Judgment ( 1 ) THE applicants herein are amongst the directors of a private limited company which runs a Hotel with Restaurant and a Bar and run amusement programme on the basis of licence, while applicant No. 3 is an employee working as a barman. On 9-4-2000 a raid was conducted by the respondent and other police officers on the establishment known as "executive Club" belonging to the company of the Applicant Nos. 1 and 2. On the basis of what transpired to the Police Officers who had visited petitioner's restaurant, they recorded FIR No. 3020 on 20th April, 2000. which was lodged by Police Inspector, Crime branch, Nagpur. Based on the FIR and the investigation followed thereby, the respondents filed the charge-sheet in relation to offences under Sections 292, 294, 109, 176 r/w Section 34 of Indian Penal Code and Sections 81, 84, 77-A of Bombay Prohibition Act along with section 33 (x) and Section 131 of Bombay police Act and as well under Section 30 of arms Act. In as much as 20 witnesses are shown to have been examined and 98 persons have been arrayed as accused persons. These persons include the directors of the owner company, the staff working there, the women staff allegedly involved in the dance activity, security guards, waiters and the customers. ( 2 ) THE crux of the imputations can be summarily stated as follows; (I) That the firm of accused Santosh Nayak and Dhananjay Deodhar is possessing the license for running eating house, and entertainment in the eating house under the provisions of Bombay Police Act and a "bar" under the provisions of Bombay prohibition Act. The accused were permitted to run an entertainment programme on the basis of cultural programmes, gazals and dances on the basis on the basis of pre-recorded music without charging any entry fee. (II) It is alleged that it was found on the given date and time that the Accused Nos. 2 to 27 were presenting dance in obscene manner in different four rooms without adequate clothes and exposing their posteriors being without clothes on the person of artists and were presenting themselves in such a manner which would rouse the sexual desire of the customers seated in the eating house. That the security guards were involved in the acts of instigating the obscenity that was going on. That the security guards were involved in the acts of instigating the obscenity that was going on. They were also found touching the customers while receiving the tip etc. from them and thereby accused committed offence under sections 292 and 294 of Indian Penal Code. (III) It is also found that the Accused Nos. 28 to 93 were participating in the instigative acts of the girls undertaking the dance in the objectionable manner. (IV) That the accused/operators of the Bar had charged Rs. 200/- as entry fees. (V) That the accused/operators were serving the liquor on the tables and the accused persons were involved in these illegal activities. (VI) Guard Radheyshyam was found possessing licensed gun which was meant for his personal security while using it for security of the club, and hence offence u/s. 30 of Bombay Police Act. (VII) The stock of liquor was found at various places other than the licensed premises places and stores of the club, etc. (VIII) The accused had failed in informing the police about commission of offence and thereby committed offence u/s 109 and 176 of Indian Penal Code. ( 3 ) THE police filed charge-sheet on the basis of documents such as Panchnama, statement of (i) Mr. Krushna Sawade, Police inspector and (ii) Smt. S. S. Gite, Lady Police sub-Inspector and the statements of various other customers who are shown as witnesses, who are 25 others. ( 4 ) THE witnesses can be classified into two - (i) the witnesses are cited in relation to offence under Sections 292 and 294 and, (ii) other towards offences under Bombay Police act and Bombay Prohibition Act. ( 5 ) THE learned Advocate for the applicant made following submissions in support of the prayer for quashing the charge-sheet, namely (I) that the raid was conducted with malafide intention and was conducted at the instance of the two IPS Officers who possess grudge against the applicants, moreover, such raid is not permissible as per law; and as per standing directions issued by the State Government. (II) that the applicants were holding valid license for eating house, for running bar and for running the amusement and any violation of terms of license was liable to be dealt in the manner prescribed under the concerned statute, rules thereunder and the cognizance under Cr. (II) that the applicants were holding valid license for eating house, for running bar and for running the amusement and any violation of terms of license was liable to be dealt in the manner prescribed under the concerned statute, rules thereunder and the cognizance under Cr. P. C. was not permissible as the offences complained of under B. P. Act are non-cognizable. (III) The offences complained of are non-cognizable and even on receiving credible information, police could not have visited the spot of incident without registering FIR and authorization of competent authority or Magistrate u/s. 151 of Bombay Police Act or Section 193 of cr. P. C. to take cognizance and further action. (IV) Offences under Sections 292 and 294 are not committed even after assuming the gospelity to the statement of witnesses and even without oath and cross- examination. (V) The