Final Order 1

Order Details: Order Below EX 1
Pdf Text: ORDER BELOW EXH.1
1. The record reflects that accused continuous absent since long. Various processes
were issued against accused, but presence can not be secured till today. As such matter is
still pending, though repeatedly, various efforts made to secure the presence of the
accused and dispose off the matter, as early as possible. The record shows that the
possibility of appearance of accused in near future is almost nil.
2. Section 239 of Code of Criminal Procedure provides 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,
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.
3. The most important factor after going through the record of matter about the
merits of this matter, for which whole exercise is done, noticed is that, the basic piece of
evidence necessary to prove the charge is report of Chemical Analyser to prosecute the
accused. This material piece of evidence is missing. It is not produced on record while
filing charge sheet or latter on during long span of time. Trial if commenced, after
securing presence of accused and concluded on the basis of evidence produced, it is
nothing but an empty formality. It means even after securing presence of accused and
concluding trial on the basis of evidence produced by prosecution the possibility of
conviction of accused on its basis is nil. As such, there is no point in keeping the matter
pending further. Therefore, following order -
ORDER
a. Accused discharged U/Sec.239 of Code of Criminal Procedure.
b. Cash security, if any, deposited is forfeited to the Government and the property,
if any, seized and not yet returned to informant, it shall be returned forthwith.
c. Proceedings stands disposed off.
MUMBAI (KOMALSING RAJPUT)
DATE – 13.07.2023 M.M., 12TH COURT, BANDRA, MUMBAI
11 Page 1/1
-- 1 of 1 --