Final Order 2

Order Details: Order Below EX 1
Pdf Text: – 1 –
IN THE COURT OF ADDL. CHIEF METROPOLITAN MAGISTRATE,
9TH COURT, BANDRA, MUMBAI.
C. C. No.948/PS/2020
State V/s. Mohd.Afjal Abdul Rehman Selot & Others
Order Below Exh.1
(Under section 258 of Cr.P.C.)
Accused have been chargesheeted for the offence punishable
under section 188, 269, 271 of the Indian Penal Code, section 2, 3 and 4 of
the Epidemic Disease Act and section 51 of the Disaster Management Act.
Offence punishable under section 269 and 271 of I.P.C. are applicable
when the accused is found doing an act known to be likely to spread
infection of any disease dangerous to life or breaking or disobeying any
quarantine rule. However, no report has been filed in this case showing
whether the accused persons had tested corona positive having regard to
the fact that the accused have been booked under relevant provisions for
disobeying order promulgated during lock down imposed by the State
Government for containment of Covid19 disease. Therefore, offence
punishable under section 269 or 271 of I.P.C. are not applicable to this
case. Similarly, breach of the provisions contained in section 2,3 and 4 of
the Epidemic Disease Act and Section 51 of Disaster Management Act is
applicable for breach of order promulgated in respect of containment of
dangerous Epidemic Disease. Breach of that order will result in
prosecution of accused of the offence punishable under section 188 of the
Indian Penal Code. However, for the purpose of prosecution of concerned
persons under section 188 of Indian Penal Code the procedure prescribed
in section 195 of the Code of Criminal Procedure is required to be followed
which makes it mandatory to file complaint in writing by concerned officer
who promulgated the order. Section 195 of Cr.P.C. does not permit filing
..2/
-- 1 of 2 --
– 2 –
of police case directly in respect of offence punishable under section 188 of
Indian Penal Code.
2. Thus, it appears that there is no report of the accused persons
being corona positive, therefore question of committing offence
punishable under section 269 and 271 of the Indian Penal Code does not
arise. Moreover, no complaint has been filed in respect of offence under
section 188 of I.P.C. due to contravention of section 2, 3 and 4 of
Epidemic Disease Act and section 51 of Disaster Management Act as
contemplated under section 195 of Cr.P.C.. Therefore, it will not be
proper to continue prosecution of the accused persons and to compel them
to face the trial for the offence which cannot be continued by this Court
due to nonobservation of requisite procedure. Therefore, it will be proper
to discharge the accused persons under section 258 of Cr.P.C. Hence, I
proceed to pass the following order.
O R D E R
* The proceeding against the accused is hereby stopped under
section 258 of the Code of Criminal Procedure in respect of alleged
offence. They are discharged from alleged offences.
* Bail bond of accused shall stand cancelled.
* The Muddemal property i.e. three motorcycles have already been
handed over to their registered owners. They shall have right to retain the
same after the appeal period is over. Their Indemnity bonds shall stand
cancelled.
* The Muddemal property i.e. seized motorcycle bearing
registration No.MH01CL5314 be returned to it registered owners after
the appeal period is over. Sd/
(Prashant H. Kharwade)
Addl. Chief Metropolitan Magistrate,
Date : 25/09/2021 9th Court, Bandra, Mumbai.
../
-- 2 of 2 --