2012 (12) TMI 513 - HC - Customs

Complaint has been filed by the Revision Petitioner/Complainant under Section 135(1)(9)(i) of the Customs Act, 1962 - held that - A reading of the ingredients of Sub Section 2 of Section 245 of Cr.P.C. clearly shows that the Learned Judicial Magistrate is not clothed with an arbitrary power of discharge. As a matter of fact, there ought to be a ground or material on record to come to any favourable conclusion that no offence has been made. On going through the order of discharge passed by the trial Court in C.C.No.1228 of 1992 under Section 245 Cr.P.C., this Court is of the considered view that even though it has been observed in the order that for nearly 18 years no progress has taken place in the main case, inspite of numerous notices sent and also that the Petitioner/Complainant has not appeared before the Court and also not produced witnesses, this Court has to bear in mind an important fact that even though the complaint in question has been filed by the Complainant/Petitioner on 27.10.1992 and taken on file by the trial Court on 01.12.1992, for nearly 52 hearings or for nearly 19 years, the Respondent/ Accused has absconded and in any event, the order of discharge passed by the trial Court is only an automatic or a routine one and further, the said order of discharge passed by the trial Court is not a Judicious one considering the gravity of offence alleged. Moreover, when the offence alleged against the Respondent/Accused under Section 135(1)(a) of the Customs Act is of serious nature, then, the non-appearance of the Complainant/ Petitioner (Economic offence - cognizable and non-compoundable) for one or two days, may not matter much. - Decided against the accused / assessee.

Summary

Issues Involved:
1. Legitimacy of the discharge order under Section 245(2) of Cr.P.C.
2. Applicability of Section 249 of Cr.P.C. for discharge due to complainant's absence.
3. Adequacy of evidence and materials for prosecution under Section 135(1)(a) of the Customs Act, 1962.
4. Judicial discretion in discharging the accused.

Issue-wise Detailed Analysis:

1. Legitimacy of the discharge order under Section 245(2) of Cr.P.C.:
The core issue revolves around whether the Judicial Magistrate No.1, Trichy, was correct in discharging the accused under Section 245(2) of Cr.P.C. The court observed that the discharge was based on the complainant's non-appearance and lack of witness production for 18 years. The Special Public Prosecutor contested that the Magistrate erred in discharging the accused without considering the sufficiency of materials and statements recorded under Section 108 of the Customs Act. The judgment emphasized that Section 245(2) allows discharge only if the charges are groundless, which was not the case here. The court concluded that the discharge under Section 245(2) was "per se illegal."

2. Applicability of Section 249 of Cr.P.C. for discharge due to complainant's absence:
The petitioner argued that the correct provision for discharge due to the complainant's absence is Section 249 of Cr.P.C., not Section 245(2). The court noted that Section 249 allows for discharge when the complainant is absent, but it is not an automatic or routine action. The Magistrate must exercise judicious discretion. The court found that the Magistrate did not properly apply this discretion and that the absence of the complainant on one or two occasions should not have led to the discharge of the accused, especially given the serious nature of the offense.

3. Adequacy of evidence and materials for prosecution under Section 135(1)(a) of the Customs Act, 1962:
The court highlighted that the complaint included sufficient materials and statements under Section 108 of the Customs Act to substantiate the charges. The offense involved smuggling 2,443.600 grams of gold, a serious crime under the Customs Act. The court stressed that the absence of the complainant should not overshadow the gravity of the offense and the adequacy of the evidence presented.

4. Judicial discretion in discharging the accused:
The judgment underscored that the Magistrate's discretion in discharging an accused must be exercised judiciously and not in an arbitrary or capricious manner. The court referenced several precedents, including the Supreme Court's decision in State of Bihar v. Baitnath Prasad, which mandates that there must be substantial grounds or materials to justify a discharge. The court criticized the Magistrate's order as lacking in judiciousness and being routine or automatic, which was inappropriate given the serious nature of the offense.

Conclusion:
The court set aside the discharge order, directing the trial court to restore the case and proceed with the trial. The complainant was instructed to produce witnesses within four months, and the trial court was ordered to dispose of the case promptly. The judgment emphasized the need for both parties to assist in the timely completion of the proceedings.