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TMI Blog2012 (12) TMI 513X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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. - Crl.R.C.(MD) No.568 of 2012 - - - Dated:- 27-11-2012 - MR. M. VENUGOPAL J. For Petitioner ... Mr. C. Arul Vadivel alias Sekar Special Public Prosecutor for Customs For Respondent ... Mr. P. Ganapathi Subramanian ORDER The Revision Petitioner/Complainant has preferred the instant Criminal Revision Petition as against the order dated 22.04.2010, passed in C.C.No.1228 of 1992 by the learned Judicial Magistrate No.1, Trichy in discharging the Petitioner/Accused from the main case under Section 245(2) of Cr.P.C. 2. The Learned Judicial Magistrate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10, on the side of the Complainant one Mr.V.Saminathan, Superintendent of Customs (Department representative) appeared before the trial Court. But the Learned Special Public Prosecutor for the Complainant has not been present. The case has been since adjourned to 19.04.2010. On 19.04.2010, there has been no representation on the side of the Complainant before the trial Court either in person or through the Learned Special Public Prosecutor appearing for the Department. Later, on 19.04.2010, based on the submission made by the Respondent/ Accused side, the trial Court has reserved orders and on 22.04.2010, it passed the order discharging Accused from the main case. 6. The Learned Special Public Prosecutor for the Petitioner/Complainant submits that the Learned Judicial Magistrate is empowered in Law to discharge the Accused as per Section 245(2) of Cr.P.C. only if he has come to the conclusion that the charges against the Respondent/Accused are groundless. Further, in the present case, the complaint has been filed by the Revision Petitioner/Complainant under Section 135(1)(9)(i) of the Customs Act, 1962 and there are sufficient and adequate materials including the statements rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed at any previous stage of the case, if for reasons to be recorded by such Magistrate, he considers the charge to be groundless." 11. 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 as per the decision of the Hon'ble Supreme Court in State of Bihar v. Baitnath Prasad reported in AIR 2002 SC 64. 12. In the instant case on hand the Complainant/Prosecution has not expressed or indicated its inability to examine any witness on their behalf to prove the offence alleged against the Respondent/Accused. Unless the Prosecution/ Complainant has expressed its inability to examine any witnesses or any other witnesses, there is no propriety or valid justification on the part of the Learned Judicial Magistrate No.1, Trichy to pass an order of discharge. It is true that Sub-Section 2 of Section 245 of Cr.P.C. gives amble jurisdiction to the Magistrate to discharge in the circumstances mentioned therein and particularly when the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to point out that when an accused has been discharged for the absence of the Complainant on the date of hearing, it is competent for the Magistrate to entertain a second Complaint on the same facts from the same Complainant, as per the decision Amanat Kadar, 1928 31 Bom LR at 146. Also that an order of discharge without going into the merits of the case in law does not bar finality of the fresh Complaint as opined by this Court. 18. Also this Court aptly points out the decision Krishna Mondal v. Anjali Mondal reported in 1996 Crl.LJ 3134 (Calcutta - DB), wherein it is observed that where the delay in trial is on the part of Presiding Judge of the Court, the Accused is not entitled to be discharged. The Accused may be discharged when the Complainant fails to produce his witness and wilfully prolongs the case as per the decision Nabaghan v. Brundaban reported in 1989 Crl.LJ 381 (Orissa). 19. It is not obligatory to discharge the accused in the absence of Complainant as per the decision Md. Azam v. Emperor reported in AIR 1926 Bom 178. 20. As far as the present case is concerned, the examination of the evidence of witnesses in the trial of the main case has not commenced ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e interest of justice and this Court unhesitatingly sets aside the same to prevent an aberration of justice. Consequently, the Criminal Revision Petition succeeds. 22. In the result, the Criminal Revision Case is allowed. Resultantly, the order passed by the learned Judicial Magistrate in discharging the Respondent/Accused from the main case in C.C.No.1228 of 1992 is hereby set aside for the reasons assigned by this Court in this Revision. 23. Further, the Learned Judicial Magistrate No.1, Trichy is directed to restore C.C.No.1228 of 1992 to its file and in view of the fact that the matter is pending for a long time ever since October, 1992 and taken on file on 01.12.1992, this Court directs the Petitioner/Complainant to produce its side of witnesses to substantiate the case before the trial Court and in this regard this Court determines a time limit of four months from the date of receipt of a copy of this order. The trial Court is directed to dispose of the case in C.C.No.1228 of 1992 within the time determined by this Court and to report compliance without fail. 24. Since the Calender Case is of the year 1992, both parties are directed to lend helping hand in regard to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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