Bombay HC acquits railway trespasser

The Bombay High Court has set free a labourer who was arrested for trespassing on railway property after observing that though he had pleaded guilty to the offence, the charge itself was not properly framed. It added that the Magistrate had ‘not applied his mind' while convicting the accused.

On August 29, 2011, labourer Rizwan Nabi Qureshi (39), living at Garib Nagar in Bandra, was arrested for trespass and ‘making noise' on the abandoned railway premises following an RPF (Railway Police Force) raid.

The police found Qureshi and a number of Kashmiri nationals living illegally at a Railway Colony in Kherwadi and arrested all of them. Qureshi claimed he had nothing to do with the offence and was in the wrong place at the wrong time.

He was then produced before the Railway Mobile Metropolitan court along with a crowd of about 50 other arrested people. In the confusion, the Magistrate never asked anyone to defend themselves as required by law.

He was asked to sign a piece of paper and told he would be released after paying Rs 1,500. As per the court record however, Qureshi had pleaded guilty.

He later realized that he'd been sentenced to a month in prison as well. According to his revision application in the High Court, this was the first time such a stiff sentence had been imposed by the in-charge court, that too as the regular judge was on leave.

Though Qureshi appealed the conviction to the Sessions Court, the appeal was dismissed because the CrPC doesn't allow an appeal if an accused has pleaded guilty. He then approached the High Court. He had spent 10 days in jail.

At the High Court, Justice AM Thipsay noted that the charge-sheet was a rubber-stamp pro forma, where Qureshi had said "Mujhe gunaah kabool hai." The court noted that no grounds for Qureshi's arrest were mentioned. Advocate Ram Mani Upadhyay represented Qureshi.

The court observed, "When an accused pleads guilty, no appeal except as to the extent or legality of the sentence would lie… However, the plea of guilty must be a legally valid plea. It presupposes that the accused has been explained the nature and particulars of the offence, which he is alleged to have committed, and it is only after understanding the same, he pleaded guilty. There is no reference to any nuisance or act of indecency or use of abusive or obscene language." All that was recorded was the vague charge that Qureshi was ‘making noise'.

Moreover, though Qureshi was charged with two offences, the order passing the sentence never mentioned which sentence was for which offence. The court noted that the entire prosecution was bad in law and acquitted him.u00a0