Divanchee Bar & Restaurant, Hyderabad v. Commissioner Of Police, Hyderabad And Another

1. This is an application filed by the 4th writ petitioner for the appointment of an Advocate-Commissioner to act as an observer and report whether the petitioner is observing the Hyderabad Amusement Rules and, if so, whether the police are unnecessarily booking cases against the petitioner.

2. The main writ petition is filed by five Bars and Restaurants and three Artists for the issue of directions to the Commissioner of Police (1st respondent) not to insist on quarterly licences under the Hyderabad Amusement Rules and for a declaration that the licences already issued to petitioners 1 to 5 will be valid till the 30th of Aban of the year. The petitioners also asked for a declaration that they are entitled to provide performances of all dances including Cabaret dances and for a direction to the Commissioner of Police not to interfere with or obstruct the dances shown in the petitioners' Restaurants, including Cabaret dances and for a direction to the Commissioner of Police and his subordinates not to forcibly, enter into the Bars and Restaurants of the petitioners unless there is a complaint of a cognizable offence and for a declaration that Rules 112(a), (b), (f), Hyderabad Public Amusement Rules are ultra vires of the Hyderabad City Police Act. These are the reliefs claimed in the main writ petition.

3. The writ petition was admitted on 25-7-1983. In an earlier writ petition filed by the 4th writ petitioner viz., W.P No. 393/83 there was an interim order in W.P.M.P No. 1269/83 dated 22-3-1983. On the plea that the said interim order was violated by the police authorities, the 4th writ petitioner filed Contempt Case No. 74/83 and a Miscellaneous Contempt Application No. 82/83 against the then Commissioner of Police and the then Deputy Commissioner of Police (West Zone). The relief claimed in the miscellaneous contempt Application No. 82/83 was for grant of stay of a telephone message dated 2-7-83 said to have been issued by the above said police officers allegedly prohibiting the conduct of Indian dances in the restaurant of the 4th writ petitioner. Jeevan Reddy, J. passed an order on 8-7-83 directing the then Commissioner of Police and the then Deputy Commissioner of Police (West Zone), Hyderabad:

“not to interfere with the performance of Indian Dances in the petitioner's premises (and act) strictly in accordance with the licence which was granted,” to the petitioner pending further orders in the petition.

4. Coming to the present application filed by the 4th writ petitioner for the appointment of an Advocate-Commissioner, it is stated in the affidavit of Sri Dayakar Reddy that the police force has been unnecessarily raiding the 4th petitioner's Bar and Restaurant frequently with an intention to harass the petitioner and the artists employed by it; the respondents have booked number of cases under the Hyderabad City Amusement Rules as well as under the Penal Code against the deponent (K. Dayakar Reddy) and against the artists employed by him. It is stated that there are 24 cases filed against the petitioner Bar and that all ended in acquittal. It is further alleged that there is not even a single instance to show that the petitioner has contravened any provision of the Hyderabad City Amusement Rules or the Penal Code and that the petitioner has been conducting business strictly in accordance with the conditions of the licence. Even so, it is alleged that the respondents are not permitting the petitioner's artists to perform Indian dances, as pet the, licence issued and that the respondents are questioning the customers about their whereabouts which is not contemplated under the rules. It was also stated that the petitioner has filed earlier applications that the respondents should follow the procedure laid down by the Criminal Procedure Code whenever they enter into the Restaurants. The petitioner has also contended that the police officers are illegally detaining the petitioner's artists during night times by refusing to enlarge them on bail though the offences are bailable and that the respondents are unnecessarily posting police officials every day at the Restaurant. On account of the alleged harassment it is stated that the petitioner's restaurant is on the verge of closure, and the 4th writ petitioner is sustaining huge loss.

5. Upon these allegations, the petitioner has prayed for appointment of an advocate Commissioner to act as an observer and report whether the petitioner is observing the Hyderabad Amusement Rules and if so, whether the police are unnecessarily booking the cases.

6. On behalf of the respondents, a counter has been filed stating that it was only whenever the police officers are finding any violation of the conditions of the licence or commission of criminal offences or other unsocial activities by the management and their staff or the creation of nuisance or inconvenience to the local residents or passers by that the police have been taking action. There are many instances of clashes which have occurred between the management and the unsocial elements, causing public disorder. In the annexure to the counter-affidavit reference is made to 46 cases registered against the 4th Writ petitioner's Bar at Panjagutta Police Station, Hyderabad from the year 1981 either under the City Police Act or under the A.P Excise Act or under the Penal Code etc. Of these, some cases ended in acquittal, some ended in conviction and some are pending as shown in the said annexure.

7. In several cases even starting from 1981 the accused is shown as Sri K. Dayakar Reddy who is none other than the deponent of the affidavit filed in the present miscellaneous petition. His name occurs in 13 of the cases while in other cases other members of the staff or other artists are involved.

