short question that arises for consideration is,
“ Whether any obscene act in a private place causing no
annoyance of others constitutes an offence punishable
under section 294 of I.P.C. ? ”
10. Before adverting to this aspect on merits, it would
be useful to reproduce the provisions of section 294 of I.P.C.
for ready reference. This section reads as under:-
“ 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.”
11. From the perusal of the above penal provision
which is invoked against petitioners / accused persons, it is
seen that any obscene act for constituting offence punishable
under section 294 of I.P.C. needs to be done in any public
place and the same is also required to cause an annoyance to
others. Similarly, if any person recites or utters obscene song,
ballad or words, in or near any public place, thereby causing
annoyance to others, then he can be said to have committed
an offence punishable under section 294 of I.P.C. Keeping in
mind these ingredients of section 294 of I.P.C., let us examine
whether averments made by informant prima facie fulfills
requirement of the offence punishable under section 204 of
I.P.C.
12. The main ingredient of section 294 of I.P.C. is
commission of an obscene act at a public place. The Black's
Law Dictionary, Eight Edition defines public place as under:-
“public place – Any location that the local, state or
national government maintains for the use of the public,
such as a highway, part, or public building. ”
13. Section 294 of I.P.C. is meant for punishing persons
indulging in obscene act in any public place causing
annoyance to others. As such, the places where such obscene
act is committed needs to be a public place and meant for use
of public at large. Public must have free access to such place
so as to call it a public place. The place where public have no
right rather a lawful right to enter into, cannot be said to be a
public place for invoking the penal provisions of section 294 of
I.P.C. for calling a place as a public place. It must be shown
that public at large has a right to have free ingress to such
place. Viewed from this angle, the flat / apartment in building
owned by some private person meant for private use of such
owner cannot be said to be a public place. It is not the case
of respondents that any member of the public has free access
to the flat bearing Flat No.C-201 located in Evershine Cosmic,
Kureshi Compound, Andheri (W), Mumbai. For resorting to the
penal provision of section 294 of I.P.C., the prosecution is
obliged to make out that the obscene act were performed at a
public place or singing, recitals, or utterances of any obscene
song, ballad or words were done in any public place.
14. Careful perusal of the F.I.R. lodged by informant
Mr.Jagjit Girmile and that too after conducting raid by police
along with panch witnesses does not show that the Flat No.C-
201, Evershine Cosmic, Kureshi Compound, Andheri (W),
Mumbai where the offence is alleged to have taken place is a
public place, wherein any member of the public had free and
lawful right to enter into. The F.I.R. in question was lodged on
the basis of prior intimation given by the informant Jagjit
Girmile to police and after conducting raid in presence of two
panch witnesses by police squad. Naturally, the F.I.R. which is
lodged subsequent to the raid is reflecting the entire episode.
The F.I.R. in question vividly describes each and every
particulars of the event right from the receipt of information,
preparation for raid and post raid events allegedly occurred in
Flat No.C-201 Evershine Cosmic, Kureshi Compound, Andheri
(W), Mumbai witnessed by the raiding police party. There is
no whisper in the F.I.R. that sound of music was being emitted
out from the flat in question and that too, to the annoyance of
the neighbourers and others. Rather, perusal of the F.I.R.
reveals that when the raiding party rang the door bell and
when members of the raiding party entered inside the flat,
they heard sound of music coming from the last room of the
flat. The F.I.R. does not disclose that sound of music coming
from the flat was annoying others. Similarly, the F.I.R. lodged
after the raid does not indicate that the activities which were
allegedly happening inside the flat were causing annoyance to
neighbourers or others. As such, even if the averments and
allegations made in the F.I.R. are accepted as it is, then also, it
cannot be said that the material contained in the F.I.R.
discloses any conginable offence, even prima facie. Obscene
act done in a private place or viewed in privacy is not covered
by the provisions of section 294 of I.P.C.
CRIMINAL APPELLATE JURISDICTION
WRIT PETITION NO.127 OF 2016
Amardeep Singh Chudha,
V/s.
The State of Maharashtra
CORAM : NARESH H. PATIL AND
A.M. BADAR, JJ.
DATED : 10TH MARCH, 2016
Citation:2016 ALLMR(CRI)2195
1. On oral prayer made by learned counsel for the
petitioners, respondent No.2 is allowed to be deleted at his
risk.
Heard. Rule. Rule, made returnable forthwith. By
consent of the parties, the petition is heard finally.
2. By this petition filed under Article 226 of the
Constitution of India read with section 482 of the Code of
Criminal Procedure, 1973 (for short “Cr.P.C.), petitioners are
praying for quashing of the F.I.R. registered against them by
Amboli police statIon, Mumbai vide C.R. No. 388/2015 for
offence punishable under section 294 read with 34 of Indian
Penal Code, 1860 (for short the 'I.P.C.').
