Delhi District Court
State vs Manmohan Kalra & Ors. on 31 May, 2014
IN THE COURT OF Ms. VEENA RANI, CHIEF METROPOLITAN
MAGISTRATE, DISTRICT SOUTH EAST, SAKET COURT, NEW DELHI.
STATE VERSUS Manmohan Kalra & Ors.
FIR No. 391/2006
U/s 294/109/34 IPC
P. S. Nazarat Nizamuddin (Crime Branch)
Date of filing of the charge sheet : 02082006
Date of reserving order : 22052014
Date of pronouncement : 31052014
JUDGEMENT
(a) Computer Generated Number of the : 02406R0712052006 case
(b) The date of the commission of the : 03062006 offence
(c) The name of the complainant : Sh. Rajeev Kumar Chaudhary S/o Sh. Jaiveer Singh, R/o 1329, SectorCI, Vasant Kunj, Delhi.
(d) The names of the accused persons i. :(1) Manmohan Kalra @ Babbu S/o Sh. Kishan Lal Kalra, (2) Isha D/o Kabir, (3) Rekha W/o Robin, (4) Maya Rawat D/o Sh.
S.K. Rawat, (5) Karina D/o Kishan Lal, (6) Kiran Gupta D/o Sh. Chote Lal Gupta, (7) Maya Singh (Declared Proclaimed offender vide order dated 13032014) W/o Rajender Singh, (8) Nancy D/o FIR No.391/06 State Vs. Manmohan Kalra & Anrs. 1/29 Ishlam, (9) Tabbasum Sidiki D/o Gulam Md. Sidiki, (10) Pooja D/o Rambir, (11) Krishna W/o Kapil Dev Gilani, (12) Lily Das D/o P.K. Das, (13) Renu Saxena W/o Sharat Saxena & (14) Anjali (Declared Proclaimed offender vide order dated 13032014) D/o Surender Yadav.
(e) The offence complained of : U/s 294/109/34 IPC (f) The plea of the accused persons : Pleaded not guilty (g) The final order : All accused persons acquitted (except accused Anjali & Maya Singh who were Declared Proclaimed offender vide order dated 13032014) (h)The date of the order : 31052014 PROSECUTION CASE:
1. In the present case, the charge sheet was filed U/s 294/109/34 IPC by the Crime Branch of Delhi Police, on the basis of complaint of one Sh. Rajeev Kumar Chaudhary who stated in his complaint dated 03062006 that in Rajdoot Hotel girls used to perform obscene act while performing dance and instigate the people for sex who came to see their dance. On the basis of the complaint dated 03062006, a raiding party was prepared, 4/5 public witnesses were also joined and raid was conducted in Eldorado Restaurant in Hotel Rajdoot, there many girls were found dancing on the stage and doing FIR No.391/06 State Vs. Manmohan Kalra & Anrs. 2/29 obscene act while performing dance and were instigating the people for sex, the girls were performing the said acts on the instigation of one person having French beard namely Baboo Kalra, who was the owner of the Hotel and standing near the stage and 13 girls along with hotel owner Kishanlal Kalra @ Baboo Kalra were apprehended. Thereafter case was registered and after investigation, the present charge sheet was filed.
2. Cognizance of the offence was taken by the Ld. Predecessor of this court vide order dated 24042007 against the accused person and copies of charge sheet supplied to accused. Charge was framed against the accused persons for an offence U/s 294/109/34 IPC on 12052010 to which accused persons had pleaded not guilty and claimed trial.
3. The prosecution in order to prove its case had examined 5 witnesses namely PW1 Sh. Kamal Sharma, PW2 Sh. Ramesh Behl, PW3 Sh. Anil Kumar, PW4 ASI Jag Mohan & PW SI Pushpa Yadav.
4. PW1 Sh. Kamal Sharma in his examinationinchief deposted that on 03062006 he was working as a Manager at Hotal Rajdoot and on that day a dance show was being in progress in their hotel, at about 10.15 pm 1012 persons entered into the hotel, he was in the Lobby at that time, he welcomed them as if they are the guest, on his asking they informed PW1 that it is raiding party. PW1 further deposed that they all were not in the uniform and the raiding party told PW1 that they have come to raid the hotel because hotel is running the show illegally. PW1 deposed that he informed the ACP that the programme is being run under the licence and there is nothing illegal, the raiding team did not inquire any other things from him, the raiding team went FIR No.391/06 State Vs. Manmohan Kalra & Anrs. 3/29 inside where the programme was going on, thereafter they came out and asked PW1 to stop selling the ticket and took over two ticket books from him. It is deposed by PW1 that he handed over the same to the police. One counter slip from Serial No.23501 ti 23600 and one ticket book from Serial No.23601 to 23700, out of which the foil from 23601 to 23651 are counter slips shown to the witness and witness correctly identified the same. It is also deposed by PW1 that Police also asked him to bring two currency note of Rs.500/ each and police also specified him the number put on the currency notes but he does not remember that numbers. PW1 deposed that he brought two currency notes of Rs.500/ denomination of the specified number and handed over to the police and Police seized the same. During the examination of PW1 the Identity of currency notes were not disputed by counsel for accused.
