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2012 DIGILAW 788 (BOM)

Pradeep Ramesh Kumbhare v. State of Maharashtra

2012-04-13

A.P.BHANGALE

body2012
JUDGMENT: 1. Heard learned counsel for the applicant. 2. Admit. Learned A.P.P. waives service for respondent/State. Taken up for final hearing forthwith by consent of the parties. 3. Head Constable-Israil Sharif, B/No.529A of Police Station Ambazari, Nagpur was on patrolling duty alongwith staff members in the night of 9.3.2011. He found one person at Bajiprabhu Nagar hiding his identity. He was accosted by Head Constable-Israil Sharif with the help of staff and upon inquiry, he disclosed his name to be Pradeep Ramesh Kumbhare, present applicant. During the interrogation, the applicant was not found giving proper replies and it was thus suspected that he was hiding his movement for the purpose of commission of some serious offence. The applicant was arrested for an offence punishable under Section 122(c) of the Bombay Police Act, 1951. The applicant has prayed for to quash the charge sheet No.262/11 and consequent proceeding in Criminal Case No. 309130/11 pending in the Court of Judicial Magistrate, First Class, Nagpur. 4. Section 122(c) of the Bombay Police Act, 1951 reads as under:- “122. Being found under suspicious circumstances between sunset and sunrise. (a)........... (b).......... (c) in any dwelling-house or other building, or on board of any vessel or boat without being able satisfactorily to account for his presence there. Shall, on conviction, be punished with imprisonment which may extend to one year, but shall not, except for reasons to be recorded in writing, be less than one month and shall also be liable to fine which may extend to (one thousand rupees.)” 5. Bare perusal of the said provision reveals that in order to constitute offence under Section 122(c) of the Bombay Police Act, concerned person must be found under suspicious circumstances between sunset and sunrise in any dwelling-house or other building, or on board of any vessel or boat without being able satisfactorily to account for his presence there. In the present case, admittedly, the applicant was not found in any dwelling-house or building, and the allegation against him is that he was found in darkness near the house of one Nashine at Bajiprabhu Nagar, Nagpur. The prosecution of the applicant, therefore, for the offence punishable under Section 122(c) of the Bombay Police Act, 1951 could not have been initiated. It is not sustainable according to law and will have to be quashed and set aside. 6. In the result, the application is allowed. The prosecution of the applicant, therefore, for the offence punishable under Section 122(c) of the Bombay Police Act, 1951 could not have been initiated. It is not sustainable according to law and will have to be quashed and set aside. 6. In the result, the application is allowed. Charge sheet No. 262/11, dated 31.3.2011 and consequent proceedings in Criminal Case No. 309130/11 pending in the concerned Court of Judicial Magistrate, First Class, Nagpur are hereby quashed and set aside. Application is allowed accordingly.