JUDGMENT :

1. This application under section 482 of the Criminal Procedure Code is filed for quashing the criminal proceedings being Criminal Case No. 1469 of 2020 arising out of N.C. Memo No. 12 of 2020 filed and pending before the Chief Judicial Magistrate, Dahod.

2. It is the case where on 22.12.2020, an incident took place in the main Court of the Principal District Court, Dahod, where the applicant in due discharge of his duty as an advocate was attending the Court when accidentally, the mobile phone of the applicant buzzed in vibration mode, which was noticed by the Presiding Judge and hence, the applicant had tendered apology, however, the mobile phone was seized and was handed over to the Court duty Constable, who had issued N.C. Memo No. 12 of 2022 for the offence punishable under Sections 116 and 117 of the Bombay police Act and as the petitioner did not plead guilty, the Non-Cognizable case was transferred to the Court of Chief Judicial Magistrate with Criminal Case No.1469 of 2020.

3. Learned advocate for the applicant submitted that though the matter had proceeded in due course upon the seizure of the mobile phone, the applicant begs to raise the basic contention that the act alleged against the applicant does not construe an offence under Sections 116 and 117 of the Bombay Police Act, and therefore, no prosecution can be maintained against the applicant.

4. Learned advocate for the applicant submitted that the applicant is a District Government Pleader of a reputation and is in fact, suffering from Cancer and the mobile phone vibration (buzz) was an alarm for him to consume his medicine at a particular time. It is in this background that the applicant has approached this Court for quashing of the proceedings.

5. Learned APP has opposed the application by submitting that the explanation offered to the Court here with regards to the vibration of the mobile phone during the Court proceedings, the same explanation could also be offered to the Court where the proceedings are pending and simplicitor by such value explanation, the proceedings cannot be quashed.

6. Having considered the rival submissions of the parties and having perused the documents on record, the fact, as narrated are the applicant is a District Government Pleader, who was attending the Court in due course of his duty where the mobile phone buzzed in vibration mode, which according to the petitioner, was a set alarm for the purpose of consuming the medicine, which he was supposed to take, as he was suffering from Cancer. It is also submitted to the Court that the applicant immediately apologies to the Presiding Officer, however, it appears that the Presiding Officer has taken exception and has forwarded the complaint for initiating the proceedings under Sections 116 and 117 of the Bombay Police Act.

7. Sections 115 and 116 of the Bombay Police Act are covering the commission of nuisance in or near street and dis-regarding of notice in public building respectively. The definition of Section 115 refers to commission of nuisance by the act of easing oneself, a child under the age of 7 is made to suffer by such nuisance or creating annoyance to passerby by spitting, throwing dust, ashes, refuse or rubbish, whereas Section 116 prohibits any person in Court, Police Station, Police Office or the buildings occupied by Government or building occupied by any public body, smoking or spitting in contravention of a notice by a competent authority in charge of such place and affixed to such Court, Station, office or building.

8. From the documents placed on record and the submissions made on behalf of the State, nothing is indicated with regard to any public notice on the Court building in connection with the mobile phone. The Division Bench of Bombay High Court in case of Dnyaneshwar s/o. Vithuji Ghude Vs. State of Maharashtra & Anr reported in 2014 SCC Online 1469 had an occasion to examine the act covered under the provisions of Sections 116 and 116 of the Bombay Police