Vaidya, J.:— The State has filed the above Criminal Appeal challenging the validity and propriety of the order of acquittal passed by the Presidency Magistrate, 28th Court, Esplanade, Bombay, on November 30, 1971 in Criminal Case No. 808.P of 1971. In the said case, the respondents: (1) Miss Joyce Zee alias Temiko, (2) Moti Lilaram Bhawanani, (3) Jethanand Vishindas Baxani and (4) Rochiram Chimanlal Bhawanani were prosecuted under s. 294 read with s. 109 of the Indian Penal Code in connection with a cabaret show given, at about midnight, on December 19, 1970 by accused No. 1 Miss Joyce, a cabaret artist, aged 23 years, in the Blue Nile Hotel, belonging to the three partners accused Nos. 2, 3 and 4.

2. On that day, information about the obscene cabaret dances at Blue Nile was received by the Vigilance Branch of Greater Bombay, C.I.D P.W 4 S.G.S.I Desai, and P.W 5 S.I Patil of that branch decided to attend the cabarets. One Doulatrai Mohanlal Kothari, P.W 3, owning a tailoring shop, was taken by them with them. They had reserved in advance five seats for: (1) Inspector Daxinkar, (2) S.I Patil, (3) S.I Deshmukh, (4) S.G.S.I Desai and (5) Kothari. They reached the place at 9-30 p.m They were sitting on table No. 2 facing the stage when cabaret shows were to be given. They ordered food. The first cabaret started at 10-35 p.m It was performed by a girl named Lisa. It lasted for about 10 mintues. The spot light was focussed on the dancer. All the other lights were switched off. There were number of customers including ladies. At 11-15 p.m the second cabaret dance was done by Christine Kelly. She was fully dressed. She had a gown. As she entered the hall she started smoking on the heads of the customers. She then came to the dancing floor of the hotel. She started dancing and shouting. While so doing she asked some customers to remove her clothes. They did so till she was left in panties and a transparent gown. She continued dancing for five minutes like this. Once she started going round the tables. She touched some customers with her breasts. She tried to hold S.I Deshmukh's face between her breats. She went to another table where a Sikh was sitting. She touched him also with her breasts. He turned his face. She hugged him violently with her breasts and went away. So ended the show of Christine in respect of which the prosecution filed another case in which she was also acquitted by the learned Presidency Magistrate for the same reasons, as in the instant case. After this there was an acrobatic show which lasted till midnight. At about 12-15 a.m the fourth show started. The artiste was accused No. 1, Miss Joyce, also called Temiko. We are concerned with her cabaret show in this case.

3. The prosecution alleged that Temiko, accused No. 1, was dressed in a transparent gown. She was smoking when she entered the hall accompanied by cabaret music. Spot light was focused on her. All other lights were off. She danced for a few minutes. Then she started moving around the table shouting aloud. She nudged various customers with her back side and blew smoke at their heads. She approached the customers in the dancing hall of the Blue Nile Hotel to remove her clothes. Some customers obliged her till she was left only with transparent panties. She then lay flat on the floor making erotic moves with her legs and body suggesting sexual acts. She made strokes against the floor and uttered cries, which made people to get up from their seats and look at her. Subsequently she put on a transparent gown which left her breasts open to view. She shouted to the customers to suck them. She further put her nipples in the mouths of some customers. She was also brushing people with her breasts. The cabaret lasted till 12-30 a.m It is said that at the end of the show, S.G.S.I Desai was annoyed at the show and approached Inspector Daxinkar. Inspector Daxinkar contacted the Clerk at the counter and obtained the names of Christine and Temiko. Accused No. 2, one of the proprietors, was present. S.I Patil took the artistes to the Vigilance Branch. After completing the investigation a charge-sheet was filed in this case against the four accused.

4. On these facts it was alleged that the prosecution witness Guruprasad Khanna, one of the customers, S.G.S.I Desai, S.I Patil and Kothari were all annoyed at the obscene acts of accused No. 1 and, therefore, all the other accused, partners who owned the Blue Nile Hotel and accused No. 1 had abetted each other in giving this performance in Blue Nile Hotel, and were therefore guilty of the offence under s. 294 read with s. 109 of the Indian Penal Code. P.W 1 Guruprasad Khanna, a motor-parts or car dealer from Delhi, P.W 2 Raut, a clerk in the office of the Commissioner of Police, who produced the Police Registration Certificate of Blue Nile, P.W 3 Kothari, the tailor, P.W 4 S.G.S.I Desai and P.W 5 S.I Patil were examined by the prosecution to prove the case against the accused.