During his cross examination by Sh. H.R. Khan Suhel, Learned Counsel for all the accused persons except accused Lily Dass, PW1 stated that he was employed as Manager in Hotel Rajdoot for the last about 19 years, Hotel Rajdoot is a three star property and they are possessing all the valid licences including the dance performance, the licence was for Indian Film Songs which are mentioned in all the licence, he did show all the licences to the police when they first came on the counter of the lobby, he handed over photocopy of all the licence to the police party. During his cross examination PW1 stated that he has brought the photocopy of licences of eating house, lodging house and for holding dance shows i.e EX.PW1/XP1 to EX.PW1/XP3, originals have been deposited in DCP Licencing office for renewal of licences and all the licences were valid licences on the relevant dates, the dance licence FIR No.391/06 State Vs. Manmohan Kalra & Anrs. 4/29 EX.PW1/XP1 was valid upto 31122006 encircled as at point A, the licence was continuously running its validity from 16122004. PW1 further stated that the raiding party was carrying a video camera which was rolling and they recorded the dance show inside the restaurant and all the proceedings, the dance floor in the hotel is about 9 X 5 ft and that can accommodate only one dancer at one time, there were two shows in the hotel, one was from 8 to 10 and 10 to 12. It is further stated by PW1 that there were 1112 girls who were on our contract and they used to perform about 20 Indian Songs in two hours, one by one, the dancing girls used to wear almost the same cloths which a film heroin wear in the film to bring similarity and should be more soothing for the audience. PW1 stated that after one song, the other performer used to come to the stage for the other song, the raiding party took the girls from the hotel in the same dresses which they were wearing and were waiting for their turn to perform at the stage, one makeup lady who was aged about 50 years was also made an accused in this case. It is stated by PW1 that for the purpose of security on the instruction of DCP licencee there were CC TV installed in the restaurant and outside the hotel and corridor and we used to maintain the recording of all the activities in the hotel but after raid the police officials took away all the recordings in video cassettes with them.
Cross examinatin of PW1 by Sh. Akshay Kumar counsel for accused Lily Dass was nil despite opportunity (as above crossexamination is adopted for accused Lily Dass).
5. PW2 Sh. Ramesh Behl During his chief examination deposed that on 03.06.2006 he went to the Rajddot Hotel to see Kathak Dance as per the FIR No.391/06 State Vs. Manmohan Kalra & Anrs. 5/29 advertisement he purchased a ticket no. 23631 of Rs. 500/, when he went inside he saw 57 girls dancing there in one time, they were wearing short dresses, exposing their body parts, he sat there on one seat and started watching the dance, the dancing girls were giving obscene signals, by their signal they were calling customers towards themselves. PW2 further deposed that accused present in the court i.e. Manmohan Kalra was also there and was giving directions to the girls for dance. It is deposed by PW2 that on seeing all this he decided to go out and when he was in process to go police came inside and stopped everything and made girls and accused to sit there and police recorded his statement and statement of one Sh. Anil. PW2 deposed that he did not notice any camera in the hand of police person. He haded over the aforesaid ticket to the IO and the same was seized vide seizure memo Ex.PW2/A which bears his signature at point A. PW2 was cross examined at length by Sh. H.R. Khan Suhel, Counsel for all the accused persons except accused Lily Das. During his cross examination PW2 stated that he is having a car accessories shop in Karol Bagh. It is stated by PW2 that he came to know from public that Kathak Dance is being displayed in Rajdoot Hotel that is why he had gone there. During his cross examination PW2 stated that he can tell the name of ACP of raid his name was Sh. P.P. Singh but he cannot say whether Sh. P.P. Singh, ACP was caught red handed while taking illegal bribe of Rs. 50,000/ in Karol Bagh area or not. PW2 denied the suggestion that he was known to the members of the raiding party of this case. PW2 stated that he did not say anything to any of the staff members about his objection to the said dance FIR No.391/06 State Vs. Manmohan Kalra & Anrs. 6/29 show in place of Kathak Dance. It is stated by PW2 that the show started about 11.00 pm, after the raid police started other proceedings in his presence. PW2 further stated that the stage on which dance was going on probably 810 ft width, 57 persons were plying the instruments on that stage itself, there was very high voltage light and it was difficult to recognize the faces with the change of the lights, there were about 4050 chairs around the stage, the house was full. It is stated by PW2 that the girls were taken from the hotel to the police station in the same cloths which they were wearing while performing but he did not go to the police station, his statement was recorded in the hotel itself on that day. PW2 admitted the suggestion that there was very high and loud sound and it was very difficult to hear the voice of other persons. PW2 stated that he left the hotel at about 34 am by taking out my car from the parking and he did not meet the IO thereafter and met him today outside the court. PW2 denied that he was not present at hotel and he is a planted witness by the police. PW2 further denied that he did not go to see the dance on that day. PW2 also denied that the performance of the girls were based on the Indian dances or that girls were wearing regular normal dresses and were dancing on the Indian filmy songs. It is denied by PW2 that the police during the raid recorded everything in the video camera. PW2 admitted that Mr. P.P. Singh, ACP of this case was apprehended by CBI in Karol Bagh Area while taking the bribe. PW2 further admitted that this incident was in my notice and I am intentionally not telling this fact before this court.
