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Dr Sharda Prasad Sinha v. State Of Bihar .
Factual and Procedural Background
On 31 December 1975, during New Year’s Eve celebrations at Bankipore Club in Patna, officials of the Excise Department conducted a raid. They observed two women and five men singing and dancing inside the club premises. Because the club held an “OFF” licence for vending foreign liquor, the Excise Inspector demanded written permission authorising the cabaret under Section 25(2) of the Bihar and Orissa Excise Act, 1915. When none was produced, a complaint dated 2 January 1976 was filed against Dr. Sharda Prasad Singh, the club’s Honorary Secretary, alleging violations of Sections 54(1)(a) and 57(c) of the Act.
The Sub-Divisional Magistrate, Patna, took cognisance of the offences. The appellant invoked the High Court’s inherent jurisdiction under Section 482 of the Code of Criminal Procedure to quash that order, but the High Court summarily rejected the petition on 4 February 1976 and subsequently refused leave to appeal. The appellant then obtained special leave and filed the present appeal before the Supreme Court of India.
Legal Issues Presented
- Whether the allegations in the complaint, even if taken at face value, disclosed the essential ingredients of offences under Sections 54(1)(a) and 57(c) of the Bihar and Orissa Excise Act, 1915.
- Consequently, whether the High Court erred in refusing to exercise its power under Section 482 CrPC to quash the magistrate’s order taking cognisance of the offences.
Arguments of the Parties
Appellant’s Arguments
- The complaint did not allege two necessary ingredients for an offence under Section 54(1)(a) read with Section 25(2): (i) that the women performers were “employed or permitted to be employed” by the club, and (ii) that the performance occurred in a part of the premises where liquor was being consumed by the public.
- Section 25(2) is inapplicable to holders of merely an “OFF” licence (as opposed to an “ON and OFF” licence), so contravention of that subsection could not arise.
State’s/Prosecution’s Position
- Maintained that a prima facie case existed. However, counsel could not identify any specific licence condition allegedly breached under Section 57(c).
Table of Precedents Cited
No precedents were cited in the provided opinion.
Court's Reasoning and Analysis
The Supreme Court reiterated that a High Court may exercise inherent power under Section 482 CrPC to quash proceedings where the complaint fails to disclose any offence.
Analysis under Section 54(1)(a) read with Section 25(2):
- Section 54(1)(a) penalises a licensed vendor who “employs or permits to be employed” any woman in contravention of Section 25 within licensed premises.
- Section 25(2) similarly applies only when a woman is employed or permitted to be employed in premises where liquor is consumed by the public.
- The complaint lacked any allegation that (a) the women were employed or permitted to be employed by the club, or (b) that liquor was being consumed by the public in the area where the cabaret occurred.
- Without these averments, the statute’s essential ingredients were missing; therefore, no offence under Section 54(1)(a) was disclosed.
Analysis under Section 57(c):
- Section 57(c) penalises wilful breach of a licence condition for which no specific penalty is elsewhere provided.
- The complaint failed to specify any licence condition allegedly breached, and the State’s counsel could not identify one.
- Accordingly, the allegations could not constitute an offence under Section 57(c).
Because both charged offences were unsupported by the factual allegations, the Magistrate’s cognisance was erroneous, and the High Court should have intervened.
Holding and Implications
Appeal Allowed; High Court order set aside; criminal proceedings quashed.
The immediate consequence is termination of Case No. 2(2) of 1976 (Trial No. 285 of 1976) pending before the Executive Magistrate, Sadar Patna. The judgment reinforces the High Courts’ duty to exercise inherent jurisdiction under Section 482 CrPC to prevent abuse of judicial process when complaints fail to disclose statutory offences; however, it sets no new precedent beyond applying settled principles to the facts.
P.N 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 December 31, 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 January 2, 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 Bankipur Club, Patna. Two women and five men were singing and dancing. This dance was being performed inside the premises of the Bankipur Club, Patna before a large gathering of men and women. I asked Dr Sharda Prasad Singh, Honorary Secretary and his Manager Sri Banke Behari 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 1-4-1975 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 dance 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 chargesheet 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 High Court by an order dated February 4, 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.
2. 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 Bankipur Club was a licensed vendor since it held an “OFF” licence in Form 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 be 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 the 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 sub-section (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 3 and since the appellant in the present case was holding an “OFF” licence, he could not be guilty of contravention of Section 25 sub-section (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 sub-section (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 the 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.
3. 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 the 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).
4. 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.
5. We accordingly allow the appeal, set aside the order of the High Court and quash the proceedings in Case No. 2(2) of 1976 Trial No. 285 of 1976 pending in the court in Mr S.S.P Yadav, Executive Magistrate, Sadar Patna.
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