5. The four accused pleaded not guilty. Accused No. 1 admitted having performed the show but denied the allegations of obscenities and annoyance. In her statement under s. 342, she said:

“It is true that I did a cabaret at the Blue Nile between the night of 19-12-1970 and early hours of 20-12-1970. It is not true that I entered the hall in a transparent gown which was upto my hip. It is true that I entered the hall smoking. It is not true that I approached the customers and requested them to remove my clothes one after another. It is not true that except for my panties I was completely naked. It is not true that I lay on the floor and that I was moving my legs, hands and my body in a typical way or in an erotic manner. I say that in a cabaret such as mine, I had to dance to the rhythm of music. It is not true that I lay on the floor and was striking it with my body. It is true that people did gather round the floor. It is not true that I was striking my breasts in a violent manner. It is not true that I inserted my nipples in the mouth of the customers and or I pushed them with breasts or hips. It is true that when I came on the floor I removed my top gown. It is not true that I removed my brassiere. It is not true that subsequently I put on another gown which was open in front and which showed my breasts. It is not true that I blew smoke on customers and played with their hair. It is not true that some persons in the audience were annoyed. It is not true that nobody clapped at the show. There was great applause.”

6. She filed a written statement reiterating what she stated in her statement under s. 342. She submitted further:

“I was giving the performance of a western dance known as ‘Solo’ which is a well known performance and during the same dance I had to bend so low as to be near the ground and rise up again to the tune. I deny having rolled on the ground naked and taken out my brassiere at that time. It is clear that the witnesses have not understood the same as is evident from the statement of Khanna. I say that my performance is very much liked and there are many who come repeatedly for the show. On the day in question also my performance was very much appreciated by the audience who applauded me throughout the show by way of appreciation. There was none in the audience who left in the middle and everyone including the ladies sat throughout the show. I have been giving these performances since last three years at various places and am appreciated.

Assuming for the sake of argument that I did what the witnesses say, I submit that the performance may not be called obscene so as to deprave and corrupt minds of those who attended the same. They were all adults between 25 and 50. They were mostly educated and widely travelled and decent people of the Society. There is hardly any question of corrupting or depraving the minds of such people who come with zest and liking. The question of obscenity, I submit, of a particular thing may be considered not in abstract and in relation to those who had not gone. The same may be considered in relation to those who had assembled there for the close doors performance though it was a public place. I submit that the performance in relation to such elite persons who are mature and culturally developed cannot be called depraving, corrupting and much less annoying.

I submit that I am innocent and pray that I should be acquitted.”

7. The three other accused also admitted the performance of the show of accused No. 1 but denied the allegations of obscenity and annoyance.

8. In my view, the prosecution under s. 294 was manifestly unsustainable in the facts and circumstances of the case. Section 294 runs as follows:

“Whoever, to the annoyance of others,

(a) does any obscene act in any public place, or

(b) sings, recites or utters any obscene songs, 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.”

9. This section, like all other sections in the Indian Penal Code, must be read subject, inter alia, to the general exceptions in ss. 87 and 88:

Section 87:

“Nothing which is not intended to cause death, or grievous hurt, and which is not known by the doer to be likely to cause death or grievous hurt, is an offence by reason of any harm which it may cause, or be intended by the doer to cause, to any person, above eighteen years of age, who has given consent, whether express or implied, to suffer that harm; or by reason of any harm which it may be known by the doer to be likely to cause to any such person who has consented to take the risk of that harm.”

10. It is well known that any person above eighteen who enters a hotel where a cabaret show is on the floor, must have so entered either to enjoy the show or to run the tempting risk of the harm of annoyance, if he so feels, as a result of the obscene acts and sounds normally making up such a cabaret show. It is not suggested in this case that any of the customers was below eighteen. Having once entered the floor of the hotel he must know that he will be compelled to run the risk of the alleged harm by way of mental annoyance, if any. Any reasonable and prudent person with average common sense knows or ought to know before entering a hotel like Blue Nile, where cabaret shows are run, that the cabaret artistes, whether male or female or both, are bound to show acts and make sounds accompanied by cabaret music, sexual or erotic gestures and revelation and play of parts of male or human bodies normally not exposed to public view on account of modesty or current fashions in society. Any person who desires to avoid the alleged mental harm of annoyance or psychological shocks on seeing what to some may be secret, sacred or profane parts of the male or female body is at perfect liberty not to go to such hotels or buy tickets for such obscene or annoying shows.