Cross examination by Sh. Manoj Tiwari, Counsel for accused Lily Dass was nil despite opportunity given as he has adopted the same cross FIR No.391/06 State Vs. Manmohan Kalra & Anrs. 7/29 examination as done by the counsel for other accused persons.
6. PW3 Sh. Anil Kumar has deposed in his examinationinchief that on 03.06.2006 he went to Rajdoot Hotel to see the dance and when he went inside the hall first he saw the dance of the girls in Gaghra and Choli and thereafter in panties and bras, there were about 1213 girls and they were coming one by one on the stage, he can identify few of the girls if shown to him and not all the girls. PW3 further deposed that he sat there on one seat and started watching the dance, the girls were giving dirty obscene signals, by their signals they were attracting viewers towards themselves and because of that the atmosphere was becoming surcharge, the accused present in the Court today i.e. Kalra was standing near the stage and he was directing the dancing girls and was giving the direction to dance in a particular fashion and that was obscene, because of that he was getting bad thoughts and when he was about to go the police raided and Police started enquiry from everybody and from him also. It is deposed by PW3 that the dance performance was stopped and his ticket was taken by the police which is Ex.PW3/A, the seizure memo of the ticket is Ex.PW3/D which bears his signature at point A. PW3 further deposed that the police also seized the ticket of Mr. Ramesh Behl and IO recorded his statement. PW3 deposed that he can identify the other accused persons. The identity of the other accused persons is not disputed.
PW3 was also cross examined at length by the ld. Counsel for the accused persons Sh. H.R. Khan Suhel. During his cross examination PW3 stated that he went to Rajdoot Hotel around 11.00 PM, he purchased the ticket from the small hall and thereafter he went to the another hall on the right side FIR No.391/06 State Vs. Manmohan Kalra & Anrs. 8/29 toward the show, the dance was already going on. PW3 deposed that he does not remember whether the dance was going on new songs or old songs but two girls performed in Gaghra and Choli for about 10 minutes, the girls were coming one by one from the stage, the dance in panties and bras continued for about 1015 minutes, this was also one by one. PW3 stated that he might have stated this fact before the police that some girls were dancing in Gaghra and Cholies and some were in panties and bras. It is stated by PW3 that at the time of police raid 1520 persons were there and the police made enquiries from all of them. PW3 stated that all the girls were there in hall as well as to adjoining the room where the girls sit before their performance and ladies police were bringing them to hall, we all were brought to the outer hall and I did not notice any camera with the police. It is stated by PW3 in his cross examination that when girls were brought in the out of hall they were not in those dresses which they were wearing while performing and at that time they were wearing normal clothes, when police raid was conducted all girls on their own went inside the room/space adjoining to the stage and thereafter ladies police brought them out, the clothes of the girls were not seized by the police in my presence. PW3 further stated that semi nude dances used to be performed there, the stage inside the hotel was about 2025 long and 1520 ft wide and accused (Man Mohan Kalra) present in the Court was moving around the stage. PW3 denied the suggestion that Mr. Babbu Kalra was not there and that he was giving any direction or wrong signals to the dancing girls or that the girls were dancing in proper dresses as the film actresses there in the films and that they were dancing on Indian film songs. PW3 also FIR No.391/06 State Vs. Manmohan Kalra & Anrs. 9/29 denied that he was not there in the hotel and that he was a planted witness.
