Case Note & Summary
The applicant, Pradeep Ramesh Kumbhare, was arrested by Head Constable Israil Sharif on the night of 9 March 2011 at Bajiprabhu Nagar, Nagpur, on suspicion of hiding his identity. He was charged under Section 122(c) of the Bombay Police Act, 1951, which penalizes being found under suspicious circumstances between sunset and sunrise in any dwelling house or other building, or on board any vessel or boat, without being able to satisfactorily account for one's presence. The applicant filed a criminal application under Section 482 of the Code of Criminal Procedure, 1973, seeking quashing of the charge sheet and consequent proceedings in Criminal Case No. 309130/11 pending before the Judicial Magistrate, First Class, Nagpur. The court examined the provision and noted that the applicant was found near a house, not inside any dwelling house or building. The court held that the essential ingredient of the offence was missing, as the applicant was not found in any dwelling house or building. Consequently, the court allowed the application and quashed the charge sheet and all proceedings against the applicant.
Headnote
A) Criminal Law - Bombay Police Act - Section 122(c) - Essential Ingredients - The offence under Section 122(c) requires that the person be found under suspicious circumstances between sunset and sunrise in any dwelling house or other building, or on board any vessel or boat. Mere presence in an open area near a house does not satisfy the requirement. The court held that since the applicant was not found inside any dwelling house or building, the essential ingredient of the offence is missing, and the prosecution is liable to be quashed. (Paras 4-6)
Issue of Consideration
Whether the applicant's presence near a house (but not inside a dwelling house or building) can constitute an offence under Section 122(c) of the Bombay Police Act, 1951.
Final Decision
The court allowed the application and quashed the charge sheet No.262/11 and consequent proceedings in Criminal Case No. 309130/11 pending before the Judicial Magistrate, First Class, Nagpur.
Law Points
- Section 122(c) Bombay Police Act
- 1951 requires presence in dwelling house or building
- strict interpretation of penal statute
- quashing of criminal proceedings when essential ingredient missing
Case Details
2012 LawText (BOM) (04) 82
Criminal Application (APL) No.5 of 2012
Ms. Priti Badwaik with Shri P.P. Pendke for applicant, Mr. J.B. Jaiswal, A.P.P. for non-applicant
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Nature of Litigation
Criminal application under Section 482 CrPC for quashing of charge sheet and proceedings
Remedy Sought
Quashing of charge sheet No.262/11 and Criminal Case No. 309130/11 pending before Judicial Magistrate, First Class, Nagpur
Filing Reason
Applicant was arrested for allegedly being found under suspicious circumstances near a house, but not inside any dwelling house or building, thus the essential ingredient of Section 122(c) Bombay Police Act was missing
Issues
Whether the applicant's presence near a house (but not inside a dwelling house or building) can constitute an offence under Section 122(c) of the Bombay Police Act, 1951.
Submissions/Arguments
Learned counsel for the applicant argued that the applicant was not found in any dwelling house or building, and therefore the essential ingredient of Section 122(c) is missing.
Learned A.P.P. waived service and the matter was taken up for final hearing.
Ratio Decidendi
For an offence under Section 122(c) of the Bombay Police Act, 1951, the person must be found under suspicious circumstances between sunset and sunrise in any dwelling house or other building, or on board any vessel or boat. Mere presence in an open area near a house does not satisfy the requirement. Since the applicant was not found inside any dwelling house or building, the essential ingredient of the offence is missing, and the prosecution is liable to be quashed.
Judgment Excerpts
Bare perusal of the said provision reveals that in order to constitute offence under Section 122(c) of the Bombay Police Act, 1951, 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.
Procedural History
The applicant was arrested on 9 March 2011 and charged under Section 122(c) of the Bombay Police Act, 1951. A charge sheet was filed, and Criminal Case No. 309130/11 was pending before the Judicial Magistrate, First Class, Nagpur. The applicant filed Criminal Application (APL) No.5 of 2012 before the Bombay High Court seeking quashing of the proceedings. The court admitted the application and, with consent of parties, took it up for final hearing.
Acts & Sections
- Bombay Police Act, 1951: 122(c)
