1 wp 3316-09 jpc/- IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 3316 OF 2009 Madhukar Manohar Prabhakar .. Petitioner Versus The State of Maharashtra and others .. Respondents Mr. H. E. Palwe for the Petitioner Mr. Ajay Varma for Respondent Nos. 2 and 3 Mr. S.A. Shaikh, APP for Respondent No.1-State. CORAM : N. D. DESHPANDE, J. DATE : 19th January, 2011 P. C. 1. Heard Mr. Palwe, learned counsel for the Petitioner, Mr. Shaikh, APP for the Respondent-State and Mr. Varma for Respondent Nos. 2 and 3. 2. This Writ Petition is fixed for admission and is heard finally at the stage of admission by consent of both the parties. The learned counsel for the petitioner also urged to treat this petition as an application under section 482 of the Criminal Procedure Code, 1973 for invoking the inherent jurisdiction of this Court, for quashing the FIR, registered under Section 160 of the Indian Penal Code. 2 wp 3316-09 3. Perused the F.I.R. (CR No. 322/2009). It is dated 9.11.2009 registered with Khadki Police Station (Pune) on a complaint of Police Constable 2550- Shri Kamble of Khadki Police station. The alleged incident took place near M.M. Restaurant, Aundh Road, Pune at about 15.15 hours on 9.11.2009 and station diary to that effect is found entry No. 23 of 2009 at 19.15 hours. The said FIR is registered against the three persons viz. the petitioner- Madhukar Manohar Prabhakar and his two sons Vaibhav and Hemant, residing at 49, Aundh Road, Snehal Memories Apartment, Range Hills, Khadki, Pune. They are running restaurant called M.M. Restaurant. It is alleged that these three members of a same family were found fighting near M.M.Rasturant, allegedly belong to accused, at Aundh Road, Pune. They were abusing and assaulting each other. There was commotion during the fight thereby crowd gathered which resulted in disturbing the peace and tranquillity of the area. 4. Present petition is filed on 4.12.2010. Petitioner- Madhukar Manohar Prabhakar is accused No. 3 and his two sons who were accused Nos. 1 and 2 are shown as respondents in this petition. The main contention of the petitioner is that it is an abuse of process of the court and the Khadki Police station is bearing a grudge against the petitioner and they have been falsely implicated in the case of affray punishable under Section 160 of the Indian 3 wp 3316-09 Penal Code. It is also contended that prior to the said incident, the accused Vaibhav in the family was made accused under the Essential Commodities Act and the said FIR came to be stayed by this Court by an order dated 22 nd April, 2009 passed in Criminal Application No. 1142 of 2009. 5. The learned Counsel for the Petitioner relied on the following two authorities: 1. Pushpa & others Vs. Ravi and others reported in 2007 Cri. L.J. 4747 2. C. Subbarayudu Vs. State of A.P. Reporte din 1996 Cri. L.J. 1472 Both the above authorities are on the point of requirement of essential ingredients to be proved prima facie to attract the offence of affray. Three essential ingredients are required to be prima facie proved for the offence of affray defined under section 159 and punishable under Section 160 of the Indian Penal code. It is argued that the offence of affray is a fight i.e. a bilateral act, in which two parties participate and it will not amount to a affray when the party who is assaulted submits to the assault without resistance. Mere causing inconvenience to the public is not sufficient. There must be a definite disturbance of the public peace due to the fight in the public place to make the offence of affray. 4 wp 3316-09 6. According to the petitioner, there is no averment as to the public place as place of offence. It is shown as near M.M. Restaurant, Aundh Road, Pune which belongs to the family of the Petitioner/accused. The learned counsel, however, argued that the F.I.R. as it is to be read if true and is accepted as true, all the three ingredients are required to be satisfied in the light of the authorities cited supra. 7. I have gone through the averments made in the petition, the FIR and also gave my anxious considerations to the submissions advanced. At this stage, it is difficult to find the veracity of the complaint as to be true or false. In order to appreciate the case of the petitioner, relevant sections i.e. Sections 159 and Section 160 of the I.P.C. are reproduced, which reads thus: 159. Affray._ When two or more persons, by fighting in a public place, disturb the public peace, they are said to “commit an affray” 160. Punishment for committing affray._ Whoever commits an affray shall be punished with imprisonment of either discretion for a term which may extend to one month, or with fine which may extend to one hundred rupees, or with both. 8. The FIR is lodged at the instance of Police constable who found these three persons from a family fighting near M.M. 5 wp 3316-09 Restaurant at Aundh Road, Pune in the evening hours. It has also given details about the fight and described that a crowd gathered at the scene and it resulted adversely to the tranquillity and public peace. The powers of High Court in such a case of quashing FIR are no doubt discretionary and the Court should be slow to understand the case of prosecution and that of the defence as well. It would be too early to judge as to whose allegations are true or false. 9. After going through the contents of the FIR, I am satisfied on the point that the three essential ingredients are detailed out in the FIR to attract affray as defined under Section 159 of the IPC. So no interference is called for. 10. Police shall be at liberty to make an enquiry and go on with the investigation in accordance with law. 11. Interim relief granted earlier by this Court vide order dated 12.10.2010 stands vacated. 12. Writ Petition is dismissed with no order as to costs. ( N. D. DESHPANDE, J. )