Joint Commissioner of Police who is a senior officer of the rank of DIG who had conducted investigation in the same incident i. e. the FIR in question and has recorded a finding in his report dt. 20th september, 2000, that the imputations relating to the offence under Bombay prohibition Act was not proved as well as various other imputations were not proved, renders the situation to conclude that prima facie no offence was made out even for trial. (VI) In so far as the offence in relation to Section 30 of Arms Act is concerned, the imputations contained in the FIR do not constitute commission of offence whatsoever since the said offence has to be independently registered against the accused person concerned and specific imputations thereto have to be made, while any such thing has not been made out by the police in the FIR as well in the charge- sheet. Moreover, use of said weapon in the course or in the aid of commission of offence has not been imputed and therefore, the offence under Arms Act is not liable to be tried along with other offences charged against other accused. (VII) That as it manifestly appeared that the contents in the F. I. R. , complaint or the charge-sheet do not constitute commission of offence, it is a fit case for quashing of the proceedings. (VII) That as it manifestly appeared that the contents in the F. I. R. , complaint or the charge-sheet do not constitute commission of offence, it is a fit case for quashing of the proceedings. (VIII) Further that even if the allegations technically answer the commission of offence but there is no legal evidence brought on record clearly to manifest commission of such offence, the proceedings deserve and are liable to be quashed. (IX ). The procedure prescribed under rule 225 of the "rules For Licensing and controlling Places of Public Amusement (Other than Cinemas) and Performance for public Amusement including Melas and tamashs framed by Commissioner of police has not been followed while registering the offence, and therefore, no offence is at all committed under the bombay Police Act. (X) Reliance is placed on the reported judgments i. e. (i) 2002 ALL MR (Cri) 2370 (Ratanlal Pralhad Gindodiya Vs. State of Maharashtra and ors.) (ii) 1996 Cri. L. J. 449 M/s. Shastri Sales Corpn. and ors. Vs. Income Tax Officer and (iii) 2004 Cri. LJ. 3393 : [2004 ALL MR (Cri) 618] narendra H. Khurana and ors. Vs. The commissioner of Police and anr. ( 6 ) THE prayer for quashing the proceedings is opposed by the State by filing affidavit in reply which is sworn by Joint commissioner of Police, Nagpur. On perusal of affidavit, it is seen that the deponent therein purports to "argue" instead of testifying on facts. He disputes the nature of inquiry conducted by a person who possesses the same rank. While doing so, though he as well deposes for the commissioner of Police as well State government, he does not say that higher authorities have superseded the report of Shri. Nghinglova, the former Joint Commissioner of police. Though contending as to how the fact subject matter of inquiry conducted by earlier joint Commissioner Shri. B. T. Nghinglova is on different set of facts is not spelt out by the joint Commissioner filing this affidavit. ( 7 ) ALL that he contends as can be drawn from affidavit at Page 193 and better it referred by quotation is as follows; "it is also found that, certain girls were dancing on the floor and were making indecent gestures. It is also submitted that, the girls were moving in the public and were touching their bodies and the customers were paying money to the girls. It is also submitted that, the girls were moving in the public and were touching their bodies and the customers were paying money to the girls. These are specific allegations as against these applicants. Evidence of the witnesses were also recorded and after completing the investigation, charge-sheet came to be filed in the Court. "according to the learned Additional public Prosecutor, the proceedings deserves to be continued, and no grounds whatsoever are made out for quashing. ( 8 ) ACCORDING to learned Additional public prosecutor, the material on the basis of which the charge-sheet has been filed is not only adequate but is ample and sufficient enough to prove that the charge-sheet is supported by sufficient evidence to make out not just prima facie but very strong case for trial and all offences stated in the charge-sheet are duly spelt out therefrom. ( 9 ) THE learned Additional Public prosecutor further argued that Section 151 did not create any bar on police from taking cognizance and that the accused has no option than to face the trial. ( 10 ) IN view of rival contentions, what is required to be done is to peruse the record and to examine as to whether the FIR, and the statements of witnesses do spell out commission of offences alleged to have been committed. Though the petition consists of bulk of record and is opposed with briefly narrated affidavit, it would really not take much time and space to deal with the contentions. ( 11 ) FIRST offence to be examined is u/s. 292 and 294 of Indian Penal Code. (A) On plain reading of sections of the offences in Indian Penal Code, it reveals that offence under Sections 292 and 294, what is the crux of such offences is obscenity leading to causing annoyance. Offence u/s. 292 is on account of sale etc. of obscene books, and hence cannot