7. PW4 ASI Jagmohan, was posted as duty officer on 3/4th June 2006 in Police Station Hazrat Nizamuddin and he recorded the present FIR Ex.PW4/A on the basis of the runna Ex.PW4/B.
8. PW5 SI Pushpa is police witness. During her examination in chief PW5 deposed as under: "That on 03.06.2006, I was posted at Anti Robbery Cell, R.K. Puram, Sector 8 as ASI. On that day, P.P. Singh, the then ACP called Inspector Ran Singh, SI Surender Rana, other constables, head constables and myself. He told that I received a secret information regarding the call girls and bar dance at Rajdoot Hotel, Nizamuddin. P.P. Singh, ACP called the outer force to conduct the raid at Rajdoot Hotel. Raiding party consisting of Inspector Ran Singh, SI Surender Rana, P.P. Singh, myself and other outer force and staff. We reached there at about 10.00 PM. Inspector Ran Singh requested to 78 public persons to join the raiding party but two persons namely Dalip and Rajeev were ready to join the raiding party. ACP gave two notes (500X2) to each public person to purchase the ticket for entry in the eldorodo bar restaurant. I do not remember the number of the notes. Thereafter the two public persons purchased the ticket for entry. The ACP also directed them to give hand signal if they found any obscene activity. They went inside the hotel and at about 10.30 PM, one of the persons came out of the hotel and as advice gave hand signal by putting his hand on his head. The raiding party rushed inside the hotel. There we saw that 34 girls were dancing on the stage and they were not property dressed and were wearing short dresses and the FIR No.391/06 State Vs. Manmohan Kalra & Anrs. 10/29 girls were changing according to the items. Manmohan Kalra, the accused is present in the Court today, was also present at there and was giving signals to the girls to dance. He was arrested and accordingly the girls were present there were apprehended and some of the girls were apprehended from the rooms. 13 girls were apprehended and their age in between 1825 years. After apprehending them, their personal search were taken. ACP prepared the memo of handed over 4 note of Rs. 500/ to Rajeev Kumar. ACP seized the two notes of Rs. 500/ each from ticket counter. ACP seized the two notes of Rs. 500/ each from Rajeev Kumar. ACP seized the ticket from Rajeev Kumar. ACP seized the two tickets from Anil and Ramesh Bahl vide seizure memo which is already Ex.PW2/A and Ex.PW3/B. ACP P.P. Singh prepared the rukka and handed over to Inspector Ran Singh for registration of FIR. Inspector Ran Singh handed over the rukka to Ct. Pradeep for ragistraion of FIR and he went to the police station and got registration of FIR and he returned to ARC with original rukka and copy of FIR and the same were handed over to Inspector Ran Singh. Inspector Ran Singh/IO prepared the site plan at the instance of ACP. IO arrested and carried out personal search of the accused persons. The identity of the accused persons is not disputed. The arrest memos of the accused persons except Manmohan Kalra which Ex.PW5/A to Ex.PW5/M which bears my signature at point A. The personal search memos of the accused persons except Manmohan Kalra which are Ex.PW5/1 to Ex.PW5/13. The body inspection memos of the accused persons except Manmohan Kalra are Ex.PW5/14 to Ex.PW5/26 which bears my signature at point A. IO recorded my statement.
FIR No.391/06 State Vs. Manmohan Kalra & Anrs. 11/29 Some leading questions were asked by the Ld. APP for the State from PW5, which were allowed by the court, which are as under: "It is correct that ACP P.P. Singh handed over four notes of Rs. 500/ to Rajeev Kumar vide handed over memos and number of the notes are 5AA267434, 5AG663436, 2AA797785 and 7AA334165 (objected to). It is correct that ACP P.P. Singh seized the two notes of Rs. 500/ each bearing no. 2AA797785 and 7AA334165 from Rajeev Kumar and ACP prepared the pullanad and sealed with the seal of SKR and the same were taken into the possession vide seizure memo. It is correct that Rajeev Kumar handed over two tickets bearing no. 23609 and 23610 to the ACP and ACP prepared the pullanda and sealed with the seal of SKR and the same were taken into the police possession vide seizure memo. It is correct that Kamal Sharma handed over two notes of Rs. 500/ each bearing no. 5AA267434 and 5AG663436 from cash counter of the hotel and ACP prepared the pullanda and sealed with the seal of SKR and the same were taken into police possession vide seizure memo. I can identify the case property if shown to me.
MHC(M) produce the case property in 3 white envelops duly sealed with the seal of SKR. Seal of first envelop is broken and the case property ie. two notes of Rs. 500/ bearing no. 5AA267434 and 5AG663436 are taken out and the same are shown to the witness and witness is correctly identify the same and the same is Ex.P1 and Ex.P2 respectively.
