The Magistrate has the discretion to discharge the accused when the complainant is absent, and it is not obligatory for the Judicial Magistrate to dismiss the complaint on account of non-appearance of the complainant under Section 249 of the Code.

Satish Kumar Mittal, J. - The petitioners-accused have filed the instant criminal revision under Section 401 read with Section 482 of the Code of Criminal Procedure (hereinafter referred to as the Code) for quashing the order dated 22.12.1999, passed by Special Railway Magistrate, Ambala Cantt. dismissing their two applications for dismissing the complaint filed by Inspector Incharge Railway Protection Force Post, Ambala Cantt under Section 3 of the Railway Property (Unlawful Possession) Act, 1966 (hereinafter referred to as the Act) on account of non-appearance of the complainant.

2. On 16.6.1997, the Inspector Incharge Railway Protection Force Post, Ambala Cantt, through Public Prosecutor, filed a complaint under Section 3 of the Act against the petitioners. On 4.2.1998 and 10.3.1999, the petitioners moved two separate applications submitting that the complainant remained absent without seeking exemption from the Court and since the offence under Section 3 of the Act is non-cognizable and non-compoundable offence, therefore, the complaint is liable to be dismissed in view of the provisions contained in Section 249 of the Code. In support of this submission, learned counsel for the petitioners relief upon a decision of the Rajasthan High Court in Mukna Ram and others v. The State and another, 1998 Crl.L.J. 1882. His contention was that the complaint under Section 3 of the Act is just like a private complaint and since this offence is non-cognizable and non-compoundable, therefore, provisions of Section 249 of the Code would apply. In these circumstances, learned counsel for the petitioners, while appearing before the learned trial Court, contended that if the complainant did not appear on the date fixed, the complaint is liable to be dismissed and the petitioners-accused are entitled for discharge.

3. The trial Court, vide impugned order dated 22.12.1999, dismissed both the applications, while observing that though the offence under Section 3 of the Act is non-compoundable and non-cognizable and that the complaint filed by the Inspector under the Act was instituted otherwise than on police report, but it cannot be termed as private complaint. It was further observed that in the complaint itself a request was made by the complainant for exemption from personal appearance and to allow the complaint to continue through Public Prosecutor. Though no order was passed on the said prayer, but that does not mean that it was declined. It was further held that the applications were not filed on the date when the complainant was absent. It was also observed that a large number of complaints are filed by the Railway Protection Force officials against the accused and in case they have to appear on each and every date of hearing in the Court, it would cause great hardship in performance of their duties. They are being represented in all cases by the Public Prosecutor. It was further observed that if the provisions of Section 249 of the Code are applicable, even then a discretion has been given to the Court to discharge or not to discharge the accused, therefore, the trial Court is not bound to dismiss the complaint on account of absence of the complainant.

4. Against the said order, the instant revision petition has been filed.

5. Counsel for the petitioners submitted that in a complaint filed under Section 3 of the Act, the provisions of Section 249 of the Code are applicable. The offence under Section 3 of the Act is non-compoundable and non-cognizable. He further submitted that the said complaint was filed by the Inspector Incharge Railway Protection Force and the same cannot be treated a case on police report as the officer of the Railway Protection Force, who filed complaint under Section 3 of the Act, is not a police officer. Learned counsel for the petitioners further submitted that though the word "may" has been used in Section 249 of the Code, but the Magistrate has no discretion or option but to dismiss the complaint in th