This judgment quashes orders cancelling a restaurant license where a criminal case involving assault was pending against staff but the licensee was neither accused nor convicted, relying on the principle of innocence until proven guilty.
The orders dated 05th May 2010 and 18th August 2010 cancelling the license are quashed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
RMA
IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO. 2771 OF 2010
Baba Jafar Pathan
.. Petitioner
Vs
The Deputy Commissioner of Police, Solapur
& Ors
.. Respondents
Mr. B.R. Patil i/b Mr. V.R. Agandsurve for the Petitioner
Mr. V.B. Konde-Deshmukh, APP for the State
CORAM : SMT. V.K. TAHILRAMANI, J
DATE : 18th OCTOBER, 2010.
P.C.:
1.Heard learned advocate for the petitioner and learned
APP for the State.
2.Rule. By consent, rule is made returnable forthwith
and the matter is heard finally.
3.The petitioner impugns the order dated 5th May 2010
passed by respondent no. 1 canceling the license of his
eating house. The said order has been confirmed by the Home
Department by order dated 18th August 2010 which order is
also impugned.
1
4.The petitioner is in the business of running a
restaurant in the name and style of 'Hotel Paradise' on
Solapur-Pune Highway. On 2nd April 2010, one Purshottam
Bane and his friend Anna Ghodke were watching orchestra in
the said restaurant. When the Orchestra was playing, Anna
was giving some money on some songs but Purshotaam Bane
obstructed him from giving money. At that time, some of the
waiters and employees in the restaurant abused Bane and
assaulted him by fist and kick blows. During the incident,
one Shivanand assaulted Mr. Bane on his stomach with a
bottle. Hence, FIR came to be lodged at Fouzdar Chavdi
Police Station vide C.R. NO. 58/2010 under Sections 342, 323,
504 read with 34 of IPC.
The said case is pending trial. On account of this
incident, eating house license came to be cancelled.
5.Learned counsel for the petitioner placed reliance on a
decision of this Court in the case of Kana Nagu Mhatre Vs
Asstt. Commissioner of Police, Panvel reported in 1996
CRI.L.J. 3144 in which it has been held that license of a
eating house cannot be cancelled on the basis of charges in
pending criminal cases and the order of cancellation can be
passed only on the basis of proved charges after giving
opportunity of hearing.
2
6.Learned counsel for the petitioner also placed reliance
on a decision of this Court in the case of Dilip J. Bhatia Vs
Commissioner of Police, Thane reported in 2001(1) Bom.C.R.
448 wherein similar view was taken. So also in an unreported
decision of the Division Bench of this Court in Writ Petition
No.1041 of 1985 decided on 16th August 1985 [Kimatram
Harpaldas Aswani Vs The State of Maharashtra and others],
this Court has held that pendency of prosecution cannot be a
ground for refusing to renew a licence to carry on the said
business. Principle underlying the said decision is that
even if a criminal case is pending, that by itself cannot be
a ground so long as the licence holder himself is not
convicted of the said offence. Our criminal jurisprudence
recognizes that until a person is tried and held guilty, he
should be treated as innocent.
7. A license can be revoked under Section 162(2) of the
Bombay Police Act. It would be, therefore, relevant to
reproduce the said provision which reads as under:
"162(2) Any licence or written permission granted under
this Act may at any time be suspended or revoked by the
competent authority, if any of its conditions or
restrictions is infringed or evaded by the person to
whom it has been granted, or if such person is
convicted of any offence in any manner to which such
license or permission relates."
3
On plain reading of the aforesaid provisions, it is
amply clear that licence can be suspended or revoked by the
competent authority if any of the conditions or restrictions
is infringed or evaded by the licence holder himself or he
has been convicted of any offence in any manner to which such
licence or permission relates. In no other situation the said
power of cancellation of licence can be exercised in law.
8.In the present case, it is an admitted fact that the
petitioner is not an accused in the case. It is also an
admitted fact that the petitioner was not even present when
the incident took place. There is no material to show that
the petitioner abetted the offence or that the incident took
place on his say or at his behest. The incident occurred on
the spur of the moment, without any premeditation. Looking
to these facts, it cannot be said that the petitioner was in
any way responsible for the incident taking place. It is not
the case of the respondent that license has been cancelled as
the petitioner has infringed any condition or restriction or
there is any evasion on his part. The plain and simple case
of the respondent is that on account of the C.R. 52/2010
wherein the accused are employees of his restaurant, the
licence is cancelled. As observed earlier, the petitioner
is not an accused in the said case.
4
9. In view of the above facts and the decisions relied on, I am inclined to quash the orders dated 05th May 2010 passed by respondent no. 1 and order dated 18th August 2010 passed by Respondent no. 2.
10. Rule is made absolute in terms of prayer clause (b).
[SMT. V.K. TAHILRAMANI, J.]
5
2 issues framed by the court
Whether a restaurant license can be cancelled for an assault incident committed by its employees without the owner being accused or convicted of any offence.
Whether pendency of a criminal prosecution is a valid ground for revoking a business license under Section 162(2) of the Bombay Police Act.
Colour shows how this judgement treated each authority
Kana Nagu Mhatre Vs Asstt. Commissioner of Police, PanvelReferred¶23
Kana Nagu Mhatre Vs Asstt. Commissioner of Police, Panvel reported in 1996 CRI.L.J. 3144 · Who else cites this
Dilip J. Bhatia Vs Commissioner of Police, ThaneReferred¶26
Dilip J. Bhatia Vs Commissioner of Police, Thane reported in 2001(1) Bom.C.R. 448 · Who else cites this
Kimatram Harpalas Aswani Vs The State of Maharashtra and othersReferred¶26
Writ Petition No.1041 of 1985 decided on 16th August 1985 [Kimatram Harpalas Aswani Vs The State of Maharashtra and others]
1 provisions across 1 enactments
Baba Jafar Pathan
The Deputy Commissioner of Police, Solapur
Ors
V.K. Tahilramani
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court