Seal of second envelop is broken and the case property ie. two notes of Rs. 500/ bearing no. 2AA797785 and 7AA334165 are taken out and the same are shown to the witness and witness is correctly identify the same and FIR No.391/06 State Vs. Manmohan Kalra & Anrs. 12/29 the same is Ex.P3 and Ex.P4 respectively.
Seal of third envelop is broken and the case property ie. two tickets bearing no. 23609 and 23610 are taken out and the same are shown to the witness and witness is correctly identify the same and the same is Ex.P5 and Ex.P6 respectively (objected to the leading questions)"
During her cross examination by Sh. H.R. Khan Suhail, Advocate, Counsel for the accused persons, PW5 deposed as under: "That on 03.06.2006, ACP P.P. Singh called a meeting in ARC Office at R.K. Puram, Sector8. We were approximately 78 police officials and in that meeting it was decided that we have to raid at Rajdoot Hotel. I was only ASI from ARC office. However, there were other lady police ASI and Constables consisting of raiding party. It is correct that ACP very specifically briefed us the base and the ground on the basis of which he has come to the conclusion to go for the raid and the same are mentioned in my statement from para A to A is Ex.PW5/DA. According of ACP, the verification of the above were based on the information he had been receiving from time to time. I did not notice any informer who also came to inform to the ACP that the half nude dance is going on. I never heard anything like this and I never noticed myself. According to my calculation, raiding party was consisting of 2025 persons. I can identify Rajeev and Dalip Kumar who agreed to join the raiding party and were sent inside the hotel. Several other persons were asked to join the raiding party but I cannot give the name or identification of any of them. I cannot give the name of the photographer who was accompanied. The photographer was from the police department. Again said, I do not remember FIR No.391/06 State Vs. Manmohan Kalra & Anrs. 13/29 the name of the photographer. The photographer was carrying a movie camera but I cannot give the size. The photographer who was accompanied our team also accompanied the raiding team inside the hotel. None of the witness while examining was photographed in the video. There was no separate light but light was already fixed in the camera. Till the raid continued, the camera was on. I do not remember as to whether camera man accompanied me and other female police force entered into the room. Witness Rajeev gave the hand signal at about 11.30 PM and immediately thereafter we entered into the hotel. As soon as we the entered in the hotel the reception is on the right side. While passing the lobby, the raiding party immediately rushed inside the eldorado restaurant where the dance was going on. The moment raiding party was entered, the dance was stopped. 34 girls were apprehended from restaurant and the rest of the girls from the room where they were getting ready for the performance and few girls were apprehended from the stairs who were coming to the perform. We saw the dance for few minutes. The stage was on the right corner of the hall. Approximately the stage 510 ft width and the instruments were there on the stage and the songs were going on. It was dark on the stage side. Again said, not too dark there. 23 girls were dancing on the stage at a time. I apprehended the girls while they were performing. The girls were wearing the short dresses such as bikni and bras and they were apprehended in the very same bras and biknis. I alongwith other female police officials took them to the room where they changed their clothes and then we brought them down stairs. The girls were apprehended by our team, but I do not remember as to what clothes girls were FIR No.391/06 State Vs. Manmohan Kalra & Anrs. 14/29 wearing who were apprehended from the staircase. However, the girls who were in the room apprehended by us were not wearing the exposing short dresses. The above said short dresses were not taken into possession, however, photographs were definitely taken which must be with the photographer or the investigation officer. I never saw any of the photographs which were taken there or the video film from my own eyes during the enquiry of this case where I met the IO and the ACP for many times as I was posted there. When ACP took the meeting for organizing the raid a special DD was written by the IO at that time. The photographer who was handling the video camera was with us from the very beginning when we came for the purpose of raid in 34 vehicles. My statement was recorded later on, on 04.06.2006 in the Robbery Cell. This was my first raid of this kind. I became the party to other raids but not of this kind. The raid at the Rajdoot Hotel continued upto 2.30 AM. No witness was examined in my presence in the hotel and nobody's statement was recorded in my presence in the hotel. There is a hardly any parking inside the hotel, however, the cars are parked outside the hotel at the adjacent road of the hotel. Again said, inside the hotel, there is parking of 34 cars only which include the passage from entry to exit gate. Again said, 1012 cars, there is a car parking inside the hotel. It is incorrect to suggest that I am making a false statement and there is no parking of 1012 cars. Again said, a lot of cars may be upto 50100 cars can be parked outside the hotel on the main road. I did not hear that Sh. Babbu Kalra and Kamal Sharma, receptionists were loudly saying and showing the licence which was valid till 31.12.2006 for for the permission of dancing on the Indian film songs."