3. The facts in nutshell leading to the institution of the
present petition can be summarized as under :-
On 12th December, 2015 informant Jagjit Girmile, a
Journalist, initially informed the Assistant Commissioner of
Police, Andheri, Mumbai that a private party is going in Flat C-
201, Evershine Cosmic, Kureshi Compound, Andheri (W),
Mumbai wherein some women dressed scantily are dancing
and making obscene gestures to the customers and that the
customers present thereat are showering money on them for
encouraging them to make obscene gestures. In pursuant to
this information, the Assistant Commissioner of Police,
informed police personnel from Amboli and Oshiwara police
stations to take necessary action. Thereafter, police organized
for a raid by arranging two panch witnesses. Police party
along with panch witnesses went to the said flat and rang the
door bell. When a woman opened the door of that flat, police
entered in the flat and they heard sound of music coming from
the inner room. They found that in the last room of that flat,
six women, scantily dressed, were dancing and men sitting
there were consuming liquor. Police further found that some
people were showering money on those women. Police then
took charge of the articles, such as disco light, speaker, two
bottles of liquor, etc.
4. By issuing notice under section 46(1) of the Cr. P.C.,
those six women, so also the owner of the flat were asked to
attend police station in the next morning. Men present there
were taken to the police station for further action.
Subsequently, on the basis of the report lodged by Mr.Jagjit
Girmile, crime in question came to be registered against
present petitioners as well as others for the offence
punishable under section 294 read with 34 of I.P.C. By the
present petition, petitioners are praying for quashing the said
F.I.R.
5. Learned counsel appearing for the petitioners
vehemently argued that the flat in question cannot be said to
be a public place where anyone could have access. Whatever
activities is alleged by police took place in the flat, which
cannot be said to be a public place. As such, it cannot be said
that the petitioners / accused in the said crime are prima facie
liable for penal consequences as provided in section 294 of
the I.P.C. Therefore, according to learned counsel for the
petitioner, the petition deserves to be allowed.
6. As against this, according to learned APP, on the
basis of information received, raid was conducted wherein it is
found that those women were indulging in obscene act at the
place of incident and those obscene acts were being viewed
by petitioners as well as other persons. As such, according to
learned APP, prima facie, it cannot be said that the provisions
of section 294 of I.P.C. are not attracted.
7. Upon being asked by this Court, after taking
instructions from the concerned police officer present in the
Court, learned APP submitted that except section 294 read
with 34 of I.P.C., no other offence is levelled against accused
persons including petitioners in Crime No.388/2015.
According to learned APP, the Investigating Officer has found
that persons accused in the said crime have not committed
any offence, except the offence punishable under section 294
of I.P.C.
8. We have perused the material placed on record,
including the F.I.R. as well as the pleadings of the parties. We
have given careful consideration to the rival submissions
advanced by the parties.
9. Considering the challenge in the instant petition,
short question that arises for consideration is,
“ Whether any obscene act in a private place causing no
annoyance of others constitutes an offence punishable
under section 294 of I.P.C. ? ”
10. Before adverting to this aspect on merits, it would
be useful to reproduce the provisions of section 294 of I.P.C.
for ready reference. This section reads as under:-
“ 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.”
11. From the perusal of the above penal provision
which is invoked against petitioners / accused persons, it is
seen that any obscene act for constituting offence punishable
under section 294 of I.P.C. needs to be done in any public
place and the same is also required to cause an annoyance to
others. Similarly, if any person recites or utters obscene song,
ballad or words, in or near any public place, thereby causing
annoyance to others, then he can be said to have committed
an offence punishable under section 294 of I.P.C. Keeping in
mind these ingredients of section 294 of I.P.C., let us examine
whether averments made by informant prima facie fulfills
requirement of the offence punishable under section 204 of
I.P.C.
12. The main ingredient of section 294 of I.P.C. is
commission of an obscene act at a public place. The Black's
Law Dictionary, Eight Edition defines public place as under:-
“public place – Any location that the local, state or
national government maintains for the use of the public,
such as a highway, part, or public building. ”
13. Section 294 of I.P.C. is meant for punishing persons
indulging in obscene act in any public place causing
annoyance to others. As such, the places where such obscene
act is committed needs to be a public place and meant for use
of public at large. Public must have free access to such place
so as to call it a public place. The place where public have no
right rather a lawful right to enter into, cannot be said to be a
public place for invoking the penal provisions of section 294 of
I.P.C. for calling a place as a public place. It must be shown
that public at large has a right to have free ingress to such
place. Viewed from this angle, the flat / apartment in building
owned by some private person meant for private use of such
owner cannot be said to be a public place. It is not the case
of respondents that any member of the public has free access
to the flat bearing Flat No.C-201 located in Evershine Cosmic,
Kureshi Compound, Andheri (W), Mumbai. For resorting to the
penal provision of section 294 of I.P.C., the prosecution is
obliged to make out that the obscene act were performed at a
public place or singing, recitals, or utterances of any obscene
song, ballad or words were done in any public place.
