Final Order 1

Order Details: Order Below EX 1
Pdf Text: C. C. No. 1850 PW 2023 State Vs Habib
CNR-MHMM18-008207-2023
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
Page - 1/3
-- 1 of 3 --
C. C. No. 1850 PW 2023 State Vs Habib
CNR-MHMM18-008207-2023
found nothing on the basis of which accused can be connected with present matter.
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, will be nothing
but an empty formality.
5. The matter is at the stage of framing of charge. The material needs to be
scrutinized diligently. Recently about this stage of framing of charge, Supreme Court
in case of State of Tamil Nadu Vs S. Saundirarasu and ors. ((2023) 6 SCC 768), laid
down that, -
Para.61. Section 239 envisages a careful and objective consideration of the
question whether the charge against the accused is groundless or whether there
is ground for presume that he has committed an offence. What Section 239
prescribed is not, therefore, an empty or routine formality. It is a valuable
provision to the advantage of the accused, and its breach is not permissible
under law. But if the Judge, upon considering the record, including the
examination, if any, and the hearing, is of the opinion that there is “ground for
presuming” that accused has committed the offence triable under the Chapter,
he is required by Section 240 to frame in writing a charge against the accused.
The order for the framing of charge is also not an empty or routine formality.
It is of a far-reaching nature, and it amounts to a decision that the accused is
not entitled to discharge under Section 239, that there is, on the other hand,
ground for presuming that he has committed an offence triable under Chapter
XIX and that he should be called upon to plead guilty to it and be convicted
and sentenced on that plea, or face the trial. (See : V. C. Shukla Vs State, 1980
Supp SCC 92).
Para.62. Section 239 of Cr.P.C. lays down that if the Magistrate considers the
charge against the accused to be groundless, he shall discharge the accused.
The word “groundless”, in our opinion, means that there must be no ground
for presuming that the accused has committed the offence. The word
“groundless” used in Section 239 of Cr.P.C. means that the material placed
before the court do not make out or are not sufficient to make out a prima facie
case against the accused.
6. Considering these guidelines, the provisions of Sections 239 and 245(2) of
Code of Criminal Procedure, on the basis of material produced in the charge sheet
after investigation it can be easily inferred that charge is groundless. Accused is bound
to be discharged. There is no point in keep the matter pending further, accordingly
following order -
Page - 2/3
-- 2 of 3 --
C. C. No. 1850 PW 2023 State Vs Habib
CNR-MHMM18-008207-2023
ORDER
a. Accused is discharged under Section 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.
Sd/-
MUMBAI (KOMALSING RAJPUT)
DATE – 19.12.2023 M.M., 12TH COURT, BANDRA, MUMBAI
Page - 3/3
-- 3 of 3 --