Final Order 2

Order Details: Order Below EX 1
Pdf Text: ORDER BELOW EXH.1
1. Perused record. Heard Ld. A.P.P. After going through the record it is noticed that
the First Information Report was lodged against unknown person. During investigation it
is transpired that accused responsible for the theft of the property allegedly stolen.
Charge sheet is mainly based on evidence of recovery i.e. circumstantial evidence. It is
noticed that material to proceed further is deficient.
2. Now the matter is fixed for framing of charge and hence, it became necessary to
consider the provisions of discharge, under Section 239 of Code of Criminal Procedure.
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. The only mandatory requirement is hearing the Public Prosecutor.
3. Accordingly, heard Ld. A.P.P. on the point, as to why accused shall not be
discharged?, as there is no enough material to proceed further. He submitted that there is
ample material on record to proceed further. There found no explanation about the
connection of accused with the alleged act or other material aspects discussed above.
4. If the merits of the matter considered, as stated above it is noticed that the First
Information Report was lodged against unknown person. During investigation it is
transpired that accused responsible for the theft of the property allegedly stolen. Charge
sheet is mainly based on evidence of recovery i.e. circumstantial evidence. The evidence
of recovery shows that the contents are relating to discovery of article and not discovery
of fact, besides other grounds, as required by Section 27 of Indian Evidence Act.
Therefore, there is doubt over the admissibility of this evidence. Further, there found
variation in the property stolen and allegedly recovered from the accused. As such it can
not be said that there found reasonable connection of the accused with the allegations.
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The identification parade also not done. The charge sheet is based only on circumstantial
evidence. In view of above discussed status of evidence produced with charge sheet, the
chain of circumstances, leading to unimpeachable conclusion of guilt of accused, can not
be formed, even if the whole evidence collected by prosecution, is accepted by accused
as it is.
5. The present final report, even if accepted by accused as it is presuming that
incidence of theft occurred, no conviction is warranted. Trial if commenced, after
securing presence of accused and concluded on the basis of evidence produced, is
nothing but an empty formality.
6. In view of such status of evidence produced in the matter the provisions of
Sections 239 of Code of Criminal Procedure, are squarely applicable to it. Accused
bound to be discharged. There is no point in keep the matter pending further,
accordingly following order -
ORDER
a. Accused discharged U/Sec.239 of Code of Criminal Procedure.
b. Cash security, if any, deposited is forfeited to the Government.
c. The property, if any, seized and not yet returned to informant, it shall be returned
forthwith.
d. Proceedings stands disposed off.
Sd/-
MUMBAI (KOMALSING RAJPUT)
DATE – 01.03.2024 M.M., 12TH COURT, BANDRA, MUMBAI
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