FIR No.391/06 State Vs. Manmohan Kalra & Anrs. 15/29 PW5 denied the suggestion that the girls who were performing and dancing were wearing reasonably covered clothes or that the dresses which the girls wearing were neither short nor exposing body and that they were lehanga choli that is why you have not taking the clothes into the possession. Vol. Short clothes were worn by the girls and it was not possible to remove them for seizure purposes. PW5 further denied that at the time of raiding party entered the hall, one girl namely Pooja was performing on the Indian song "Mujhe Naulakha Manga De Re" and prior to that a Pakija song was going on and they were fully covered with Lehanga and chunni and they were taken from the stage. PW5 admitted that she does not remember the number of the Rs 500/ note and the number of the tickets and that on the basis of leading questions and after reading the number I made the statement, in chief in the Court. PW5 also denied that no indecent, vulgar or obscene dance was being performed there.
9. Despite several opportunities granted to the prosecution no other witness was examined by the prosecution hence the prosecution was closed.
10. The statement of the accused Manmohan Kalra under S.313 Cr.P.C. was recorded on 16.07.2013 wherein he stated that he has been falsely implicated in this case. He further stated that he had proper license to run the said restaurant. The police used to demand from him a monthly payment of Rs.5 lacs which was declined by him. The police had conducted a false raid to falsely implicate him.
11. The statements of the other accused persons were also recorded u/s 313 Cr.P.C. wherein it has been stated that they have been falsely implicated in the FIR No.391/06 State Vs. Manmohan Kalra & Anrs. 16/29 case.
12. As per the statement u/s 313 Cr.P.C. :
(i) Accused Ms. Pooja was lifted from the dance floor when she was dancing all alone in proper attire with Lehga in view of the full house and no one had ever made any complaint inrespect of any obscenity in my dance.
(ii) Accused Ms. Isha she was having her dinner ,all of a sudden the door was opened with a big bang due to which all of them got frightened and saw people with camera shooting in the room and all of them were thereafter picked up and implicated in this case.
(iii) Accused Ms. Kiran Gupta claimed she was innocent.
(iv) Accused Renu Saxena was working there as a makeup artist and had nothing to do with any dance performance as alleged.
(v) Accused Rekha was having dinner with other colleagues in the ladies common room when the door was opened with a big bang and the Media entered inside the room alongwith police and caught all of present there without citing any reason for doing so.
(vi) Accused Tabbasum Siddiqui was having dinner with other colleagues in the ladies common room when the door was opened with a big bang and the Media entered inside the room alongwith police and caught all of them present there without citing any reason for doing so.
(vii) Accused Karina was having her dinner with other colleagues in the ladies common room when the door was opened with a big bang and the Media entered inside the room alongwith police and caught all of us present there without citing any reason for doing so.
FIR No.391/06 State Vs. Manmohan Kalra & Anrs. 17/29
(viii) Accused Ms. Lilli Dass was having her dinner when the door was opened with a big bang and the Media entered inside the room alongwith police and caught all of us present there without citing any reason for doing so.
(ix) Accused Ms. Maya Rawat was having her dinner when the door was opened with a big bang and the Media entered inside the room alongwith police and caught all of us present there without citing any reason for doing so.
(x) Accused Ms. Nancy was having her dinner when the door was opened with a big bang and the Media entered inside the room alongwith police and caught all of us present there without citing any reason for doing so.
(ix) Accused Krishna was having her dinner when the door was opened with a big bang and the Media entered inside the room alongwith police and caught all of us present there without citing any reason for doing so.
13. All the accused persons opted not to lead the defence evidence.
14. I have heard ld. APP for the state and counsel for the accused persons and perused the record carefully.
15. Whether the case under S.294 IPC is made out (NO) The offence under S.294 IPC falls under the CHAPTER XIV visàvis the category relating to the public decency and morals.
S.294 IPC Obscene acts and songs -- Whoever, to the annoyance of others--
FIR No.391/06 State Vs. Manmohan Kalra & Anrs. 18/29
(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.
S.109 IPC . Punishment of abetment if the act abetted is committed in consequence, and where no express provision is made for its punishment
-- Whoever abets any offence shall, if the act abetted is committed in consequence of the abetment, and no express provision is made by this Code for the punishment of such abetment, be punished with the punishment provided for the offence.
Explanation -- An act or offence is said to be committed in consequence of abetment, when it is committed in consequence of the instigation, or in pursuance of the conspiracy, or with the aid which constitutes the abetment.
S.34 IPC :: Acts done by several persons in furtherance of common intention.--When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.] 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 FIR No.391/06 State Vs. Manmohan Kalra & Anrs. 19/29
(iii) the same must cause annoyance to others.
