{1} Cri. Application No.5170/2010 drp IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.5170 OF 2010 Suresh Baburao Manorkar APPLICANT Age-56 years, Occ-Service R/o Vedant Nagar Station Road, Aurangabad VERSUS 1. The State of Maharashtra RESPONDENTS 2. Narayan Laxman Naikare Age-50 years, Occ-Service R/o State Excise Department, A-Div Ahmednagar ....... Mr.S.G.Ladda, Advocate for the applicant Mrs.Y.M.Kshirsagar, APP for respondent State ....... [CORAM : A.V.POTDAR, J.] DATE: 11 th October 2011 ORAL JUDGMENT: 1. Rule. Rule made returnable forthwith. Heard finally by consent at the stage of admission. {2} Cri. Application No.5170/2010 2. By the present application u/s 482 of the Criminal Procedure Code, the petitioner has prayed to quash the FIR in Crime No.241/2008 registered with Parner police station so also to quash and set aside the proceedings of RTC No.198/2010 pending before JMFC, Parner. 3. Heard learned counsel for the applicant followed by learned APP for respondent State. Perused the entire record, including the charge sheet. 4. The facts, which are necessary for the decision of this application may briefly be stated thus- It appears that one Waghmare had moved an application seeking permission to start a permit room, with the Superintendent of State Excise, Ahmednagar on 09.06.2004. The said application was moved to start a new Lodge / Bar. It also appears that the application was processed by the office of the State Excise, Ahmednagar and the applicant, who was working as {3} Cri. Application No.5170/2010 Sub Inspector, with the State Excise, Ahmednagar, was directed to visit the spot and to submit a report. Accordingly, the applicant had visited the spot and submitted a report. As per Rule 45 (3) (1C) of the Bombay Foreign Liquor Rules, the proposed site must be beyond the distance of 75 meters from the Educational or Religious institutions or if it is near the Highway, then it must be beyond 75 meters from the center of the Highway. It was submitted in the report dated 26.08.2004, by the applicant, that the proposed site is at the distance of 177 feet from one side and from the border of the State Highway it is 165 feet away. As per the said Rule, the distance must be beyond 75 meters, which comes to 225 feet. It appears that after submission of the report by the applicant and after completion of the requisite formalities, the documents submitted by said Waghmare were placed before the District Licensing Committee, which comprises of Superintendent of Police, Chief Executive Officer, Zilla Parishad, Superintendent-State Excise and the District Collector. It appears that the said committee, though was comprised of four members, yet the proposal of said Waghmare was approved by only the Superintendent, State Excise on 05.05.2005. It further appears {4} Cri. Application No.5170/2010 that after the span of 4 years, Inspector, State Excise, lodged a report with Parner police station, pursuant to which an offence at Crime No.241/2008, u/s 420, 468, 471 r/w 34 of the Indian Penal Code came to be registered against the said Waghmare and the applicant. It also appears that on completion of the investigation, charge sheet was filed against the accused before the JMFC, Parner. Thereafter process was issued by way of summons to appear before the Court. Hence, the applicant is before this Court praying to quash and set aside the FIR so also the proceedings of RTC No.198/2010. 5. Learned counsel for the applicant drew my attention towards rule 45 (1) (3) of the Bombay Foreign Liquor Rules 1953, which reads thus- “45 (1C) No licence under sub-rule (1B) shall be granted in respect of any hotel or restaurant which is situated within a distance of seventy five meters from any educational or religious institution or from any bus stand, station or deport of the Maharashtra State Road Transport Corporation or from the boundary of any National or State High Way: Provided that nothing contained in this sub-rule shall {5} Cri. Application No.5170/2010 apply in respect of an existing hotel or restaurant for which a valid licence in Form FL-III is held by the Manager or Proprietor thereof immediately before coming into force of the Bombay Foreign Liquor (Amendment) Rules 1990. (iii) The distance referred to in clause (a) of this sub-rule shall be measured from the mid-point of the entrance of the hotel or restaurant along with the nearest path by which the pedestrian ordinarily reaches.” 6. Perusal of the complaint indicates that the applicant has submitted false report enabling said Waghmare to prepare false documents and to obtain license to run permit room. It is also alleged that vide his report dated 06.08.2004, it is stated that the distance between the said site and the State Highway is 177 feet, when in fact the distance if 175 feet. Thus, it is alleged that the applicant, by joining hands with said Waghmare and with common intention with him, the applicant has helped accused No. 1 to obtain said license. The report submitted by the applicant has been annexed along with the charge sheet. The said report indicates that the distance between the proposed site and the State Highway is 177 feet. Certainly, it is less than 225 feet, which is mandatory distance as per rules. {6} Cri. Application No.5170/2010 7. Perusal of the record shows that the distance as calculated by the applicant is more than just 2 feet, which is a marginal difference. However, certainly it would not keep the proposed site beyond the mandatory distance of 225 feet or 75 meters. Thus, it is amply clear that it cannot be said that the applicant has prepared false documents or forged any document in respect of measurement of distance between the two sites. Thus, it is clear that by submitting his report, the applicant has not kept the site of the accused No.1 beyond the mandatory distance of 225 feet to enable accused No.1 to obtain license. Secondly, the report, prepared by the applicant was submitted to his superior. Thus, it would not come under the ambit of section 468 or 471 of the Indian Penal Code, which defines use of forged documents in the public records. Thus, on overall appreciation of the papers of investigation it cannot be said that the applicant has prepared forged document, which is used to create public record to enable accused No.1 to obtain license to run permit room. Though the entire evidence collected during the investigation is taken as it is, certainly it would not satisfy the ingredients of the offence punishable u/s 420, 468 and 471 r/w 34 of the Indian Penal Code. {7} Cri. Application No.5170/2010 Thus, case is made out to quash the proceedings, quo applicant. 8. Consequently, the application succeeds. Rule is made absolute in terms of prayer clause “A” and “B” [A.V.POTDAR, J.] drp/B11/criapln5170-10