Final Order 1

Order Details: Order Below EX 1
Pdf Text: ORDER BELOW EXH.1
1. Accused absent. After going through the record it is noticed that First
Information Report lodged against unknown person. Accused was arrested and nothing
transpired against him, despite that charge sheet is filed. There found no evidence in the
charge sheet to connect the accused with the allegations. Sections 239 and 245(2) of
Code of Criminal Procedure, provides that -
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 the hearing of Ld. Public Prosecutor is
mandatory and not the hearing of 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.
2. Further, Section 245(2) of Code of Criminal Procedure provides that,
Nothing in this section shall deemed to prevent a Magistrate from discharging accused at any
previous stage of the case if, for the reasons to be recorded by such Magistrate, he considers the charge to
be groundless.
This provision also needs due consideration, which empowers the court to
discharge the accused, if charge is found to be groundless.
3. Accordingly, heard Ld. A.P.P. on the point, as to why accused shall not be
discharged?, as there is no enough material to proceed further. He submitted that there is
material on record to proceed further. But there found no explanation about the
connection of accused with the alleged act or other material aspects discussed above.
4. If the merits of the matter considered, it is noticed that the First Information
Report was lodged against unknown person. During investigation nothing transpired
from which it can be said that accused is the person, responsible for the theft of the
property allegedly stolen. Charge sheet is mainly based only on first information report
and statement of witnesses. The identification parade also not done. There found nothing
on the basis of which accused can be connected with present matter. The present final
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report, even if accepted by accused 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, will be nothing but an empty formality.
5. In view of such status of evidence produced in the matter, the provisions of
Sections 239 and 245(2) of Code of Criminal Procedure, are squarely applicable to it.
Accused bound to be discharged. There is no point in keep the matter pending further,
accordingly following order -
ORDER
a. Accused discharged U/Sec.239 of Code of Criminal Procedure.
b. Cash security, if any, deposited shall be refunded to accused after appeal period.
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 – 26.07.2023 M.M., 12TH COURT, BANDRA, MUMBAI
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