Bombay High Court
Ganesh S/O. Dagadu Hole vs The State Of Maharashtra And Anr on 11 July, 2017
Bench: S.S. Shinde
cwp678.17
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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
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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
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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
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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
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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
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(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
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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