8. According to the respondents, when there is persistent and flagrant violation of the conditions of the licence, the licensing authority has to take these aspects into consideration so as to prevent breach of peace and threats to law and order. The mere fact that in some cases the petitioner obtained acquittal on account of the strict rules of evidence under the Criminal Law does not mean that the petitioners are not prone to commit further offences or breach of conditions of licence. There are a number of residential houses on the western side of the Bar and Restaurant and their interests have to be protected. It is denied that the police were causing harassment to the management or to the customers or that they are questioning the customers about their whereabouts. If occasionally any details were asked from a customer it was only for the purpose of securing them as witnesses and not for any reason. The allegation that the police are harassing the artists by illegally detaining them during night time by refusing to enlarge them on bail, though the offences are bailable, is specifically denied. It is stated that on some occasions the persons detained failed to furnish the required surety and there was no response from the side of the management in such circumstances the artists being ladies who could not be released on bail were kept in the women Police Station specially created for such occasions at City Crime Station. The police officers who were making surprise visits to the Bar to check the various aspects are entitled to enter the public places including the petitioner's Bar and restaurant (1) under S. 25(2) City Police Act, 1348 F; (2) under S. 11, A.P Places of Public Resort Act, 1888, (3) under S. 23, Police Act 1961 and (4) under Ss. 54 and 55 A.P Excise Act, 1968.

9. A reply affidavit has been filed by the deponent Sri Dayakar Reddy reiterating the facts mentioned in the main affidavit The deponent has sought to explain that he was not concerned with some of the crimes registered or that he was otherwise innocent of the offences.

10. On the basis of the above allegations the question that arises for consideration in this miscellaneous petition is: Whether the petitioner is entitled for the appointment of an Advocate-Commissioner to act as an observer and report whether the petitioner is complying with the Hyderabad Amusement Rules and if so, whether the police are unnecessarily booking the cases. The relevant provision under which the application is filed is stated to be Order 26, R. 1, C.P.C

11. For the purpose of this miscellaneous petition, I shall assume that in spite of the amendment introduced in S. 141, C.P.C the provisions of O. 26, R. 1, can be relied upon in a writ petition on account of the provision in the rules relating to Art. 226 of the Constitution that provisions of the C.P.C, so far as may be, may be invoked under Art. 226 of the Constitution.

12. Even so, I would consider this application as not a proper one in the circumstances of the case. There can be no doubt that the various statutes referred to in the counter of the respondents and the Criminal Procedure Code confer ample jurisdiction on the police authorities for the purpose of entering the petitioner's Bar and Restaurant to findout whether the petitioner is or is not violating the conditions mentioned in the licence. The dances conducted in the petitioner's bar and restaurant have necessarily to conform to the conditions of the licence and in fact it is the claim of the petitioner that they so conform. In order to verify the said assertion of the petitioner, the only way by which the police authorities can check the matter is by necessarily entering into the Bar and Restaurant. Apart from the statutory provisions, there is therefore a clear implication in the very licence issued to the petitioner that the respondents have the authority to enter the petitioner's Bar and restaurant for the purpose of checking whether there is any violation of the conditions of licence or the provisions of the Penal Code or of the A.P Excise Act etc. In Rice v. Connolly (1966) 2QB 414 at page 419 Lord Parker, C.J stated as follows:—

“It is also in my judgment clear that it is part of the obligations and duties, of a police constable to take all steps which appear to him necessary for keeping the peace, for preventing crime or for protecting property from criminal injury. There is no exhaustive definition of the powers and obligations of the police, but they are at least those, and they would further include the duty to detect crimes and to bring an offender to justice.”

13. The power of the police to take action for the purpose of detection of crime is well settled and includes the purpose of verifying whether various statutes are being complied with by the licensees or the citizens of the country.

14. In Steel v. Goacher 1983 RTR 98 in relation to the right of a police officer to stop and check a passing motor cycle, Griffiths, L.J stated:

“For a multitude of reasons the police will from time to time, wish to question motorists in the course of their duty to detect and prevent crime. I find nothing oppressive in police officers wishing to satisfy themselves, by enquiry, that a strange car being driven by two men after mid-night through a good class residential area was there for an innocent purpose. If the public wish the police to contain and detect the ever increasing amount of crime and, in particular, the burglary of dwelling houses, they must be prepared, from time to time, to put up with the occasional inconvenience of being stopped and questioned. I would add that one hopes that the public will co-operate with the police in answering their questions, albeit they are under no legal duty to do so.”

15. Similarly in relation to the duty of a driver of a vehicle to stop it when required to do so and a constable's power to detain a vehicle in Lodwick v. Saunders (1985) 80 Crl. A. Reporter 304 at 311 after referring to the above cases, Watkins, L.J stated:

“I wholly and respectfully agree with that, and say further that in my opinion a constable acting reasonably upon a genuine enquiry into the suspected commission of crime, who has under his undoubted power either at common law or under S. 159 (Road Traffic Act, 1972) required a motor vehicle to stop is entitled to take reasonable steps to detain it for such reasonable time as will enable him, if he suspects it to have been stolen, to effect an arrest and to explain to the driver the reason for the arrest.”

