Final Order 1

Order Details: Order
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IN THE COURT OF THE JUDICIAL MAGISTRATE (FIRST CLASS)
10TH COURT, ANDHERI, MUMBAI.
C. C. No. 1321/PW/2018
(C.R.No. 50/2016)
Chargesheet was presented against accused under Section
3, 25 Arms Act. It is the case of prosecution that accused was found in
possession of one black colour pistol alongwith magazine and five live
carriages. The accused could not be traced despite issuing of
proclamation.
2. Heard the Ld. APP for State and perused the documents.
3. On perusal of case papers it appears that the crime pertains
to year 2016. Record shows that the prior sanction u/Sec. 39 of the
Arms Act for the prosecution from the Deputy Commissioner of Police,
Greater Bombay was not obtained while presenting charge-sheet.
Therefore, even if the presence of accused is secured, the prosecution
does not have any evidence to sustain charge of committing offence
under Section 3, 25 Arms Act. In such circumstances, if at all the
presence of accused is secured in near future, they could not be
convicted in absence of any material evidence on record. Neither of the
charge for any penal offence could be substantiated against them. In
this background in my view even if the case is kept pending, conviction
of accused will not warranted on the basis of available evidence. In this
scenario, I am taking support of following case law -
a)
The Hon'ble Karnataka High Court in the
case of State Vrs. P.P. Miltan, 1994 (4) KarLJ 588 held,
“The facts of this case however, indicate that the learned
Magistrate has given sufficient time to produce the
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accused and has also taken appropriate steps against the
surety to secure the presence of accused. It is on record,
through a report from the police, that the accused is not
traceable and his where about are not known. In these
circumstances, to my mind, the trial Court was no longer
obliged to wait or to keep the proceedings pending in the
hope that at some future point of tie, the accused would
be traced. Considering the nature of the offence and
consequently after having made reasonable efforts if the
accused is not traceable, the correct procedure is to closed
the matter. The action taken indicates that the trial court
has taken necessary steps to try and secure the presence
of the accused. Having regard to the arrears of cases and
the pressure on Judicial Time, to my mind, the trial Court
was fully justified in continuing with the proceedings.
After a reasonable period of time thereafter is no Special
obligation to keep the same pending indefinitely.
b) The Madras High court in case of The State (Tamil
Nadu) Vs. Veerappan And Ors AIR 1980 Mad 260 held, “if
the presence of the witnesses could not be secured and
the prosecution also either on account of pronounce
negligence or recalcitrace does not produce the witnesses
after the Court had given it sufficient time and
opportunities to do so, then the Court, being left with no
other alternative would be justified in acquitting the
accused for want of evidence to prove the prosecution
case, under section 248, Cr. P. C. in the case of warrant
cases instituted on a police report and under section 255
(1), Cr.P.C. in summons cases”.
4. Hence, considering all the circumstances, facts and
observation of Hon'ble High Court, it is not expedient to kept the matter
pending any more. The case is more than 7 years old and is pending
since long. The warrant report shows that, the whereabouts of the
accused are not known since long. The Hon'ble High Court vide
“Revised Action Plan” to achieve Plus Zero pendency has given specific
direction to clear the pendency of more than 10 to 40 years old cases.
Therefore, the present case being more than 7 years old, the preference
is given to the present case. Therefore, in my view no purpose would
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suffice by keeping the case pending on the board. Accordingly, I proceed
to pass the following order :
ORDER
1. Accused Aasif Ahmed Riyaz Ahmed Shaikh is
discharged from the offence punishable under
Section 3, 25 Arms Act vide Section 239 of the Code
of Criminal Procedure, 1973.
2. Seized pistol and five live carriages be sent to the
District Magistrate for it's disposal according to law
after appeal period is over.
3. Seized pulsar be returned to its registered owner if
yet not returned and seized Adhar card and ATM
card be returned to its owner after due
identification and verification if yet not returned
after appeal period is over.
4. Case is disposed of.
Sd/-
Date : 13/03/2026
(S.G. Agrawal)
Judicial Magistrate (F.C.),
10th Court Andheri Mumbai.
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