Final Order 1

Order Details: Order Below EX 1
Pdf Text: C. C. No. 3776 PW 2005 State Vs Anand and anr.
(Original Case No.1131/P/2002)
CNR MHMM18-004665-2018
ORDER BELOW EXH.1
1. The original matter is of 2002. It is in respect of an offence
punishable under Section 379 of Indian Penal Code, alleging that accused
committed theft of cash of Rs.2,000/- only, belonging to informant.
2. Heard Ld. A.P.P.
3. The record reflects that the First Information Report was lodged
against unknown person. During investigation it is transpired that accused is
the person, responsible for the theft of the property allegedly stolen. Charge
sheet is mainly based on evidence of recovery. Further, the original
papers relating to recovery are not on record. Prosecution relied only
on photocopies filed with charge sheet. This evidence is inadmissible for
two reasons. First, primary evidence is totally missing. Second, in the
alternative, even if it is presumed that recovery is proved, 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. The
identification parade also not done.
4. Thus, the final report is based on inadmissible evidence. Even if, the
whole final report accepted as it is presuming that incidence of theft
occurred, no conviction is warranted.
5. The original matter is of 2002. The record reflects that Accused
continuous absent since long. All the processes upto the stage of
proclamations were issued against accused, but presence can not be secured
till today, as such matter is still pending. The summary of various reports of
Serving Officer shows that the possibility of appearance of accused in near
future is almost nil. In such a situation, considering the age of the matter,
directions issued to dispose off old matter as earliest as possible, orders
needs to be passed. Remaining idle, keeping them dormant, stale and
ineffective, is creating unnecessary work burden on the court machinery.
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C. C. No. 3776 PW 2005 State Vs Anand and anr.
(Original Case No.1131/P/2002)
CNR MHMM18-004665-2018
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 necessory 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 what is mandatory is, is hearing the
Ld. Public Prosecutor and not the 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. There are 12000+ matters pending in this court. Majority of them are
very old and accused persons are absent. Despite taking efforts there
presence can not be secured. The situation in and outside the court is such
that the possibility of appearance of accused, in some cases is almost nil.
Repeatedly directions issued by higher court to dispose off the old matters
at the earliest. Keeping those matters on dormant file is also creating
unnecessary work burden on the court machinery, resulting in further
complications. Such a exercise in the backdrop of these discussed facts,
proved futile. Some out of way thinking is necessary. Some orders needs to
be passed to dispose them off by exhausting other legal means, atleast in the
matters of such nature, as present one, where securing the presence of
accused and passing judgment on so called merits of the matter, is nothing
but an empty formality.
8. Considering the above discussed legal and factual aspects of the
matter, it is clear that securing the presence of the accused in near future
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C. C. No. 3776 PW 2005 State Vs Anand and anr.
(Original Case No.1131/P/2002)
CNR MHMM18-004665-2018
and convict him on merits of the matter based on evidence produced on
record, is nil, there is no point in keeping the matter pending. Therefore,
following order -
ORDER
a. Accused is discharged under Section 239 of Code of Criminal
Procedure.
b. Cash security, if any, deposited is forfeited to the Government.
c. Proceedings stands disposed off.
MUMBAI (KOMALSING RAJPUT)
DATE – 09.12.2022 M.M., 12TH COURT, BANDRA, MUMBAI
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