11. Moreover, the cabaret shows are usually done for the exclusive benefit of the special customers paying for the show in a hotel like Blue Nile. Even s. 88 will, therefore, apply to such a show. Section 88 runs as follows:

“Nothing, which is not intended to cause death, is an offence by reason of any harm which it may cause, or be intended by the doer to cause, or be known by the doer to be likely to cause, to any person for whose benefit it is done in good faith, and who has given a consent, whether express or implied, to suffer that harm, or to take the risk of that harm.”

12. Any customer who goes to a hotel where cabaret show is run has impliedly given his consent to take the risk of the mental harm, if any, of being annoyed by the obscene sounds and dances which the cabaret performer may give. The maxim volenti non fit injuria must apply to the annoyance, if any. Thus, even assuming that some members of the audience were annoyed by the obscenities alleged to have been performed and uttered by accused No. 1, such obscenities and annoyance, if any, would fall within the ambit of ss. 87 and 88. On this ground alone, the order of acquittal deserves to be sustained.

13. The learned Magistrate, however, acquitted the accused on the ground that the prosecution failed to prove beyond reasonable doubt that what accused No. 1 did was obscene or caused annoyance to anyone. He even went to the extent of holding as follows:

“Dancing without brassiere cannot be considered as obscene, because a lady's breast is held to be a thing of beauty from times immemorial. The point that one has to remember is whether this was done to such an extent as to appeal to the carnal side of human nature or had that tendency. It evoked nothing in Kothari except interest. Khanna wanted to gain knowledge. Patil has not stated that he was annoyed.”

14. The learned Magistrate applied the tests of obscenity laid down by the Supreme Court in the case of a book, Lady Chatterley's Lover in Udeshi v. State . [1965] 1 S.C.R 65, S.C 67 Bom. L.R 506. and other English cases and observed that the test of obscenity was flexible, because society can never be static. I do not think that such tests applicable to books which may fall into anybody's hand can be applied to cabaret shows in costly hotels attended by paying adults. He made several other remarks about obscenity and about the cabaret dances which go rather beyond limits of relevancy.

15. He held that the prosecution failed to prove that there was any annoyance to any one observing as follows:

“Unless annoyance is caused, the cabarets performed by Christine and Temiko and the various acts alleged to have been made by them will not attract the provisions of section 294 of the Indian Penal Code and hence, unless there is annoyance, all their action will not be punishable. As far as annoyance is concerned, there must be definite and convincing person or persons in general. All those who left either during Christine's cabaret or immediately after that have not been examined. It was pitch dark and as such it was impossible to read the expressions on their faces. Witness Khanna who is a car-dealer is not an expert on reading faces or expressions and as such his evidence is not that of an expert. As I have observed already Khanna gained knowledge while Kothari was interested. The word ‘annoyed’ introduced in Kothari's evidence is not his own expression. S.I Patil is completely silent with regard to annoyance. He only stated that they saw the performances and after that they decided to take the accused and to file a case against them. S.G.S.I Desai is the only one who says that he was annoyed. Unfortunately, for him he has stated that he was annoyed because the act appeared to be obscene.”

16. In view of these conclusions, the learned Magistrate acquitted all the accused.

17. The said reasons, findings and the order of acquittal are challenged by the State. It is contended that the learned Magistrate adopted wrong tests to determine obscenity in cabaret shows; and notwithstanding the evidence led by the prosecution which conclusively established the obscene acts committed by accused No. 1 in the course of the cabaret show, he wrongly held that there was no obscenity. It is urged that the reasons given by the learned Magistrate are fantastic and perverse such as that because a lady's breast is held to be a thing of beauty from times immemorial, dancing without brassiere cannot be considered as obscene. It is also contended that the movements and dances and other acts performed by accused No. 1 at the cabaret show were proved beyond reasonable doubt to be obscene and as they were done in the hotel which was a public place, it caused annoyance to persons who went away and also to the prosecution witness P.W 1 Guruprasad Khanna, the prosecution witness No. 3 Daulatrai Kothari, a tailor, who was asked by S.I Patil to accompany him to the cabaret and P.W 4 S.G.S.I Desai, who went to the Blue Nile Hotel on receiving information regarding the obscene cabaret shows being performed at the Hotel.

