JUDGMENT P.V. Kakade, J.
1. This proceeding has come to us for adjudication by way of reference made by the learned Single Judge (S. S. Parkar, J.) by the order dated 19-9-2000 wherein he held the question which arose in the said petition was of great and general importance and, therefore, it was desirable that it should be placed for hearing before a larger Bench. The learned Single Judge also raised a question for consideration for this larger Bench and directed the matter be placed before the Hon'ble the Chief Justice for referring it to a larger Bench and that is how we are seized with this matter.
2. We have heard for Shri A. G. Sabnis with Shri S. P. Dalal for the petitioners and Shri P. Janardhanan, Addl. Advocate General with Smt. P. H. Kantharia, A.P.P. for the State.
3. By this petition, the petitioners sought quashing of the F.I.R. No. 206 of 1999 dated 7-7-1999 and all proceedings in Criminal Case No. 18/P/2000 pending in the Metropolitan Magistrate's 37th Court, Esplanade, Mumbai for the offence under Section 294 of the Indian Penal Code.
4. The facts giving rise to the petition, in a nutshell, are thus --
The petitioners are running restaurant called "Blue Nile Restaurant" at Colaba, Mumbai. The raid was arranged on the restaurant in the night of 7-7-1999 where cabaret dance was going on and in the course of the dance, the girls were found exposing their private parts and, therefore, the prosecution was lodged. It is the case of the petitioners that the license was granted to them for cabaret dance and the performance was discontinued after the night of the raid. It was urged that prosecution cannot sustain under Section 294 of the Indian Penal Code as there was no annoyance caused to the others which is one of the main ingredients of the offence. It is further pointed out from the chargesheet that no witness has stated that he was annoyed. Further, reliance was placed on the judgments of the Single Judges of this Court taking the view that cabaret dance performance, exposing even private parts, would not amount to obscenity within the meaning of Section 294 of Indian Penal Code. Reliance was also placed on the license which was granted to the petitioners for cabaret performances.
5. The petitioners put reliance strongly on two judgments of this Court delivered by the learned Single Judges on the said point. Reference was made mainly to the judgment in the case of State of Maharashtra v. Miss Joyce, reported in I.L.R. (1973) Bom. 1299. Secondly, reliance was placed on the unreported judgment delivered by Justice Rege on 3-9-1984 in Criminal Application No. 782 of 1984. In the aforesaid judgments, it was held that when a adult person goes to such shows he runs the risk of being annoyed or being entertained by the very obscenities according to his taste. It was further held that the person at a given time witnessing obscenity must be actually annoyed and it was observed that in the absence of special law where cabaret shows are held on the floors of hotel in which adult people are attending on payment, prosecution cannot contend that such cabaret shows come within the purview of Section 294 of the Indian Penal Code having regard to the provision of Sections 87 and 88 of the Indian Penal Code pertaining to an act done by consent in good faith for person's benefit.
6. Referring to these observations, the learned Single Judge, in this petition was of the view that no doubt that Section 294 of the Indian Penal Code required that there must be annoyance to others caused due to obscene performance, however, the interpretation which is given by the learned Single Judges in the above noted judgments was likely to lead to undesirable consequences because, according to him, the words "to the annoyance of others" used in Section 294 cannot be given narrow meaning because it is generally known that the persons who go to enjoy such performances or cabaret dances are interested in the performances of the kind which are exhibited in such restaurants, however obscene they may be. Therefore, the learned Single Judge expressed his view that, merely because the customers who attend such performances do not make a grievance cannot be a ground to allow such performances though on the face of them they are obscene. Hence, the words "to the annoyance of others" has to be judged from the point of view of an ordinary person having good moral values. If the performances are likely to annoy the persons holding good moral character, the provision of Section 294 would be attracted. According to the learned Single Judge, our culture and civilization does not approve of such nude performances in public. The exhibition of private parts of a woman in public place is not in consonance with our cultural ethos, moral standards or our civilization. Our society has not yet approved such performances or conduct in public place like hotels, restaurants wherein adult persons can be permitted on purchase of tickets is against our moral standards and any performance of this kind would constitute an offence of moral turpitude. Such nude performances are immodest, immoral and indecent judged by the standards of our country and our times. Therefore, according to the learned Single Judge, the provisions of Section 29 of the Indian Penal Code are required to be considered in the said perspective. It was not necessary to prove annoyance to establish or make out the case for the annoyance under Section 294 of the Indian Penal Code if the performance otherwise constitutes act which is likely to annoy a person having decent moral character or when such annoyance can be inferred in the given circumstances.
