SHARSDA PRASAD SINHA Vs. STATE OF BIHAR

JUDGEMENT

(1.) 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 31 December 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 2nd January, 1976 charging him with having committed offences under S. 54 (1) (a) and S. 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:

(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 S. 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 Sec. 54 (1) (a) and S. 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 S. 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 S. 25. Now there can be no doubt that the Bankipur 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 assumed 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 S. 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 S. 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 the 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 Sec. 54 (1) (a) read with S. 25 (2) unless it could be shown by the prosecution that the women who were performing the carberet were employed or permitted to be employed by the Club and they were performing the carbaret 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 S. 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 holding an "OFF" licence, he could not be guilty of contravention of S. 25, sub-s. (2) and hence no question of offence under S. 54 (1) (a) could arise. But we will assume for the purpose of argument that the purpose of argument that the appellant was covered by S. 25, sub-s. (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 offences under Section 54 (1) (a) read with Sec. 25, sub-s. (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 S. 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 S. 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 carbaret 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).