18. So far as the reasons and the findings of the Magistrate regarding obscenity and annoyance are concerned, there is considerable force in the contentions made by Mr. Gambhirwala, the learned Assistant Government Pleader. The gestures, sounds and acts of accused No. 1 may have been considered as obscene by the audience. Many may have liked them because of the obscenity. Others may have besen annoyed for the very reason. Merely because the female breasts are things of beauty, it does not mean that they can be so dealt with by a female as to result in obscenity and annoyance to public. The offence, under s. 294 can be committed by showing and dallying with breasts to the annoyance of the public, if the public or section thereof object.

19. Dancing without brassiere may or may not be obscene according to the time, the place, the circumstances and the age, tastes and attitudes of the people before whom such a dance is performed. It cannot be said that in all places, at all times and in all circumstances it may not be obscene or it will not cause annoyance to people in a public place. I have even a grave doubt as to whether a hotel like Blue Nile can be considered to be such a public place as is meant in s. 294, when an admission fee is required to be paid for the cabaret show as was done by S.G.S.I Desai, in this case. It is admitted by Desai in his cross-examination and by P.W 5 Patil that they had also to take food in the hotel before the cabaret show could be attended. The star prosecution witness in this case, Guruprasad Khanna of Delhi, has stated that he paid Rs. 30 for witnessing the cabaret show.

20. The hall where the cabaret show was to be held, was packed. There were about one hundred and fifty people to witness the show according to Khanna and S.G.S.I Desai. S.G.S.I Desai stated that they were of the ages between 25 to 50. Khanna stated that he had never been to any cabaret in Delhi. This was the first and last cabaret show in his life. It is difficult to believe this part of his story because he says that he has been knowing about cabaret shows for the last ten years and he takes food in different hotels at different times when he comes to Bombay. Whatever it may be, it cannot be said that a cabaret show in a place like the Hotel Blue Nile, where obscene acts are performed, by a cabaret dancer would annoy the audience when the audience has at no mean price chosen to attend the show. Accused No. 1 stated that the audience clapped and applauded her.

21. As already stated above, I think that when an adult person pays and goes to attend such a show, he runs the risk of being annoyed by the obscenity or being entertained by the very obscenities according to his taste. Some persons so going may be disappointed with the absence of obscenities. Even assuming that a hotel, where anybody can buy tickets or seats, is considered to be a public place, it cannot, therefore, be said that the obscenity and annoyance which are punishable under s. 294 of the Indian Penal Code, are caused without the consent express or implied of the adult persons in the audience attending such cabaret shows on the floor of the hotel.

22. As the accused in this case are unrepresented, Mr. Gambhirwala, the learned Assistant Government Pleader, very fairly brought to my notice an unreported judgment of my learned brother Mr. Justice Rege, The State of Maharashtra v. Gwendalina alias Olive Maicland . 1973 Criminal Appeal No. 1541 of 1917, decided by Rege J., on June 20, 1973 Unrep.., in which a cabaret artiste by name Gwendalina was acquitted of a charge under s. 294 of the Indian Penal Code. The cabaret show in that case was on the ground floor of Dhanraj Mahal, at Apollo Bunder Road, Colaba, Bombay, called Kokwah Restaurant, run under the trade name of Mandarin. Gwendalina was the main cabaret dancer on the night of November 30, 1970.

23. She came down from the upper floor to the dancing floor. At that time she was smoking a cigarette. She was then wearing a half nicker, a blouse with half sleeves and over it there was a covering which was transparent. She removed her outer costume and kept it on the dancing floor. She then moved round the tables and went to the customers throwing smoke on their faces. Then she started dancing and suddenly she put her leg on a customer's shoulder and asked him to remove the stocking. The customer did it. Then she went to another customer who was a foreigner and asked him to remove the other stocking, which he did. Again she started dancing and removed her short pant. Inside the short pant there was an under-pant. That half-pant was also removed. She then went to another customer and asked him to remove the buttons of her blouse, which he did. Thereafter she removed her blouse. Inside the blouse there was her brassiere. Then she continued to dance and removed her under-pant. Underneath the under-pant there was a piece of apparel and she continued to dance with that apparel. She went to one of the customers and removed his spectacles and inserted them in her under-wear and then took them out from the other side. While she was dancing, she removed her brassiere and she pressed both her hands on her breasts and started shaking them and, while shaking, she approached the customers. The orchestra played a particular tune of the blowing of the horn while she was shaking and pressing her breasts. The dance was continued in this way.

