Final Order 1

Order Details: Order Below EX 1
Pdf Text: ORDER BELOW EXH.1
1. The matter is old. The offence, if considered in the light of allegations and
stake of property involved can not be said to be much serious.
2. 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
summary of various reports of Serving Officer shows that the possibility of
appearance of accused in near future is almost nil.
3. There are 12000+ matters pending in this court. In addition to various
urgent works, besides this huge pendancy of matters to be disposed off, there is
consequential additional work as well. These factors create tremendous work
burden and time constraints on the court, human resource and infrastructure of it.
This aspect also resulted in pendancy of this matter for long time and it can not be
disposed till date, despite taking efforts.
4. Previously and recently also, repeatedly directions were issued by High
Court to dispose off the old matters at the earliest. Now action plan is formed,
named as Action Plan, 2023, to dispose off the old matters within particular time
frame, which is already circulated along with directions. The directions were
again issued vide letter of Hon'ble Registrar (Inspection I), bearing
No.SCMS/4/2023, dated 09.01.2023, along with letter of Hon'ble Chief
Metropolitan Magistrate, Mumbai, bearing No.421/2023, dated 24.01.2023,
annexing the list of matters to be disposed off as per time frame provided for
particular matters in a meeting held by SCMS Committee, as per Action Plan. The
present matter is also covered by the said action plan which directs to dispose it
off earliest.
5. 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, 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 i.e. circumstantial evidence. Further, the original papers relating to
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recovery are not on record. Prosecution relied only on photocopies filed with
charge sheet. Thus, prosecution is bound to prove the chain of circumstances,
leading to unimpeachable conclusion of guilt of accused and nothing else.
6. Thus, the main evidence produced is inadmissible, as primary evidence is
totally missing. 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. On the basis of this evidence produced, the chain of circumstances, leading
to unimpeachable conclusion of guilt of accused, can not be formed, even if the
whole evidence collected by prosecution, is accepted by accused as it is. It means
the final report is based on inadmissible evidence. In the alternative, even if, the
present final report accepted as it is presuming that incidence of theft occurred, no
conviction is warranted. Trial if commenced, after securing presence of accused
and concluded on the basis of evidence produced, is nothing but an empty
formality.
7. It is already discussed that, matter is very old. Accused continuous absent
and despite taking efforts his presence not secured. The possibility of securing his
presence in near future is almost nil. So also, as discussed above, on the basis of
evidence produced the trial seems to be just empty formality. Keeping this matter
on dormant file will also create unnecessary work burden, resulting in
unnecessary complications. It will also have an effect of disobeying the directions
issued by High Court. The number of old matters to be disposed off as per
directions is above 5000. The time frame provided is short.
8. These aspects posed somewhat peculiar situation before this court. On one
hand the securing presence of accused and concluding trial within frame work
provided for disposal of old matters seems to be difficult and on the other hand
even if this exercise done the trial is nothing but an empty formality going to
result in acquittal of the matter. This factor compels this court to find for some
other legal means to dispose it off within time frame. There is no point in keep the
matter pending further.
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9. The summary of above discussion is that, at the cost of repetition it is
necessary to mention that the matter is very old. 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 the present matter on dormant file,
making it stale and ineffective, is creating unnecessary work burden on the court
machinery. Therefore, considering all these facts and circumstances, this court
proceeded further with following observations.
10. 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
necessary 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.
11. Accordingly, heard Ld. A.P.P. He submitted that there is ample material on
record to proceed further. There found no explanation about the admissibility of
the evidence and other material aspects discussed above.
12. As observed above, after going through the record of the matter it is
noticed that 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 i.e. circumstantial evidence. Further, the original
papers relating to recovery are not on record. Prosecution relied only on
photocopies filed with charge sheet. Thus, prosecution is bound to prove the chain
of circumstances, leading to unimpeachable conclusion of guilt of accused and
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nothing else. The evidence produced is inadmissible, as primary evidence is
totally missing and 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. On the basis of evidence produced, the chain of circumstances, leading to
unimpeachable conclusion of guilt of accused, can not be formed, even if the
whole evidence accepted as it is.
13. Thus, the final report is mainly based on inadmissible evidence. In the
alternative, even if, the present final report accepted as it is presuming that
incidence of theft occurred, no conviction is warranted. It means even after
securing presence of accused and concluding trial on the basis of evidence
produced, trial is nothing but an empty formality.
14. Considering the above discussed legal and factual aspects of the matter, it
is clear that securing the presence of the accused in near future 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 discharged U/Sec.239 of Code of Criminal Procedure.
b. Cash security, if any, deposited is forfeited to the Government.
c. The property, if any, seized and not yet returned to informant, it shall be
returned forthwith.
d. Proceedings stands disposed off.
MUMBAI (KOMALSING RAJPUT)
DATE – 18.02.2023 M.M., 12TH COURT, BANDRA, MUMBAI
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