Interim Order 1

Order Details: Order
Pdf Text: C. C. No. 2998 / PS / 2018.
ORDER BELOW EXH. 2
(Passed on 06.01.2021)
Through this application, the accused namely Anderson Mark
Richard, Senior Executive as well Regional Approval Manager Asia
Pacific with OPITO, has sought discharge from this case from the
offences under section 6 of Indian Wireless Telegraphy Act, 1933
read with section 20 of Indian Telegraph Act, 1885. The basic
contention of accused claiming discharge is on the basis of offences
being non-cognizable and inability of Investigating Officer to
investigate without permission of Court. The accused has placed
his reliance on the cases of – Keshavlal Thakur Vs. State of Bihar,
reported in 1996 (11) SCC 557 and Divyang R. Parikh Vs. State of
Gujarat reported in 1997 (3) JLR 2295 and other ratios in support
of this application. He has also pointed out that there is no prima
facie case against accused, therefore, he be discharged under
section 239 of Criminal Procedure Code. In support of this
application, the accused has furnished various documents
belonging to record.
2 The response of prosecution came to be called which has
opposed this application contending that prima facie case has been
made out against the accused. The prosecution has requested for
rejection of this application.
3 I have heard the Ld. Advocate for accused and Ld. APP for
the State at length. I have perused the charge-sheet.
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4 At the very outset, I would like to state that this case is a
summary proceeding for alleged offences, therefore, provisions of
discharge under section 239 of Cr. P. C. are not applicable to this
proceeding being summary in nature. No doubt, the offences are
non cognizable and it was duty of the concerned Police to obtain
prior permission from the Court prior of investigation. Though it is
the position, however, charge-sheet came to be filed and the Ld.
Predecessor of this Court has taken cognizance of the offences on
29.10.2018 and issued summons to the accused. At this stage of
the case, law do not permits this Court to discharge the accused or
to recall the summons. In regard of similar cases, it is held by
Hon’ble Apex Court in case of - Adalatprasad Vs. Roopal Jindal,
reported in AIR 2004 SC 4674 that after taking cognizance of the
offence, the Court cannot recall the said order of cognizance in
absence of any review power or inherent power with the sub-
ordinate criminal Courts. The only remedy lies is invoking inherent
power under section 482 of Cr. P. C. Keeping in view the settled
legal position, though there is infirmity in process of investigation,
this Court cannot discharge the accused from the alleged offences.
The accused must stand and face the trial. With this I am satisfied
to reject this application through following order -
O R D E R
The application for discharge filed by the
accused Anderson Mark Richard, stands rejected.
Dt. 06.01.2021. (R. R. Khan)
Metropolitan Magistrate,
10th Court, Andheri, Mumbai.
I/C of ACMM, 22nd Court.
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