7. In the aforesaid circumstances, the learned Single Judge formulated a question for consideration of this Bench as follows:--
"Whether the nude cabaret dances which are per se indecent and obscene, held in a restaurant on purchase of tickets would warrant prosecution under Section 294 of the Indian Penal Code in the absence of express evidence of annoyance by any of the persons who attend such shows ?"
Therefore, the question formulated by the learned Single Judge is two-fold. Firstly, it raises a question whether indecent and obscene performance per se would be sufficient to attract the provision of Section 294 of the Indian Penal Code and secondly, if such performance is held in a restaurant on purchase of ticket, then whether it would warrant prosecution under Section 294 of Indian Penal Code. In other words, the query raised by the Single Judge required consideration to the effect that, whether in absence of evidence of "annoyance to others" the prosecution under Section 294 can withstand and further whether the restaurant where the show is conducted would be a public place within the meaning of Section 294 of Indian Penal Code or not.
8. At the outset, we must refer to the provision of Section 294 of Indian Penal Code.
"294. Obscene acts and songs.--Whoever, to the annoyance of others.
(a) does any obscene act in any public place, or (b) sings, recites or utters any obscene song 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." Therefore, the object and scope of the said provision is intended to prevent a obscene act being performed in public to the annoyance of public at large. The essential ingredients of the offence under this section are as follows :-- i) an act must have been done in a public place; ii) the said act must be obscene; and iii) the same must cause annoyance to others.
Time and again it is well established that mere performance of obscene or indecent act is not sufficient but there must be a further proof to establish that it was to the annoyance to others. Annoyance to others is essential to constitute an offence under this section. Where there is no evidence recorded about the language used or act done causes annoyance to anybody, a conviction under this section cannot be sustained. From the wording of this section it is clear that annoyance should be caused to the others. This section does not limit the scope of the word "others" to mean the person who is intended victim of the obscene act. It is enough if the obscene act is committed in public and causes annoyance to anybody be he the contemplated victim of the offender or not.
This being the established legal position, let us now turn to the two rulings of this Court of the learned Single Judges. Justice Vaidya in his judgment in the case of State of Maharashtra v. Miss. Joyce reported in I.L.R.(1973) Bom. 1299, had occasion to deal with dilemma with which we are dealing with today. Incidentally, the case arose from the incident which took place at Blue Nile Hotel. The learned Single Judge observed that, when an adult person pays and goes to attend such show he runs the risk of being annoyed by the obscenities 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 the 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 Section 294 of Indian Penal Code are caused without the consent express or implied of the adult persons attending such cabaret dance on the floor of the hotel. He further expresses his doubt whether a hotel like Blue Nile could be considered to be a public place as contemplated by Section 294 of the Indian Penal Code when an admission fees is required to be paid for cabaret shows. He also relied on the unreported judgment of Justice Rege in Criminal Appeal No. 1541 of 1971 decided on 20-6-1973. Justice Rege in his judgment observed thus --
"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 would 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 persons at a given time witnessing a particular obscene act was actually annoyed or not."
Taking into consideration the up-till now established position as reflected by judgments of the Single Judges referred to above, it appears to be the rule that wording of Section 294 does not admit of any wide interpretation than what can be gathered from the plain reading thereof. In this reference, the learned Single Judge (S.S. Parkar, J.) has expressed apprehension that such interpretation may lead to undesirable consequences especially if we take into account our cultural thoughts and moral standards of our civilization. It is indeed true that our society has not yet come to appreciate such performances or conduct in public. However, in our considered view, we cannot overlook the plain meaning of the legislative enactment in this regard i.e. the wording of Section 294 of the Indian Penal Code.
