Final Order 1

Order Details: Order
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C.C. NO.598/PW/2018
ORDER ON DISCHARGE APPLICATION FOR ACCUSED
The application is moved by the accused under Section 239
of Cr. P.C. It is contention of the accused that C.R. No.264/2017 is
registered against him by Amboli Police Station. It is the prosecution
case that the complainant Aditi Neelaabh Kapoor allege that on
0/08/2017 she returned home at 1.30 a.m. along with her two children
and sister Dalia. The complainant rang the door bell of her flat at about
2 a.m. and she asked the person who was under the influence of alcohol
was standing outside there. When she asked who is he and how he has
come up, the person replied that he needs water and was thirsty. She
asked him to go out. Thereafter, she telephoned the security guard. He
told the accused had parked the car behind her car. Thereafter she saw
the accused was sitting in a Honda City car and was smoking the
cigarette outside the society on the other side of road. She took the
number and told him that she is calling police number 100 so he left.
On the basis of this allegation of complainant, the accused came to be
arrested in this case for the offences under Section 354D and 452 of
Indian Penal Code.
2. The present application is filed by the accused on the
ground that according to complainant she found the accused under the
influence of alcohol. However, at no point of time accused had taken
the drink. Even he was not taken to the medical officer to examine the
same fact. The statement of complainant as well as their security guard
the accused has not entered the premises. Accused asked for water
being thirsty, he had no intention to commit any offence of causing hurt
or assault on the complainant or wrongfully restrain her. When the
security guard told the complainant about the alleged incident, he
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asked the accused to leave the premises and he left. The vehicle of the
accused had entered towards parking and no allegation of any hurt,
assault or wrongful restrain is alleged. As regards Section 354 D Indian
Penal Code, there is nothing in the statement of the first informant or
anybody that the accused followed the victim. The visit of the accused
to outside the house of the victim for the water only will not fall within
Section 354. The entire chargesheet does not disclose any offence
being committed by the accused. Therefore, he prayed to discharge
from the present prosecution.
3. On the contrary APP has objected the present application
by filing say on the application itself. The police has been filed charge
sheet after collection of sufficient evidence against accused. The case is
not groundless. Hence, this application is not tenable. There is prima
facie case against the accused. Hence, the present application is not
maintainable and hence APP has prayed to reject the application.
4. From the proceeding, no single piece of evidence against
the accused is found, so also, there is no direct evidence against the
accused. Therefore, whole statement of witnesses is considered, there is
no case is made out against the accused. Therefore, the prayer of the
accused to discharge him is appropriate and maintainable. Hence, I
pass the following order:
ORDER
1. The present application is allowed.
2. The accused is discharged from the present offence.
Sd/
(A. I. Shaikh)
Metropolitan Magistrate,
DATE: 14/05/2022 44th Court, Andheri, Mumbai.
spj
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