Final Order 1

Order Details: Order Below EX 1
Pdf Text: C. C. No. 212 PW 2024 State Vs Mohd. Rafique
CNR-MHMM18-000146-2024
ORDER BELOW EXH.1
1. Perused record. Accused produced through video conferencing. On
his behalf advocate Miss Vaidehi Pusalkar, L.A.D.C., present.
2. During V.C. accused pleaded not guilty and claimed to be tried. Ld.
Advocate for the accused submitted that there is no sufficient material on
record to frame the charge against the accused. He is in custody since the
month of November 2023. Despite granting bail by this Court, he is
custody as he is unable to furnish the bail amount or surety bonds as
ordered by this Court. He has not been produced since long and matter is
prolonging due to failure of the prosecution to produce the accused before
Court for framing of charge. As there is no enough material on record for
framing charge the detention of accused is nothing but curtailing of
fundamental right of liberty of accused. Therefore, he shall be discharged.
3. Heard Ld. A.P.P. and submitted that the property allegedly stolen is
seized from the accused, therefore, there is reasonable connection of the
accused with the incidence and hence, accused can not be discharged.
4. After going through the whole charge sheet, it reflects that it
constitutes only two documents i.e. First Information Report and
Panchanama. First Information Report is against unknown person,
however the panchanama/personal search report reflects that accused was
found driving the stolen vehicle and it was seized from him.
5. If this evidence accepted by accused it can be inferred that the main
evidence to connect him with the alleged incidence is missing. However,
only corroborative piece of evidence i.e. seizure panchanama, is on
record. There is no evidence on record to show how accused came in
possession of the property. Being seizure panchanama only, it can not be
said to be discovery of fact within the meaning of Section 27 of Evidence
Act or presumption under Section 114 of the said Act, can not be invoked
as main evidence to connect the accused with the alleged act of theft is
Page - 1/2
-- 1 of 2 --
C. C. No. 212 PW 2024 State Vs Mohd. Rafique
CNR-MHMM18-000146-2024
missing. Thus, it can be said that the material on record even if accepted
by the accused as it is he can not be convicted.
6. Section 239 of Code of Criminal Procedure provides that,
If upon considering the police report and the documents sent with it under Section 173 and
making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the
prosecution and the accused an opportunity being heard, the Magistrate considers the charge against
the accused to be groundless, he shall discharge the accused, and record his reasons for doing so.
The summary of this provision is that if upon considering the
material produced Magistrate thinks charge to be groundless, he shall
discharge the accused and shall also record reasons for doing so. Further,
Magistrate must hear the prosecution, it is not necessary to hear the
accused. It means the hearing of Ld. Public Prosecutor is mandatory and
not the hearing of accused. If this mandatory requirement is satisfied and
charge found to be groundless, there is no bar to pass the order of
discharge of accused under Section 239 of Code of Criminal Procedure
even though accused absent/warrant is pending.
7. In view of above discussed status of evidence as no conviction is
warranted even if the accused accepts the whole final report as it is, it can
be said that charge is groundless. Therefore, following order -
ORDER
a. Accused is discharged under Section 239 of Code of Criminal
Procedure.
b. Accused is in jail since 05.11.2023. He shall be released forthwith,
if not required in any other offences. Inform Jail Authorities accordingly.
c. Proceedings stands disposed off.
Sd/-
MUMBAI (KOMALSING RAJPUT)
DATE – 06.02.2024 M.M., 12TH COURT, BANDRA, MUMBAI
Page - 2/2
-- 2 of 2 --