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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 ..... ith the case and further opined that the complaint has only been lodged against the Respondent/Accused by the Petitioner/Complainant and on behalf of the Complainant no witnesses have been examined in order to prove the charges levelled against the Respondent/Accused and consequently discharged the accused from the main case as per Section 245(2) Cr.P.C. 3. The Learned Special Public Prosecutor for the Petitioner/Complainant submits that the Learned Judicial Magistrate No.1, Trichy has committed an error in discharging the Respondent/Accused from the main case in C.C.No.1228 of 1992 by passing an incorrect order dated 22.04.2010. 4. Advancing his arguments, it is the contention of the Learned Special Public Prosecutor for the Petitioner/Complainant (Department) that the Respondent/Accused has been absconding for 18 years and added further that for 52 hearing have not appeared before the trial Court. Furthermore, the Petitioner/Complainant filed the complaint against the Respondent/Accused under Section 190(1) read with proviso 200(a) of the Criminal Procedure Code, 1973 and under Section 135(1)(a)(i) of the Customs Act, 1962 read with Section 13(1) of the Foreign Exchange Regulat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Learned Judicial Magistrate to discharge the Respondent/Accused for the absence of the complainant on the date of hearing. However, the learned Judicial Magistrate has passed an incorrect order, discharging the respondent/accused as per Section 245(2) Cr.P.C. for the non-appearance of the complainant 8. Yet another contention advanced on behalf of the Petitioner/Complainant is that the offence alleged against the Respondent/Accused is a non-compoundable one as well a cognizable one and in any event the Respondent/Accused cannot be discharged under Section 249 of Cr.P.C. 9. Apart from the above, it is the stand of the Petitioner/Complainant that the Respondent/Accused smuggled 2,443.600 grams of gold from Abudhabi to Trichy, which is a serious offence punishable under the Customs Act, 1962. The said act of the Respondent/Accused is a Crime against society. 10. At this juncture, this Court makes an useful reference to Section 135(1)(a) of the Customs Act, which runs as follows: "135. Evasion of duty or prohibition.- (1) Without prejudice to any action that may be taken under this Act, if any person - (a) is in relation to any goods in any way knowingly concerne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... but just because of the absence of the complainant at the time of hearing of the case. Therefore, such an order is not a judgment in the eye of Law. 14. It can not be gainsaid that the discretionary power vested on the Learned Magistrate in passing an order under Section 249 of Cr.P.C. based on absence of the complainant is a judicious discretion to be exercised by him and the same cannot be exercised that too in a capricious or arbitrary fashion or it to be adopted or done automatically as a matter of routine or in a short cut manner. To put it succinctly, he cannot pass an order of discharge automatically and even the power of the Magistrate to acquit the accused, for non-appearance of the complainant is not an absolute one. Per contra, the said order is to be passed by him in a judicious manner based on well-established and sound principles of Law. When the default in appearance of the Petitioner/Complainant is casual or accidental, then the Learned Judicial Magistrate in Law is not bound to discharge the accused though he has different view in the matter. 15. A cursory reading of the ingredients of Section 249 of Cr.P.C. clearly points out the words 'Magistrate may in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spondent /Complainant under Section 135(1)(a) of the Customs Act is admittedly a cognizable one and non-compoundable too. A punishment upto seven years is prescribed under the Act. In our processual system of Criminal Jurisprudence, undoubtedly, the Complainant and its counsel have to appear before the trial Court when the case comes up for hearing on a specified date. 21. 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, t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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