Madras High Court
The Assistant Commissioner Of Customs vs M.Ahamed Hussain on 27 November, 2012
Author: M.Venugopal
Bench: M.Venugopal
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 27/11/2012 CORAM THE HONOURABLE MR.JUSTICE M.VENUGOPAL Crl.R.C.(MD) No.568 of 2012 The Assistant Commissioner of Customs, Customs Division, Trichy. . . . Petitioner/Complainant Vs. M.Ahamed Hussain . . . Respondent/Accused Criminal Revision Case is filed under Sections 397 and 401 of Cr.P.C praying to set aside the order dated 22.04.2010 in C.C.No.1228 of 1992 passed by the learned Judicial Magistrate No.1, Trichy. !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 No.1, Trichy while passing the orders in C.C.No.1228 of 1992 on 22.04.2010 has among other things observed that the present case has been filed against the Respondent/ Accused in the year 1992 and from that year onwards the said case is pending for 18 years without any progress and inspite of numerous notices sent, the Complainant has not appeared before the Court and also have not produced witnesses, which only exhibits that the Complainant is not interested to proceed with 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 Regulations Act, 1973 as made applicable to Customs cases under Section 67 IBID read with 120 of the Indian Penal Code on 27.10.1992 and that the said complaint had been taken on file by the trial Court on 01.12.1992.
5. The Learned Special Public Prosecutor for the Petitioner/Complainant brings it to the notice of the Court that the Respondent/Accused surrendered before the trial Court on 30.06.2009 and on that day Non-Bailable Warrant has been recalled by the trial Court. Also that, the Respondent/Accused has not appeared before the trial Court on 09.12.2009 and 11.01.2010 and filed a petition under Section 317 of Cr.P.C. to dispense with the appearance and the same has been allowed by the trial Court. On 05.04.2010, 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 recorded under Section 108 of the customs Act have been produced before the trial Court. As such invocation of Section 245(2) of Cr.P.C. by the Learned Judicial Magistrate No.1, Trichy in discharging the Respondent/Accused on 22.04.2010 in C.C.No.1228 of 1992 per se is illegal.
7. Drawing the attention of this Court, it is the submission of the Learned Special Public Prosecutor for the Petitioner/Complainant that Section 249 of Cr.P.C. is the only provision, which enjoins 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 concerned in misdeclaration of value or in any fraudulent evasion or attempt at evasion of any duty chargeable thereon or of any prohibition for the time being imposed under this Act or any other law for the time being in force with respect to such goods;"
Also, this Court quotes the Section 245 of Cr.P.C., which runs hereunder:
"245. When accused shall be discharged. - (1) If, upon taking all the evidence referred to in section 244, the Magistrate considers, for reasons to be recorded, that no case against the accused has been made out which, if unrebutted, would warrant his conviction, the Magistrate shall discharge him. (2) Nothing in this section shall be deemed to prevent a Magistrate from discharging the accused 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 order of discharge may be passed at any previous stage of the case. Even the Magistrate concerned can make order of discharge without recording the prosecution evidence.
13. Coming to the ingredients of Section 249 of Cr.P.C., it is to be pointed out that when a Learned Magistrate discharges an Accused under this Section owning to absence of the complainant, he does not apply his mind to the evidence in the case. The order is passed not on the merits of the matter, 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 his discretion' are not mandatory in character. Instead, they are directory as opined by this Court.
16. If the absence of Complainant is due to a reasonable cause, then the Learned Magistrate should not discharge the Accused as opined by this Court. Further, the discretion as per Section 249 of Cr.P.C. to be exercised by the learned Judicial Magistrate ought not to be made in a capricious manner. As a matter of fact, the order of discharge should not be passed by the Learned Magistrate as a matter of routine or automatic just because the complainant has remained absent. Indeed, Section 249 of Cr.P.C. will apply in respect of cases initially based on private complaints.
17. At this stage, this Court deems it proper 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 for nearly 18 years. The Respondent/Accused has been absconding and for 52 hearing not attended the proceedings before the trial Court. At the risk of repetition, it is to be pointed out that only on 30.06.2009, the Respondent/Accused has surrendered before the trial Court and only on 30.06.2009, the Respondent/Accused has surrendered before the trial Court and only on that day, the Non-Bailable Warrant has been recalled. The offence alleged against the Respondent /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, 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. Therefore, this Court in the interest of justice Fair play Equity and even as a matter of prudence and also bearing in mind cumulative of the facts and circumstances of the attendant case in an integral fashion holds that the order of discharge passed by the Learned Judicial Magistrate No.1, Trichy in C.C.No.1228 of 1992 is not in the 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 the completion of the proceedings and further, the trial Court is directed to provide adequate opportunities to the parties while disposing of the main case within the time determined by this Court.
sj To
1.The Judicial Magistrate No.I, Trichy.
2.The Assistant Commissioner of Customs, Customs Division, Trichy.
3.The Special Prosecutor, Customs Case, Madurai.