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.1752/PS/2021
State V/s. Asif Shabbir Shaikh & 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 and
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 and 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
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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.
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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