THE HON'BLE SRI JUSTICE P.S.NARAYANA +Criminal Petition No.2355 of 2008 % 12-3-2010 # Smt.Seema Dass w/o.Raj Dass and others .. Petitioners Vs. $ State of Andhra Pradesh, Represented by Public Prosecutor, High Court of A.P. Hyderabad .. Respondent <GIST: >HEAD NOTE: ! Counsel for petitioners : Sri G.L.Narsimha Rao ^ Counsel for respondent : Additional Public Prosecutor ? CASES REFERRED: 2004 Criminal.L.J. 3394 THE HON'BLE SRI JUSTICE P.S.NARAYANA Criminal Petition No.2355 of 2008 Date : 12-3-2010 Between : Smt.Seema Dass w/o.Raj Dass and others .. Petitioners and State of Andhra Pradesh, Represented by Public Prosecutor, High Court of A.P. Hyderabad .. Respondent THE HON'BLE SRI JUSTICE P.S.NARAYANA Criminal Petition No.2355 of 2008 ORDER: 1. While admitting the Criminal Petition on 12-11-2009, this Court ordered notice in Crl.M.P.No.2101/2008. 2. Though the matter is appearing under the caption ‘Interlocutory’, the Counsel on record made submissions in elaboration and further made a request for final disposal of the Criminal Petition. Hence the Criminal Petition is being disposed of finally. 3. The Criminal Petition is filed under Section 482 of the Criminal Procedure Code (in short hereinafter referred to as "Code" for the purpose of convenience) to quash the proceedings in C.C.No.694/2004 on the file of X Additional Chief Metropolitan Magistrate, Hyderabad in F.I.R.No.267/2004 of P.S. Market, Secunderabad. 4. Sri G.L. Narsimha Rao, the learned Counsel representing the petitioners/A-1 to A-4 had taken this Court through the contents of the charge sheet and would maintain that even if the allegations in the charge to be taken into consideration, none of the offences with which the petitioners had been charged with would be attracted. The learned Counsel also relied on certain decisions to substantiate his submissions. 5. Per contra, the learned Additional Public Prosecutor representing the respondent/complainant would maintain that in the light of the specific allegations made in the charge sheet, this is not a fit matter to be interfered with under Section 482 of the Code. 6. Heard the Counsel. 7. It is stated that the 4th petitioner is the owner of 9-Gems Bar and Restaurant. The said Bar and Restaurant is being run from a long time after obtaining the required permission and also licence. The management of the said Bar and Restaurant neither allowed any unsocial activities nor involved itself in any such activities whatsoever. It is also stated that the other petitioners are singers engaged by contract. Specific stand had been taken that these are only singers and not dancers. 8. Further it is stated that on 19-12-2004 at 20.00 hours, the complainant came to the premises of Bar and Restaurant at Clock Tower, Secunderabad and foisted a case alleging that the management was organizing obscene dances in the guise of Orchestra. The said allegation no doubt had been specifically denied. Several decisions also had been referred to in the grounds of the present Criminal Petition under Section 482 of the Code. 9. This Court in Crl.P.No.4377/2005 dated 30-9-2005, after referring to Section 294 I.P.C. and also the decision in Narendra H.Khurana and others Vs. The Commissioner of Police and another [1] ultimately came to the conclusion that there is no dispute that the said Bar and Restaurant is a public place but however there was no evidence which would go to show that any annoyance as such had been caused to others. In the light of the same, the proceedings had been quashed. 10. Section 294 IPC reads as hereunder:- “Whoever, to the annoyance of others (a) does any obscene act in any public place, or (b) sings, recites or utters any obscene song, ballad or words, in, or near, any public place, shall be punished with imprisonment of either description for a term which may extend to three months, or with fine, or with both”. 11. In the decision referred (1) supra, the Division Bench of Bombay High Court observed : “Cabaret dances where indecent and obscene act per se is involved, would not attract the provision of Section 294 IPC without fulfillment of its essential ingredients i.e., Evidence pertaining to “annoyance to others”. The law enforcement machinery has ample power to proceed under different laws for instance, S.110 of Bombay Police Act, 1951 or for that matter, Rules for Licensing and Controlling Places of Public Amusement (other than cinema) and Performances for Public Amusement including Melas and Tamashas 1960 and Rules for place of public entertainment license whereunder any indecency of dress, dance or gesture is prohibited by the holder of the Performance License. Besides this aspect, if the State wants to prohibit such cabaret shows as wrongful exploitation of sex or socially harmful, or indecent, it has been open to enact some special legislation. But in absence of any such special law the prosecution cannot contend or prove that such obscene act would come within the purview of S.294, without cogent and conclusive evidence to establish annoyance caused to others”. Further, the Division Bench observed : “An enclosed area in a posh hotel where cabaret dance is performed cannot be said to be a private place merely by reason that entry is restricted to persons purchasing the highly priced tickets and costly food and drinks are served. A posh hotel is as much a public place as a cinema house. Entry to a hotel just like a cinema house cannot be and is not being restricted to anybody. A hotel must definitely be placed accessible to all except perhaps subject to reasonable restrictions allowed by law. It continues to be a public place. If any portion of the hotel is earmarked for persons who opt to pay a particular amount, it does not ceases to be a public place for that reason, because without discrimination anybody will have access on such payment. Therefore, it cannot be said that a portion of a hotel where the only restrictions for entry on some payments is not a public place. Thus, restaurants where cabaret dances are held and where entry is restricted by purchase of tickets would also come within the purview of the term “public places” as contemplated under Section 294.” 12. In Crl.P.No.4931/2005 dated 28-10-2005, following the view expressed by the Division Bench of Bombay High Court referred (1) supra, the learned Judge of this Court observed: “In a case covering similar situation in Criminal Petition No.5975 of 2004, this Court following the decision of the Bombay High Court in Narendra H.Khurana Vs. Commissioner of Police (2004 Crl.L.J.3393) took the view that Cabaret dances where indecent and obscene act is involved, would not attract the provisions of Section 294 IPC without fulfilling its essential requirement, evidence pertaining to ‘annoyance to others’. It is not the case of the prosecution that these petitioners caused any annoyance to others. The police ought not to have registered the case. I am satisfied that this is an abuse of process of law in registering case under Section 294 IPC and launching the prosecution. Accordingly, the Criminal Petition is allowed quashing the proceedings in C.C.No.553 of 2005 on the file of III Additional Chief Metropolitan Magistrate, Hyderabad.” 13. In the light of the decisions referred to supra of this Court wherein the decision of the Division Bench of the Bombay High Court had been referred to, this Court is of the considered opinion that the ingredients of Section 294 IPC r/w. Section 109 IPC are not attracted even if the allegations in the charge sheet to be appreciated in proper perspective. Hence, the proceedings under challenge are hereby quashed. ____________________ Justice P.S.Narayana Date : 12-3-2010 L.R. copy to be marked : YES / NO AM [1] 2004 Crl.L.J. 3394