9. The Apex Court in the case of Union of India v. Devakinandan, reported in AIR 1992 SC 96 has observed that, it is not the duty of the Court either to enlarge the scope of the legislature or the intention of the legislature when the language of the provision is plain and unambiguous. The Court cannot re-write, recast or re-frame the legislation for the very good reason that it has no power to legislate. The power to legislate has not been conferred on the Courts. The Court cannot add words to a statute or read words into it, which are not there. Assuming there is a defect or a omission in the words used by the legislature, the Court cannot go on to correct or make up the deficiencies. The Courts shall decide what the law is and not what it should be. The Courts of course adopts a construction which will carry out the obvious intention of the legislature but cannot legislate itself.
It is also cardinal principle of the interpretation of statutes as observed by the Supreme Court in the case of Shri Ram v. State of Maharashtra, , that where the language of a Act is clear and explicit, we must give effect to it, whatever, may be the consequences for, in that case, the words of the statute speak of the intention of the legislature. If any statutory provision is capable of only one construction, then it would not be open to the Court to put up a different construction upon the said provision merely because the alternative construction would lead to unreasonable or undesirable consequences. The question of consequences and considerations of policy would be relevant only where the provision sought to be construed is capable of two constructions. In such a case, the Court is not concerned with the results which may ensue from giving to the plain meaning of the words used by the legislature. If these results are unfortunate, it is for the legislature to take action, the remedy, the defects of the law as enacted. It is not for the Courts to usurp the functions of the legislature and by straining the meaning and canalizing the clear terms of the law to seek to evade consequences which, in the opinion of the Court, may prove ill-fraught. This rule applies with extra vigor while interpreting the penal statutes. The Division Bench of this Court in the case of State of Maharashtra v. Nanaji Kalu Jadhav, reported in 1952 Mh.LJ. 565 has observed that any expansion of the definition or any deeming fiction while interpreting the express provision of law is normally not permissible in criminal prosecution.
It must be noted the proper course in interpreting a statute in the first instance is to examine its language and them ask what is the natural meaning uninfluenced by the considerations derived from previous state of law and then assume that it was property intended to leave it unaltered. It is settled legal position, therefore, that the Courts must try to discover the real intent by keeping the diction of the statute intact. Therefore, if we apply this established legal position in respect of interpretation of statute, we are of the considered view that we cannot read what is not in the definition of Section 294 of the Indian Penal Code. In other words, when it says "annoyance to others" is a prerequisite to invoke the provision, then the issue of "obscenity or indecency per se" will not arise until and unless there is evidence on record to see that a person at a given time witnessing particular obscene act was actually annoyed or not.
10. This issue has also a different but an equally important facet. While enacting the Statute, the Legislature in its wisdom appears to have deliberately kept the rider to the effect that, in order to bring home the guilt of offence under Section 294, it is essential to establish the factum of "annoyance to others" by way of proper evidence, obviously with intention to rule out element of subjective satisfaction of the prosecuting machinery, lest it should be misused. In other words, if the theory of "obscenity per se" is made applicable to the provision of Section 294 of the Indian Penal Code, then there is every possibility of its misuse because the citizens would be exposed to the whim and wishes of the prosecuting agency without further proof. Hence, in our view, the Legislature, while insisting on proper evidence to prove annoyance, has provided due safeguard to protect citizens at large to eliminate possibility of misuse of the provision at the hands of the concerned authorities.
11. Therefore, we answer the first limb of the question raised in this reference in the negative and state that act per se indecent and obscene would not warrant prosecution under Section 294 of the Indian Penal Code in absence of express evidence of annoyance by any of the persons who attended such show. We may hasten to note that the reference is limited to the question involved pertaining to the provision of Section 294 of the Indian Penal Code. However, in our considered view, the law enforcement machinery has ample power to proceed under different laws, for instance, Section 110 of the Bombay Police Act, 1951, or for that matter, Rules for Licensing and Controlling Places of Public Amusement (other than cinema) and Performances for Public Amusement including Melas and Tamashas 1960 and Rules for place of public entertainment license, whereunder any indecency of dress, dance or gesture is prohibited by the holder of the Performance License. Besides this aspect, we may also note that if the State wants to prohibit such cabaret shows as wrongful exploitation of sex or socially harmful, or indecent, it has been open to enact some special legislation. But in absence of any such special law we do not see that the prosecution can contend or prove that such obscene act would come within the purview of Section 294 of the Indian Penal Code without cogent and conclusive evidence to establish annoyance caused to others.
