Final Order 1

Order Details: Order Below EX 1
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IN THE COURT OF ADDL. CHIEF METROPOLITAN MAGISTRATE,
9TH COURT, BANDRA, MUMBAI.
C. C. No.1860/PS/2021
State V/s. Faizal Bakar Ali & Other
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. 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 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 of police case directly
in respect of offence punishable under section 188 of Indian Penal Code.
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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 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 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.
Sd/
(Prashant H. Kharwade)
Addl. Chief Metropolitan Magistrate,
Date : 25/09/2021 9th Court, Bandra, Mumbai.
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