14. cr wp 2771­10.doc 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 14. cr wp 2771­10.doc 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 14. cr wp 2771­10.doc 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 14. cr wp 2771­10.doc 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 14. cr wp 2771­10.doc 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