12. We now turn to the second limb of the question referred to us. In his ruling, in the case of State of Maharashtra v. Miss Joyce, reported in I.LR. (1973) Bom. 1299 (supra). Justice Rege has observed that he has grave doubts as to whether places like Hotel Blue Nile could be considered to be such a public within the meaning of Section 294 with an admission fees as required to be paid for the cabaret shows as was done in that case. He proceeds to observe that when an adult person pays and goes to attend such a shows he runs a risk of being annoyed by the obscenity or being entertained by the very obscenities according to his tastes. From these words a doubt is raised, whether hotels like the one involved in this case are public places or not.
In our considered view, an enclosed area in a posh hotel where cabaret dance is performed cannot be said to be a private place merely by reason that entry is restricted to persons purchasing the highly priced tickets and costly food and drinks are served. A posh hotel is as much a public place as a cinema house. Entry to a hotel just like a cinema house cannot be and is not being restricted to anybody. A hotel must definitely be placed accessible to all except perhaps subject to reasonable restrictions allowed by law. It continues to be a public place. If any portion of the hotel is earmarked for persons who opt to pay a particular amount, it does not cease to be a public place for that reason, because without discrimination anybody will have access on such payment. Therefore, there is no point in contending that a portion of a hotel where the only restrictions for entry on some payments is not a public place. Otherwise, the result will be that any public place could be made a private place by enclosing the same and restricting entry to persons who can afford payment of huge amounts. If "public place" is determined on the amount of money, one may have to shell out for securing admission the position will be pitiable and it will only tend to judicial recognition of corruption. If what is prohibited in a cinema house where people are admitted for charges within their reach is not taboo for the rich who could afford to witness such shows for higher tickets with additional amounts for drinks and food, the position is really ridiculous. The position will be that those who could afford enormous amounts could conduct or witness obscene acts with impunity. That is not the legal intent. If that principle is accepted the criterion for deciding a public place will be the amount that is expended for getting entry. If so a cinema house also will cease to be a public place if the ticket charges are enormously increased and it is provided that consumption of costly food and drinks on payment is also a must. That is not what the law intended as the criterion for deciding whether a place is public or not. If that is the criterion every public place could be converted into a private place by restricting entry to rich persons who alone could afford the luxury. The result will be that any obscenity which is prohibited to the poor will not be a prohibited obscenity for the rich. That will lead to a very unhappy position. So also previous advertisement of what is going to be performed cannot have the effect of converting a public place into a private place or obscenity into something which is not obscene.
Of course, as observed the Division Bench of the Kerala High Court in the case of K.P. Mohammed v. State of Kerala, reported in 1984 Cri.L.J. 745, "decency" and "morality" are terms of wide and variable contents. On a sensitive issue like this, the Court would not make a dogmatic approach as the concept of "decency" and "morality" are not static and are bound to change from place to place, from time to time and from people to people and from age to age. Be that as it may. We are very clear in our view that, the place like the hotel involved in the present case would be public place within the meaning of Section 294 of the Indian Penal Code irrespective of the fact that entry of such cabaret shows conducted there is restricted by tickets.
Therefore, we answer the second limb of the query raised by the learned Single Judge to the effect that restaurants where cabaret dances are held and where entry is restricted by purchase of tickets would also come within the purview of the term "public places" as contemplated under Section 294 of the Indian Penal Code.
13. To sum up, we are of the considered view that, (i) cabaret dances where indecent and obscene act per se is involved, would not attract the provision of Section 294 of the Indian Penal Code without fulfilment of its essential ingredients i.e. Evidence pertaining to "annoyance to others' and (ii) the hotels like the one where cabaret dances are performed and entry is restricted by purchase of the tickets, would still be the public places within the meaning of Section 294 of the Indian Penal Code.
With these observations, we return the reference to the learned Single Judge to deal with it according to law.
Office is directed to place the proceeding before the learned Single Judge.