Bombay High Court
Balaji Arjunrao Zunjare vs The State Of Maharashtra And Anr on 12 July, 2017
Bench: S.S. Shinde
cra2104.17
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO.2104 OF 2017
Balaji Arjunrao Zunjare,
Age-34 years, Occu:Business,
R/o-Subhas Nagar, Barshi Road,
Latur, Tq. & Dist-Latur.
...APPLICANT
VERSUS
1) The State of Maharashtra,
Through Police Station Officer,
MIDC Police Station,
Latur, Tq. & Dist-Latur,
2) Dhanaji Rama Yelke,
Age-48 years, Occu:Service,
R/o-Sub-Divisional Police Office,
Ausa, Tq-Ausa, Dist-Latur.
...RESPONDENTS
...
Mr.P.P. More Advocate for Applicant.
Mr.M.M. Nerlikar, A.P.P. for Respondent No.1.
None present for Respondent No.2.
...
CORAM: S.S. SHINDE AND
S.M. GAVHANE, JJ.
DATE : 12TH JULY, 2017.
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JUDGMENT [PER S.S. SHINDE, J.]:
1. Rule. Rule made returnable forthwith and
heard finally with the consent of the learned
counsel appearing for the parties.
2. This Application is filed by the
Applicant praying therein to quash and set aside
the First Information Report bearing Crime No.387
of 2016 dated 18th November, 2016, registered with
MIDC Police Station, Latur for the offence
punishable under Section 188 of the Indian Penal
Code.
3. Learned counsel for the Applicant 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") in its entirety. It is submitted that
the offence is registered by the police officer
who is not the competent authority to register the
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offence. The Applicant is a manager of Prerna
Club. It is submitted that Prerna 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 Applicant is falsely implicated
in the alleged offence with ulterior motive.
Therefore, he submits that the FIR may be quashed.
4. On the other hand, learned A.P.P.
appearing for the State invites our attention to
the contents of the FIR and submits that alleged
offences are disclosed, which need further
investigation.
5. We have heard learned counsel appearing
for the Applicant and learned A.P.P. appearing for
the State. Upon careful perusal of the allegations
in the FIR, it appears that the informant along
with other police staff, went to Prerna Club at
about 18.30 hours. The Applicant is a manager of
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said Prerna Club. The informant along with his
colleagues, entered in the conference hall and
found that 5 to 6 persons were playing cards on
the table. In another room i.e. Room No.106, six
persons each were playing cards on two tables. The
Police Sub Divisional Officer, Ausa, on perusal of
the license issued in favour of Prerna Club by the
District Collector and District Magistrate,
noticed that permission to run the said club was
granted by the District Magistrate on 11th July,
2012, 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 Applicant has violated the
conditions stipulated in the license. Hence, the
Applicant has committed an offence punishable
under Section 188 of the I.P. Code.
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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
(b) to take certain order with a certain
property in his possession or under his
management, has disobeyed such
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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 allegation attributed to the
Applicant that more than four persons were playing
the cards on each table, is 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 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
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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
Application succeeds. The First Information Report
bearing Crime No.387 of 2016 dated 18th November,
2016 registered against the Applicant with MIDC
police station, Latur for the offence punishable
under Section 188 of the I.P. Code is quashed and
set aside. Rule made absolute in above terms. The
Application stands disposed of, accordingly.
[S.M. GAVHANE, J.] [S.S. SHINDE, J.]
asb/JUL17
