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2007 DIGILAW 1198 (BOM)

Sanjay s/o. Jiyalal Ragde v. State of Maharashtra

2007-08-24

S.R.DONGAONKAR

body2007
JUDGMENT:- Heard Shri. V. M. Deshpande, learned counsel [appointed] for the applicant and Shri. C. N. Adgokar, A.P.P. for respondent. 2. The applicant has sent an application to the High Court from jail dated 14.3.2006 to challenge the sentence imposed against him by the learned Judicial Magistrate First Class, Brahmapuri in Summary Case No.252/2002, which was confirmed in jail appeal [Criminal Appeal No.13/2006] by the Sessions Judge, Chandrapur, sentencing him to suffer S.I. for 2 years and to pay fine of Rs.1000/-, in default to undergo imprisonment for three months for the offence under section 142 of the Bombay Police Act. 3. The allegations against the applicant were that on 16.4.2002 he was found at about 4.30 p.m. residing at mouja Brahmapuri District: Chandrapur, though he was under the order of externment from the Districts Bhandra, Gadchiroli, Chandrapur. He was prosecuted for the offence under section 142 of the Bombay Police Act and was found guilty in the aforesaid summary case and was sentenced accordingly, as stated above. 4. Jail appeal against the said judgment of conviction was preferred by the applicant, however, the same was dismissed. 5. He challenged that judgment by submitting application to High Court on 23.3.2006 upon which Shri. V. M. Deshpande, Advocate was appointed as counsel for him. 6. Learned counsel for the applicant [appointed] has submitted that the applicant was facing an externment order. He was apprehended on 16.4.2002 at Brahmapuri within the jurisdiction of District of Chandrapur and therefore, he was made liable for the offence punishable under section 142 of the Bombay Police Act. According to him, the observations of the learned J.M.F.C. and also the learned Sessions Judge against him, do not make him liable for maximum sentence of two years for the offence under section 142 of the Bombay Police Act. According to him, as he has been in jail from 26.10.2005, i.e. for an year and 8 months, the sentence imposed should be reduced to already undergone and accordingly this revision application may be allowed. 7. Learned A.P.P. has contended that the applicant is rightly held guilty for the offence under section 142 of the Bombay Police Act inasmuch as he was found at Brahmapuri on the relevant date when externment order was in force. 7. Learned A.P.P. has contended that the applicant is rightly held guilty for the offence under section 142 of the Bombay Police Act inasmuch as he was found at Brahmapuri on the relevant date when externment order was in force. According to him, as the applicant is habitual offender and notorious criminal, he was rightly sentenced to suffer imprisonment for two years, a maximum sentence provided for. 8. It does appear from the evidence on record that the defence of the applicant that he was taken to Brahmapuri for making out a case for the offence under section 142 of the Bombay Police Act, was rightly disbelieved by the learned Trial Judge and also by the appellate court. There appear no infirmities about the finding of his guilt. It is not possible to believe in absence of any specific material to show that Police had falsely implicated him by taking him from some other place to Bramhapuri. Therefore, he has to be found guilty of the offence under section 142 of the Bombay Police Act. The judgment of the learned trial Judge and appellate Judge confirming the same, can not be said to be incorrect, improper and unjust in that behalf. Now only question remains regarding the sentence. 9. It appears from the provisions of Section 142 of the Bombay Police Act that on conviction, the accused can be punished for imprisonment for a term of 2 years. 10. It is necessary to bear in mind that the sentence of 2 years is the maximum which is provided for the said offence. Although it seems that the learned trial Judge was of the opinion that the applicant is notorious criminal & for 11 times he was sent to jail, applicant was convicted for committing the offences of theft 3 times and for committing an offence of lurking house tress pass or house breaking at night for 3 times. There appears no material on record to show that as to what was the gravity of those offences and maximum punishment for this offence is called for. Therefore, the order of sentence appears to be improper and unjust. 11. In these circumstances, it would be just and proper to reduce the sentence to already undergone i.e. which appears to be about 1 year and 8 months and some days. Therefore, the order of sentence appears to be improper and unjust. 11. In these circumstances, it would be just and proper to reduce the sentence to already undergone i.e. which appears to be about 1 year and 8 months and some days. Sentence of fine is however, maintained, but in default sentence would also be reduced to one month. 12. In these circumstances, the revision application is partly allowed. Conviction of the applicant for the offence under section 142 of the Bombay Police Act is maintained, however, the substantive sentence is reduced to already undergone and while maintaining the sentence of fine in default the sentence is reduced to one month. Ordered accordingly. Fees of the learned counsel appointed for the applicant is quantified to Rs.1 ,000/-. This order may be communicated to the jail authorities. Application partly allowed.