Final Order 1

Order Details: Order Below EX 1
Pdf Text: ORDER BELOW EXH.1
1. Perused record. Heard Ld. A.P.P. After going through the record it became
necessary to consider the provisions of discharge, under Section 239 of Code of
Criminal Procedure.
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. The only mandatory requirement is hearing the Public Prosecutor.
2. 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
ample material on record to proceed further. There found no explanation about the
connection of accused with the alleged act or other material aspects discussed above.
3. If the merits of the matter considered, it is noticed that the First Information
Report was lodged against known person only on the ground of suspicion. During
investigation it is transpired that accused responsible for the theft of the property
allegedly stolen. Charge sheet is mainly based on evidence of recovery i.e.
circumstantial evidence. The evidence of recovery shows that 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. Therefore, there is doubt over the admissibility of
this evidence. Further, there found variation in the property stolen and allegedly
recovered from the accused. As such it can not be said that there found reasonable
connection of the accused with the allegations. The identification parade also not done.
4. The charge sheet is based only on circumstantial evidence. In view of above
discussed status of evidence produced with charge sheet, the chain of circumstances,
leading to unimpeachable conclusion of guilt of accused, can not be formed, even if the
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whole evidence collected by prosecution, is accepted by accused as it is. The present
final 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, is nothing but an empty
formality.
5. In view of such status of evidence produced in the matter the provisions of
Sections 239 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 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 – 06.07.2024 J.M.F.C., 12TH COURT, BANDRA, MUMBAI
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