16. Thus under the statute as well as under the common law and also by implication of the very terms and conditions of the licence, the police authorities have power to enter upon the business premises of the petitioner for the purpose of checking whether any crime or any violation of the conditions of the licence is being committed. In my opinion, if this basic right of the police is denied, there will be no possibility of bringing crime to book and the purpose of imposing various conditions in the licence will be rendered totally nugatory.

17. There are several statutes both State as well as Central such as the Sales Tax Act, Income-tax Act, the Excise Act, the Central Excises and Salt Act, the Criminal Procedure Code, the Essential Commodities Act, and the Control Orders and various others which give power to various officers to take action if any violation of any licence is committed or any crime is or is being committed. These statutes also provide that the officers are always protected for anything done bona fide and with reasonable belief. It is always open to a citizen to contend that any particular act is not bona fide and that it is unreasonable, and take suitable action for damages or otherwise against the concerned officer in accordance with law.

18. In the present case, the respondents have listed out in the Annexure to the counter affidavit 46 cases where crimes have been registered. In most of them the names of the deponent, Sri K. Dayakar Reddy, or his employees or members of the staff or artists appear. Some cases ended in convictions, some in acquittals and some are pending. The petitioner's name occurs as accused in several of these crimes from 1981.

19. In the context of the general direction which the petitioner has sought in this petition, it will not be permissible only to take into consideration cases where the petitioner has been acquitted. Nor can I accept the plea in the petitioner's affidavit that the cases in which the petitioner has been shown as accused and convicted have no relation to the bar and restaurant where dances are being admittedly conducted. Before an Advocate Commissioner can be appointed as a superior check against the police who are acting within their common law as well as statutory powers and duties, these cases listed in the Annexure to the counter are certainly relevant.

20. In my opinion, the relief for appointment of an Advocate-Commissioner for keeping continuous vigilance over the police is highly undesirable. While in a given case an Advocate-Commissioner can be appointed to make a local investigation and place before the Court the report of his observation, an advocate, in my opinion, cannot be appointed for keeping “continuous” vigilance over a public or a police authority acting in due exercise of its power. The police have a right to detect crime and prevent crime. An Advocate Commissioner cannot therefore be appointed to keep continuous vigilance over the actions of public or police authorities.

21. If such an appointment is made by a Court of Law, it would, in my opinion, become indeed a bad precedent. Businessmen and licensees who are governed by the various tax laws or excise laws, or for that matter any other law, would come before this Court and make a claim that they are being harassed by public officials and pray for appointment of an Advocate-Commissioners as a continuous superior check against public authorities even though the latter have a right to check whether crime is being committed or whether any statute is being violated. In my view, the right to appoint a Commissioner in such circumstances should be in any event, sparingly used and may perhaps require extra-ordinary circumstances which, in my opinion, are totally absent in the present case.

22. The long list of cases of acquittal, conviction and pending cases bear ample testimony to the fact that prima facie there is no reason to appoint an Advocate-Commissioner as a superior or continuous check on the police officials. Even if some cases have ended in acquittal, this Court has certainly to bear in mind particularly under Art. 226 of the Constitution that a criminal case may end in acquittal either on technical grounds or on the ground that the guilt has not been proved beyond reasonable doubt. Further, for judging whether there is violation of conditions of a licence or for judging whether there was a breach of peace or a likelihood of a breach of peace and for judging whether the check that is being made by the police officers is warranted on the facts of the case or not, this Court cannot simply go by the fact that certain cases ended in acquittal This Court is entitled to look into the number of cases registered and take into consideration the fact that some ended in conviction and some are pending, even though some might have ended in acquittal.

23. I may also incidentally state that an advocate, if appointed, is likely to be placed in a very embarrassing situation where he may be compelled to give evidence of facts or events of a “continuous” nature which are disputed by the police authorities. The advocate may indeed have to run about to get a large number of witnesses who are present that various given points of a continuous sequence of time, to support his own version. That is why O. 26, C.P.C permits the appointment of a Commissioner in very limited situations. I am sure that the provisions of O. 26, C.P.C were never intended to permit the appointment of an Advocate-Commissioner for acting as a continuous check against the public officials discharging their duties under a statute or under common law, nor can, in such cases, the party be permitted to invoke the provisions of S. 151, C.P.C

24. For all the aforesaid reasons, I am unable to agree that any case is made out for the appointment of a Commissioner. This W.P.M.P is therefore dismissed.

25. Post the main writ petition and connected cases for final hearing on 14-10-1985 in the first page.

Petition dismissed.