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TMI Blog2003 (12) TMI 653X X X X Extracts X X X X X X X X Extracts X X X X ..... opolitan 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his 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 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 e ..... X X X X Extracts X X X X X X X X Extracts X X X X
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