Bombay High Court
Mukteshwar S/O. Sidram Deshmane vs The State Of Maharashtra And Anr on 4 October, 2017
Bench: S.S. Shinde
cra4033.17
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO.4033 OF 2017
Mukteshwar s/o Sidram Deshmane,
Age-38 years, Occu:Business,
R/o-Patil Galli, Ausa,
Tq-Ausa, Dist-Latur.
...APPLICANT
VERSUS
1) The State of Maharashtra,
Through Police Station Officer,
Ausa Police Station,
Tq-Ausa, Dist-Latur,
2) Vikas s/o Ahilappa Jadhav,
Age-51 years, Occu:Service,
R/o-Ausa Police Station,
Tq-Ausa, Dist-Latur.
...RESPONDENTS
...
Mr.P.P. More Advocate for Applicant.
Ms.P.V. Diggikar, A.P.P. for Respondent No.1.
None present for Respondent No.2.
...
CORAM: S.S. SHINDE AND
MANGESH S. PATIL, JJ.
DATE : 4TH OCTOBER, 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.264
of 2016 dated 13th October, 2016, registered with
Ausa Police Station, Dist-Latur for the offence
punishable under Section 188 of the Indian Penal
Code, as well as the consequential Charge Sheet
bearing No.62 of 2016, pending before J.M.F.C.,
Ausa.
3. Learned counsel for the Applicant submits
that none of the ingredients of the alleged
offences get attracted even upon reading the
allegations in the First Information Report (for
short "FIR") in its entirety. It is submitted that
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the offence is registered by the police officer
who is not the competent authority to register the
offence. The Applicant is a manager of Shivmudra
Club. It is submitted that Shivmudra 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 and pursuant to the said
FIR, Charge-sheet bearing No.62 of 2016 is filed
before the learned Judicial Magistrate, First
Class, Ausa, and therefore the Application
deserves to be dismissed.
5. We have heard learned counsel appearing
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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 Shivmudra Club at
about 19.10 hours on 13th October, 2016. The
Applicant is a manager of said Shivmudra Club. The
informant along with his colleagues, entered in
the underground hall of the said Club and found
that eight persons were playing cards by seating
together in circle. The Sub Divisional Police
Officer, Ausa, on perusal of the license issued in
favour of Shivmudra Club by the District Collector
and District Magistrate, noticed that permission
to run the said club was granted by the District
Magistrate on 9th August, 2016, 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 eight
persons were playing cards in the underground hall
of the club and therefore the Applicant has
violated the conditions stipulated in the license.
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Hence, the Applicant has committed an offence
punishable 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 get 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)
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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 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
Applicant that more than four persons were playing
the cards, 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 Section 188 of the
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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
Application succeeds. The the First Information
Report bearing Crime No.264 of 2016 dated 13th
October, 2016, registered with Ausa Police
Station, Dist-Latur for the offence punishable
under Section 188 of the Indian Penal Code, as
well as consequential Charge Sheet bearing No.62
of 2016, pending before the Judicial Magistrate,
First Class, Ausa, are quashed and set aside.
9. Rule made absolute in above terms. The
Application stands disposed of, accordingly.
[MANGESH S. PATIL, J.] [S.S. SHINDE, J.]
asb/OCT17