be attracted. The crux a far as section 294 is concerned, is "causing annoyance to other" due to obscene acts in public place or signs, recitals or utterance of obscene song, balad or words. (B) Now, it has to be seen whether offence u/s. 292 and 294 is spelt out. What these officers have stated as can be read out from the plain reading of what has been stated by these two witnesses, which are quoted below for ready reference; as3100. jpgas3100 (1 ). (B) Now, it has to be seen whether offence u/s. 292 and 294 is spelt out. What these officers have stated as can be read out from the plain reading of what has been stated by these two witnesses, which are quoted below for ready reference; as3100. jpgas3100 (1 ). jpg (C) All other witnesses whose statements are recorded in support of this plea do primarily state two things, (i) that they have paid fee for entry, and (ii) that the girls were dancing and that they were paid the tips which they used to collect from the customers and that they used to exhibit in an obscene manner. (D) Two police officers whose statements are the principal evidence of such fact do not contain any imputations whatsoever to the effect that the language-words employed in song sung, type of acting or postures exhibited by the accused girls did cause annoyance to the viewers. It is the opinion of the concerned police officer about the incident is what they have stated even without themselves being annoyed. Neither of the witnesses state about being annoyed due to exhibition of alleged obscene dancing. Thus these witnesses do not support commission of an offence either under Sections 292 or 294 whatsoever. (E) The collective effect of these statements and the statements of the police officers and witnesses as mentioned earlier as well even on accepting this to be true, do not constitute commission of any offence whatsoever under Sections 292 and 294 of Indian penal Code. ( 12 ) THE offence under Bombay Police act :- (A)What has been imputed in relation to offence under Bombay Police Act is about violation of conditions of license. This offence is factually imputed in following term ; "the girls dancing in different closed rooms were presenting dance with inadequate clothes exhibiting their body for creating sex appeal and by violating the terms of license were collecting money from the customers. Waiters, security and those who were observing have shared in the management earning profits therefrom. Those, according to police, offence under Section 131 of the Bombay Police Act was committed due to violation of terms of license as prescribed by Section 33 (w) and (x ). (B)(B) The proceedings in relation to offences under the Bombay Police Act are governed by section 151, which is quoted below; "151. Those, according to police, offence under Section 131 of the Bombay Police Act was committed due to violation of terms of license as prescribed by Section 33 (w) and (x ). (B)(B) The proceedings in relation to offences under the Bombay Police Act are governed by section 151, which is quoted below; "151. It will not, except in obedience to be a rule or order made by the State government or by the competent authority, be incumbent on the Police to prosecute for an offence punishable under sections 177, 119, 131, 134, 137, 129, 140 or 144 when such offence has not occasioned serious mischief and has been promptly desisted from on warning given. " (C) (D)(C) It would reveal from the text of section 151 of Bombay Police Act quoted above, that it is imperative on police officers to essentially take cognizance unless two conditions are fulfilled - (i) that the offence has occasioned serious mischief and (ii) that has not been desisted from in spite of warning and in absence of these two stipulations if directed by the competent officer or Court. In the present case, the charge-sheet does not contain a single line or narrating compliance of prerequisite as given in Section 151. All that reveals is that the very cognizance by the police would be competent unless the ingredients given in Section 151 of Bombay Police Act are complied with as a condition precedent for taking cognizance. (E) (F)(D) The learned Advocate further pointed out that under Rule 225 that the power to inspect and give warning is vested in the licensing authority whenever licensing authority is present during amusement. In the present case neither of the actions complained of is taken by the licensing authority. Therefore, according to the petitioners, all actions taken by the alleged raiding party are without authority of law. The submission of the learned Advocate is well founded from what appears from reading of Rule 225 of the "rules for Licensing and Controlling Places of Public Amusement (other than Cinemas) and Performances for public Amusement including Melas and tamashas". For ready reference Rule 225 is quoted below; 225. The submission of the learned Advocate is well founded from what appears from reading of Rule 225 of the "rules for Licensing and Controlling Places of Public Amusement (other than Cinemas) and Performances for public Amusement including Melas and tamashas". For ready reference Rule 225 is quoted below; 225. Power to stop suspend or cancel a Performance Licence - (1) If any time, it appears to a Licensing Authority, who may be present at any performance in any licensed premises, that the performance is or is about to become