cwp678.17
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO.678 OF 2017
Ganesh s/o Dagadu Hole,
Age-35 years, Occu:Business,
R/o-Ambejogai Road, Latur,
Tq. & Dist-Latur.
...PETITIONER
VERSUS
1) The State of Maharashtra,
2) Surendra s/o Yavavrao Dhumale,
Age-35 years, Occu:Service,
R/o-Ausa Police Station,
Tq-Ausa, Dist-Latur.
...RESPONDENTS
...
Mr.T.M. Venjane Advocate for Petitioner.
Mr.K.D. Munde, A.P.P. for Respondent Nos.
1 and 2.
...
CORAM: S.S. SHINDE AND
S.M. GAVHANE, JJ.
DATE : 11TH JULY, 2017.
JUDGMENT [PER S.S. SHINDE, J.]:
1. Rule. Rule made returnable forthwith and ::: Uploaded on - 21/07/2017 ::: Downloaded on - 28/08/2017 09:56:30 ::: cwp678.17 2 heard finally with the consent of the learned counsel appearing for the parties.
2. This Petition is filed by the Petitioner praying therein to quash and set aside the First Information Report bearing C.R. No.398 of 2016, registered with Shivaji Nagar Police Station, Latur, Dist-Latur for the offence punishable under Section 188 of the Indian Penal Code (for short "I.P. Code"). The Petitioner has further prayed to quash and set aside the Charge-sheet bearing No.157 of 2016 for offence punishable under Section 188 of the I.P. Code.
3. Learned counsel appearing for the Petitioner submits that none of the ingredients of the alleged offences gets attracted even upon reading the allegations in the First Information Report (for short "FIR") and consequent charge- sheet in its entirety. It is submitted that the Petitioner is a manager of Rajshree Club. It is ::: Uploaded on - 21/07/2017 ::: Downloaded on - 28/08/2017 09:56:30 ::: cwp678.17 3 submitted that Rajshree Club is being run as per the rules and regulations. There is no violation of any condition as stipulated in the license, there is no disturbance of the peace in the society. The Petitioner is falsely implicated in the alleged offence with ulterior motive. Therefore, he submits that the FIR and the consequent charge-sheet may be quashed.
4. On the other hand, learned A.P.P. appearing for the State relying upon the allegations in the F.I.R. and also the material collected by the Investigating Officer, which is filed along with the charge-sheet, submits that the prosecution agency has collected enough evidence/ material, on the basis of which trial can proceed.
5. We have heard learned counsel appearing for the Petitioner and learned A.P.P. appearing for the State. Upon careful perusal of the ::: Uploaded on - 21/07/2017 ::: Downloaded on - 28/08/2017 09:56:30 ::: cwp678.17 4 allegations in the FIR, it appears that the informant along with other police staff, went to Rajshree Club at about 18.00 hours. The Petitioner is a manager of said Rajshree Club. The informant along with his colleagues, entered in the said club and found that 7 to 9 persons were playing cards on the table. The Police Officer of police station Shivajinagar, Latur, on perusal of the license issued in favour of Rajshree Club by the Upper District Magistrate, Latur on 28th April, 2015, noticed that permission to run the said club was granted by the Upper District Magistrate, and as per the conditions stipulated in license, only four persons were permitted to sit across one table for playing cards. However, it was found that on each table more than four persons were playing cards. Some of the persons sitting in the club were not possessing membership cards and therefore the Petitioner has violated the conditions stipulated in the license. Hence, the Petitioner has committed an offence punishable ::: Uploaded on - 21/07/2017 ::: Downloaded on - 28/08/2017 09:56:30 ::: cwp678.17 5 under Section 188 of the I.P. Code.
6. If the allegations in the FIR are examined in the light of the provisions of Section 188 of the I.P. Code, none of the ingredients of the said Section gets attracted. To attract the ingredients of Section 188 of I.P. Code upon reading the allegations in the FIR, following four ingredients should get attracted and thereafter only it can be said that an alleged offences have been disclosed under the said Section of the I.P. Code:
1) There must be order promulgated by a public servant,
2) That, the public servant must have been lawfully empowered to promulgate such order,
3) That, a person having a knowledge of such order and directed by such order
(a) to abstain from a certain act, or ::: Uploaded on - 21/07/2017 ::: Downloaded on - 28/08/2017 09:56:30 ::: cwp678.17 6
(b) to take certain order with a certain property in his possession or under his management, has disobeyed such direction,
4) That such disobedience causes or tends to cause (i) obstruction, annoyance or injury, or risk of it, to any person lawfully employed or (ii) danger of human life, health or safety,
(iii) a riot or affray.
7. In the first place, in the present case there is no breach of order promulgated by a public servant. Secondly, since such order was not promulgated by any public servant, the question of disobedience of such order would not arise. Even otherwise also the allegations attributed to the Petitioner that more than four persons were playing the cards on each table, are taken as it is, it has not caused harm to anybody. In that view of the matter, upon reading the allegations in the FIR in its entirety, an ingredients of ::: Uploaded on - 21/07/2017 ::: Downloaded on - 28/08/2017 09:56:30 ::: cwp678.17 7 Section 188 of the I.P. Code are not attracted in the facts of the present case. At the most, it can be said that there was breach of the conditions stipulated in the license, and in that respect the authority may initiate appropriate action as is permissible in law.
8. In that view of the matter, the Petition succeeds. The Writ Petition is allowed in terms of Prayer Clause "B)" and "C)" to the Petition. Rule made absolute on above terms. The Writ Petition stands disposed of, accordingly. [S.M. GAVHANE, J.] [S.S. SHINDE, J.] asb/JUL17 ::: Uploaded on - 21/07/2017 ::: Downloaded on - 28/08/2017 09:56:30 :::