16. Section 294 IPC deals with the prevention of an obscene act being performed in public to the annoyance of the public. In this respect, the submissions made by the petitioner was that to make out a case under the aforesaid section the main ingredients of the section need to be complied with which includes the impugned act to be performed in a public place; the said act to be obscene and lastly, to cause annoyance to others.
17. Obscenity is treating with sex in a manner appealing to the carnal side of human nature or having that tendency. Such a treating with sex is offensive to modesty and decency. Test of strict liability. Knowledge is not a part of the guilty act. The offender's knowledge of the obscenity of the impugned matter is not required under the law and it is a case of strict liability. It is also clear and apparent that the criminal offence of obscenity is predicated upon the legal term of art and that the legal test of obscenity cannot be equated with the dictionary definition of obscenity which takes within its fold anything which is offensive, indecent, foul, vulgar, repulsive etc. In legal terms of obscenity, the matter which offends, repels or disgusts does not thereby tend to deprave or corrupt a person exposed to such matter and cannot therefore, without more, be said to be obscene. To fall within the scope of obscene under section 294 IPC, the ingredients of the impugned matter must lie at the extreme end of the spectrum of the offensive matter. The legal test of obscenity is satisfied only when the impugned matter can be said to appeal to a unhealthy, inordinate person having perverted interest in sexual matters or having a tendency to morally corrupt and debase persons likely to come in contact with the FIR No.391/06 State Vs. Manmohan Kalra & Anrs. 20/29 impugned art. It must also be remembered that a piece of art may be vulgar but not obscene. (CRL. REV.114/2007 dt. 08052008 MAQBOOL FIDA HUSAIN v. RAJ KUMAR PANDEY)
18. 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.
19. The arguments of the defence is two pronged:
(1) Firstly that the dancers were not exposing
indecently / lasciviously;
(2) Secondly (assuming though not admitting) even if the dance was in
decent the same was not to the annoyance of anyone.
20. Whether the prosecution has been able to prove that the dancers were indecently dressed (NO):
The police had not seized the dresses wore by the dancers. The PW5 S.I. Pushpa Yadav has categorically stated that the short dresses of the dancers were not taken in possession / custody of the police. As per the testimony of PW5 the police photographer was them all though the raid. However, the said photos or the movie has not been exhibited as evidence. Therefore it has not been proved beyond doubt that the dancers were scantly dressed.
21. Secondly (assuming though not admitting) even if the dance was in FIR No.391/06 State Vs. Manmohan Kalra & Anrs. 21/29 decent the same was not to the annoyance of anyone.
The learned counsel placing reliance on Narendra H. Khurana and Ors. v. The Commisssioner of Police and Anr. 2004Cri. L.J. 3393 stated there is no prima facie case made out under the aforesaid section since there is no disclosure made in the complainants of any immediate, proximate nexus between the alleged annoyance of the complainants and act done in a public place by the petitioner. It was also heldtherein, that to involve Section 294 of I.P.C, the essential ingredient was "annoyance to others" even if the act per se was indecent and obscene.
It is the case of the prosecution that the case was registered on the statement made by one Rajiv FIR (Ex. PW4/A). The police had also seized the tickets vide Ex. PW2/A and Ex.PW3/A. The said tickets were seized vide seizure memo Ex. PW2/A and EX. PW3/D. The accused persons were arrested on the basis of that very FIR. The main informant i.e. Sh. Rajive Kumar Chaudhary has not been examined. The contents of the FIR does not stand proved. In this regard I am reminded of the observations of the Delhi High Court (Hon'ble Justice Mool Chand Garg) in the matter RAM CHANDER Versus STATE (NCT OF DELHI) CRL.APP. 461/2007 04.05.2009 :
"...in absence of the examination of the original complainant the first information report which is a former statement of the first informant does not stand proved. The person who received the report can only prove that such report was submitted before him but he would not be legally FIR No.391/06 State Vs. Manmohan Kalra & Anrs. 22/29 entitled to prove the contents of the documents or the correctness of the statements made in the said report."
The main informant i.e. Sh. Rajive Kumar Chaudhary who has mentioned in the FIR that he was 'annoyed' (due to obscenity) has not been examined.