objectionable, the licensee shall stop or alter the performance on the representation of such Authority. (2) If at any time it appears to a Police officer not below the rank of a Sub- inspector, who by a general or special order of the District Superintendent of Police of the Licensing Authority is required to attend a performance (no Licensing Authority being present on the premises), that the performance is or is about to become objectionable, the licensee shall stop or alter the performance on the representation of such Police Officer pending the decision of the Licensing Authority on the point. Similarly, if there is likelihood of breach of the peace by the continuance of the performance for any reason directly or indirectly connected with the performance the licensee shall stop the performance on demand by such Police Officer. As it is clear from the above quotation that the power is available to be exercised by the Commissioner only and all other police officers have not been authorised. (G) (H)(E) Conclusion that emerges is that the offence punishable u/s. 131 of Bombay police Act has not been made out spelt-out from fir, and there is no case to proceed adequate enough even for lodgment of FIR. (I) (J)( 13 ) SECTION 30 of Arms Act; the offence under Section 30 of the arms Act is on showing by the prosecution on what is contained in the charge-sheet is not a complete imputation in itself. Section 30 of the arms Act provides for punishment towards the breach of condition of license for holding any fire arm. (I) (J)( 13 ) SECTION 30 of Arms Act; the offence under Section 30 of the arms Act is on showing by the prosecution on what is contained in the charge-sheet is not a complete imputation in itself. Section 30 of the arms Act provides for punishment towards the breach of condition of license for holding any fire arm. A charge-sheet under Section 30 has to be with specific imputation against the accused concerned who holds the valid firearm license, for a charge against him stating that his having committed violation of given conditions of license has thereby rendered himself triable, if found guilty, for punishment under Section 30 of the said Act. Such charge- sheet alone can lead to framing of specific charge. The present charge-sheet containing various imputations does not specify as to how particular accused was responsible for trial for having violated conditions to hold fire arm license. Even the compilation accompanying charge-sheet does not show exact violation, vis-a-vis terms of license on the basis of which the fire arm was possessed by the accused person. The charge-sheet does not spelt out as to how all accused are involved in commission of offence under Arms Act, and also as to how said fire arm and its holder was involved in commission of other offences u/s. 292 and 294 of Indian Penal Code, as also u/s. 131 (b) (v) of bombay Police Act and also towards the offences under Bombay Prohibition Act. All that reveals is that the prosecution has utterly failed to bring home a charge for offence punishable section 30 of Arms Act against the security guard who was charged u/s. 30 of the Arms act, as well other accused. (K) (L)( 14 ) BOMBAY Prohibition Act. The offence punishable under the provisions of Bombay Prohibition Act imputed is in relation to serving of liquor on the table, storing the liquor other than in the licensed premises and in relation to violation of stipulation as to sell liquor to other than the permit holders. All these imputations have got to be very specific namely brining on record the description of licensed premises and recording the statement of witnesses to whom the liquor was served. In fact, all the witnesses who are amongst the customers found sitting in earing house have stated in echo that they were not sitting there for drinking. All these imputations have got to be very specific namely brining on record the description of licensed premises and recording the statement of witnesses to whom the liquor was served. In fact, all the witnesses who are amongst the customers found sitting in earing house have stated in echo that they were not sitting there for drinking. On the basis of what is demonstrated by the petitioners on the basis of imputations contained in the charge-sheet and the evidence produced by the police on record, is such that even if contents of evidence collected by police are not disputed, and are considered to be true, and also adequate, those does not reveal that any offence whatsoever under the Bombay Prohibition Act too has been made out. ( 15 ) THE learned advocate for the applicant placed reliance on the following three judgments; (I) 2005 (1) SCC 122 : [2004 ALL MR (Cri) 3462 (S. C.)] (Zandu pharmaceutical Words Ltd. and others Vs. Mohd. Sharaful Haque and another ). (ii) 1996 Crilj. 