14. Careful perusal of the F.I.R. lodged by informant
Mr.Jagjit Girmile and that too after conducting raid by police
along with panch witnesses does not show that the Flat No.C-
201, Evershine Cosmic, Kureshi Compound, Andheri (W),
Mumbai where the offence is alleged to have taken place is a
public place, wherein any member of the public had free and
lawful right to enter into. The F.I.R. in question was lodged on
the basis of prior intimation given by the informant Jagjit
Girmile to police and after conducting raid in presence of two
panch witnesses by police squad. Naturally, the F.I.R. which is
lodged subsequent to the raid is reflecting the entire episode.
The F.I.R. in question vividly describes each and every
particulars of the event right from the receipt of information,
preparation for raid and post raid events allegedly occurred in
Flat No.C-201 Evershine Cosmic, Kureshi Compound, Andheri
(W), Mumbai witnessed by the raiding police party. There is
no whisper in the F.I.R. that sound of music was being emitted
out from the flat in question and that too, to the annoyance of
the neighbourers and others. Rather, perusal of the F.I.R.
reveals that when the raiding party rang the door bell and
when members of the raiding party entered inside the flat,
they heard sound of music coming from the last room of the
flat. The F.I.R. does not disclose that sound of music coming
from the flat was annoying others. Similarly, the F.I.R. lodged
after the raid does not indicate that the activities which were
allegedly happening inside the flat were causing annoyance to
neighbourers or others. As such, even if the averments and
allegations made in the F.I.R. are accepted as it is, then also, it
cannot be said that the material contained in the F.I.R.
discloses any conginable offence, even prima facie. Obscene
act done in a private place or viewed in privacy is not covered
by the provisions of section 294 of I.P.C.
15. At this juncture it would be pertinent to note that
the provisions under section 482 of CR.P.C. enables this Court
to quash criminal proceedings even in those cases which are
not compoundable. Such power is to be exercised sparingly
and with caution. To secure the ends of justice and to prevent
abuse of process of Court, such power is required to be
exercised in appropriate cases. In case of State of Harayana
and others V/s. Ch. Bhajan Lal and Ors. reported in 1992
Cri. L.J. 527, Hon'ble Supreme Court has carved out the
categories where the High Court may exercise powers under
Article 226 of the Constitution or under section 482 of the
Cr.P.C. One of such category is where the allegations made in
the F.I.R. or alleged in complaint, even if they are taken at
their face value and accepted in their enterity, do not prima
facie constitute any offence or make out a case against the
accused. In the case in hand, even if the averments made in
the F.I.R. lodged meticulously after conducting raid at the spot
of incident are taken at their face value and accepted in their
enterity, do not prima facie constitute an offence punishable
under section 294 of I.P.C. Obscene act alleged in the F.I.R.,
as per averments made in the F.I.R., was not being conducted
at a public place and that too to the annoyance of others.
16. Before parting with the judgment, we deem it
proper to put on record that recitals in the F.I.R. itself show
that after entering inside the flat, raiding party heard sound of
music coming from inside the flat bearing No.C-201, Evershine
Cosmic, Kureshi Compound, Andheri (W), Mumbai wherein the
incident is alleged to have happened. The F.I.R. does not
reflect annoyance, if any, being caused to the public because
of activities allegedly going on inside the flat. It cannot be said
that police officers from the raiding party as well as the officer
who registered the F.I.R. were aware of the provisions of
section 294 of I.P.C. Recitals in the F.I.R. goes to show that
incident alleged therein had not happened in a public place.
As such, we fail to understand as to how the F.I.R. came to be
registered only for the offence punishable under section 294
read with 34 of I.P.C. Police officer present in the Court today,
at the time of hearing upon our query has categorically
informed to learned APP that no other offence is attracted in
the instant case. In these circumstances, we deem it
appropriate to send a copy of this judgment for appraisal of
the Commissioner of Police, Mumbai. Registry (Judicial) to
take appropriate steps for forwarding a copy of this judgment
for appraisal of the Commissioner of Police, Mumbai.
17. In the result, the petitioners succeed. The petition
is allowed. Rule is made absolute in terms of prayer clause
(a). The F.I.R.No.388/2015 registered against the petitioners
at Amboli police station, Mumbai for offence punishable under
section 294 read with 34 of the Indian Penal Code is quashed
and set aside.
(A.M.BADAR, J.) (NARESH H. PATIL, J.)
No comments:
Post a Comment