24. After referring to s. 294 of the Indian Penal Code, Rege J. observed:

“…Looking to the wording of the section, therefore, the question as to an act being to the annoyance of the others cannot be considered objectively without reference to the persons actually witnessing the act. It cannot be the intention of the Legislature that even if a particular obscene act done in a public place is enjoyed by all those witnessing the same without in any way getting annoyed thereby, it can still be considered to be an offence under the section if, looking at it objectively, the Court finds that it could have annoyed others who were not actually present to witness the said act. In my view, the wording of section 294 does not admit of any such a wide interpretation. The Court will have to find out from the evidence whether any person at a given time witnessing a particular obscene act was actually annoyed or not.”

25. The learned Judge then examined the evidence of the three witnesses in that case, and found that there was no evidence of any annoyance caused to any of them and all the witnesses had enjoyed the cabaret show.

26. The question as to whether, in principle, an adult person who buys a seat at a table in a hotel like Blue Nile, knowing that there is a cabaret show and watches the cabaret show, can complain of an offence under s. 294 was not raised in that case. In my judgment, however, for the reasons stated already such a person can never complain in a criminal Court of annoyance. Cabaret or similar strip-tease dances are known and done in many big cities “all over the world. They are advertised in the newspapers. The hotels try to whet public appetites by salacious advertising in their show-cases. A person who enters such a hotel to attend such show, runs the risk of both enjoyment or annoyance according to his own nature and the nature of the cabaret shows. A wise and prudent person who does not like to be annoyed with such dances never goes to such places and even if by chance he goes he leaves it as soon as he will. I do not think that as long as the cabaret shows are permitted in such hotels, it is open to persons attending such shows by paying for them to complain of annoyance in a Court of law under s. 294 of the Indian Penal Code. The State also cannot prosecute under that section the cabaret artistes taking part in the cabaret show for the benefit of the adult audience who attend such cabaret shows.

27. It may be a different matter if the places are public places to which anybody can go at any time without paying anything. It may be an offence if such cabaret shows are performed in the presence of persons below eighteen. It may also be a different matter if such cabaret shows are displayed on the screen in a cinema house where people do not necessarily know that there is a cabaret show in the cinema. But where in a posh hotel like Blue Nile cabaret show is prominently advertised and the adult persons who want to attend it have to book often in advance their seats by paying some amount and they have to further take some excessively priced drinks and eatables and attend those shows for nearly two hours with hundreds of men and women, who patronise such shows, I do not think that it would be possible to convict an artiste taking part in such a cabaret show merely because some people not attending such shows, perhaps rightly, equate cabaret shows with pornographic filth and obscenity which deserve to be removed from the market-place in posh hotels or because some of the members of the audience feel annoyed at seeing the exhibition or dallying of some parts of the female body, though such acts accompanied with sounds are normally expected by the spectators patronising a cabaret show.

28. If the State wants to prohibit such cabaret shows as wrongful exploitation of sex or as socially harmful, or indecent, it will have to enact some special legislation. But, in the absence of such special law, where cabaret shows are held on the floors of hotels like Blue Nile to which adult people are admitted on payment, I do not think that the prosecution can contend or prove that such cabaret shows come within the purview of s. 294 of the Indian Penal Code, having regard to the provisions of ss. 87 and 88 of the Indian Penal Code.

29. It is true that the learned Magistrate has said that nothing that was done in the present case was obscene or annoyed any of the members of the audience. Once such members attended the cabaret show arranged by the hotel, I do not think that any member of the audience can make a grievance of the fact before a Court that some thing that was said or uttered or done by the artiste was obscene or indecent or immoral or annoyed him or her for some reasons.

30. The learned Magistrate is certainly wrong when he says that dancing without brassiere cannot be considered as obscene because a lady's breast is held to be a thing of beauty from time immemorial. Civilised people everywhere consider it obscene, immodest, indecent and even immoral in certain circumstances to expose or display the breasts, just as it is common knowledge that in many big cities in many civilised countries people who are to cabaret shows in hotels or places to which admission is paid for expect breasts and other parts of the female body to be shown fully or partially or suggestively or played with to make the cabaret show really thrilling and successful. What is good and pleasing to an audience in a cabaret show on the floor of such a hotel, to which admission has to be bought at considerable price, may not be good in a small town hotel or even in a public place like Chowpatty or Azad Maidan in Bombay.

31. For these reasons, though I do not agree with the reasons given by the learned Magistrate, I confirm the order of acquittal on the ground that the prosecution in this case was legally not maintainable and dismiss the appeal. Bail bonds are cancelled.

32. Appeal dismissed.