449 (M/s. Shastri Sales corporation and others Vs. Income tax Officer ). (iii) 2004 Cri. LJ. 3393 : [2004 ALL MR (Cri) 618] (Narendra H. Khurana and others Vs. The Commissioner of police and another ). (iv) 2002 ALL MR (Cri) 2370 (Ratanalal pralhad Gindodiya Vs. State of maharashtra and others ). ( 16 ) THESE judgments have been relied for following purpose - (I) The first judgment i. e. Zandu pharmaceautical (supra) to plead and contend that when the contents of charge-sheet is not supported by adequate evidence to manifest the commission of offence, the proceedings can be quashed. (II) The second judgment i. e. Shastri sales (Supra) is pleaded in support of contention that when the statute provided for dereliction of any statutory duty which has criminal attribute as well as civil and pecuniary consequences and the later course is as adopted, the criminal proceedings could be quashed. (III) The third judgment i. e. Narendra khurana (Supra) relied upon pertains to the offence under Section 294. (III) The third judgment i. e. Narendra khurana (Supra) relied upon pertains to the offence under Section 294. The Division Bench of this Court has taken a view that when any public place within the meaning of Section 294 in which the hotels presenting cabaret dances would fall, where incident of obscenity is involved, it would not by itself attract provisions of Section 294 if Indian Penal Code without fulfilling all its essential ingredients namely that it causes "annoyance to others" (IV) From the fourth judgment i. e. Ratanlal Gindodiya (Supra) it is clear that the offence under Bombay Prohibition Act for which breach of license is liable to be dealt under the provisions of the Bombay Prohibition act, Rules and the conditions of license, the prosecution is not liable to be lodged nor that by virtue of the declared policy of the State, the Police Officers are not entitled to enter the licensed premises on account of a grievance or a complaint of violation of terms of license. The matters relating to violation of terms of license are to be handled by the Officer under the Bombay Prohibition Act for which the police Officer concerned should report the matter to the nearest prohibition officer for suitable action according to law and departmental action and procedure as per rules. In this case Court found in Paras 13 to 15 as follows :- "13. It is further submitted on behalf of the petitioner that as the petitioner was holding a valid license for possession and sale of liquor as per the terms and conditions of the license issued by the collector, there cannot be any contravention of provisions of Section 66 (1) (b) of the Act. Section 66 (l) (b) of the Act states as follows: 'section 66 (1): Whoever in contravention of the provisions of this Act, or of any rule, regulation or order made or of any licence, permit, pass or authorisation issued thereunder (b) consumes, uses, possesses or transports any intoxicant (other than opium) or hemp, shall, on conviction, be punished' a careful reading of this Section makes it crystal clear that since the petitioner is official licensee, he cannot be charged for illegally possessing foreign and country liquor under section 66 (l) (b) of the Act, as the license authorises him to purchase, store, sell or deal with foreign and country liquor. "14. "14. The question only arises regarding breach of the order, if any, passed by the collector, Dhule and since the offence registered against the excise license for the breach of the order of the Collector, it was obligatory on the part of respondent nos. 3 to 5 to report the matter to the nearest prohibition and Excise Officer for suitable action according to law as per the Circular issued by the Inspector General of Police dated 4-5-1974, which is placed on record at Exh. 'c'. The Circular dated 20-4-1982 repeated the same contents of the Circular issued by the Inspector General of Police. "15. Rule 30 (1) of Chapter 1 of the Bombay police Manual speaks that the Inspector general of Police is the Head of all the police Force in the State. He is the Head of the Police Department and the Adviser to government on all questions of Police administration. He is responsible for the internal discipline of Police Force and for its efficient organization as a means of preventing and checking crime and preserving law and order. Clause (2) of this rule states that all order of Government in this connection, as a general rule, be issued through the Inspector General of Police. Despite of the specific directions issued by the Inspector General of Police as well as by the Government of Maharashtra - the respondent No. 1, the respondent nos. 3 to 5 have not obeyed those directions and instead of obeying the said directions, they themselves took the action which was not desirable at all. Taking into consideration, both the Circulars, referred to above, issued by the Competent Authorities, read with the provisions of law, apparently the action taken by the respondent nos. 3 to 5 for arrest of the petitioner appears illegal. " ( 17 ) IT is thus seen that very cognizance of the non-cognizable offence by police under Bombay Prohibition Act and under bombay Police Act was wholely impermissible and hence liable to be quashed. As regards the offences under Indian Penal Code and Arms act are concerned, on facts, this Court has found that the contents of the charge-sheet and evidence recorded by the police which is brought in support thereto, is grossly inadequate to bring home the imputations of any of the charges for which the trial is sought by the police by filing the charge-sheet in question. ( 18 ) IN the result that F. I. R. No. 3020, dated 10-4-2000 recorded by Shri. S. P. Chavan, Police Inspector, Special Force, Crime branch, Nagpur, and the Charge-Sheet No. 26/ 2000, dated 27-4-2000, filed in the Court of chief Judicial Magistrate, Nagpur are quashed and Case R. C. C. No 279/2000 is hereby dismissed. Rule is made absolute accordingly. Application allowed.