Final Order 1

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
First Information Report lodged against unknown person. Accused was arrested and
nothing transpired against him, despite that charge sheet is filed. There found no
evidence in the charge sheet to connect the accused with the allegations. 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 if accused absent. Only
mandatory requirement is hearing the prosecution.
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
material on record to proceed further. But 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 observed above it is noticed that the
First Information Report was lodged against unknown person. During investigation
nothing transpired from which it can be said that accused is the person, responsible for
the theft of the property allegedly stolen. Charge sheet is mainly based only on first
information report and some other material, on the basis of which accused can not be
connected with the alleged act. The identification parade also not done. There found
nothing on the basis of which accused can be connected with present matter. 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
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accused and concluded on the basis of evidence produced, will be nothing but an empty
formality.
5. In view of such status of evidence produced in the matter, the provisions of
Sections 239 of Code of Criminal Procedure, is 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 shall be refunded to accused after appeal period.
c. The property, if any, seized and not yet returned to informant, it shall be returned
forthwith.
d. Proceedings stands disposed off.
MUMBAI (KOMALSING RAJPUT)
DATE – 06.07.2024 J.M.F.C., 12TH COURT, BANDRA, MUMBAI
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