The ACP gave two notes (500X2) to Dalip and Rajeev to purchase the ticket for entry in the Eldorodo bar restaurant who purchased the ticket for entry bearing No. 23609 and 23610. The testimony of PW2 (Ramesh Bahl) reveals that he purchased the ticket bearing No.23631 (Ex. PW2/A). The testimony of PW3 (Sh. Anil Kumar) reveals that he purchased the ticket bearing No. 23634 (PW3/A). That goes to say that two persons Dalip and Rajeev (not examined by the prosecution) had gone at the instance of police and the other two persons namely Sh. Anil Kumar and Sh. Ramesh Bahl had gone on their own. The Exhibits Ex. PW2/A and Ex. PW3/A pertain to the tickets purchased by the persons who had not gone at the instance of the police.
The witnesses PW2 & PW3 had gone on their own. The question that now arises is "Who was annoyed ?". The testimony of PW2 i.e. Sh. Ramesh Bahl does not inspire much confidence as he could not explain as to how he expected 'KATHAK' performance at the Rajdoot Hotel. He also did not produce any advertisement cutting etc. which could have indicated that there was a 'KATHAK' performance at the Rajdoot Hotel. The said witness PW2 was crossexamined in detail by the defence where it was admitted by him that FIR No.391/06 State Vs. Manmohan Kalra & Anrs. 23/29 he had not formally complained about the dance. According to the defence, there was no element of 'annoyance' on part of PW2. Apart from that there also appears inconsistency of his statement u/s 161 Cr.P.C. and the statement given in the court.
The testimony of PW3 Sh. Anil Kumar also has some discrepancies. He testified that there was no orchestra party / musician on the stage whereas PW5 has stated that the the instruments were there on the stage and the songs were going on. PW3 also admitted that he used to visit Kamal Hotel and Anand Parbat to watch /view / see nude dances. He had also admitted that he had gone to see the dance program with a premind condition for the purpose of entertainment. By putting such questions to the said witness the defence wanted to establish that such a person cannot be termed as 'annoyed'.
My deliberations would be incomplete without discussing a few case laws, Narendar H. Khurana case being prominent amongst them. In Narendra H. Khurana and Ors. v. The Commisssioner of Police and Anr. (2004Cri. L.J. 3393) the petitioners were running restaurant called "Blue Nile Restaurant" at Colaba, Mumbai. The raid was arranged on the restaurant in the night of 771999 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 heldtherein 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 FIR No.391/06 State Vs. Manmohan Kalra & Anrs. 24/29 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. 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.
In the case of State of Maharashtra v. Miss. Joyce reported in I.L.R. (1973) Bom. 1299, the learned Single Judge observed that, when an adult person pays and goes to attend dance/music 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.
Another case law that can be quoted is the unreported judgment of Justice Rege in Criminal Appeal No. 1541 of 1971 decided on 2061973. Justice Rege wherein it has been observed :
"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 FIR No.391/06 State Vs. Manmohan Kalra & Anrs. 25/29 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 uptill 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.
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 FIR No.391/06 State Vs. Manmohan Kalra & Anrs. 26/29 cannot rewrite, recast or reframe 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 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.
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 FIR No.391/06 State Vs. Manmohan Kalra & Anrs. 27/29 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, 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.
Therefore, an 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.
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.
22. In view of the discrepancies of the prosecution and also in view of the FIR No.391/06 State Vs. Manmohan Kalra & Anrs. 28/29 case laws cited I am of the opinion that the prosecution has failed to establish the basic ingredients of the allegations. Accordingly all the accusedpersons (who have faced the trial) namely accused Nos: (1) Manmohan Kalra @ Babbu S/o Sh. Kishan Lal Kalra is acquitted for the offence u/s 294 & 109/34 IPC and accused nos: (2) Isha D/o Kabir, (3) Rekha W/o Robin, (4) Maya Rawat D/o Sh. S.K. Rawat, (5) Karina D/o Kishan Lal, (6) Kiran Gupta D/o Sh. Chote Lal Gupta, (8) Nancy D/o Ishlam, (9) Tabbasum Sidiki D/o Gulam Md. Sidiki, (10) Pooja D/o Rambir, (11) Krishna W/o Kapil Dev Gilani, (12) Lily Das D/o P.K. Das & accused No: (13) Renu Saxena W/o Sharat Saxena are acquitted for the offence u/s 294/34 IPC.
23. However, regarding accused no:7 Maya Singh & accused No:14 Anjali who have been declared Proclaimed Offender vide order dated 13032014, the file shall be again called as and when they are apprehended.
24. At the request of ld. Counsel for the acquitted accused persons the existing bail bonds and surety bonds of the said accused persons are accepted as per the compliance of Section 437(A) of Cr.P.C. The file is consigned to record room.
ANNOUNCED IN THE OPEN COURT ( VEENA RANI) TODAY ON 31052014 CMM/SE/SAKET COURT/ND. FIR No.391/06 State Vs. Manmohan Kalra & Anrs. 29/29