The Magistrate has discretion to dismiss a complaint under Section 249 of the Code of Criminal Procedure, 1973, and the word "may" in the section does not mean "must".

( 1 ) THIS is criminal revision, preferred under Section 397, read with Section 482 of the Code of Criminal Procedure, directed against the order dated 2/01/1997, passed by Shri Naresh Jain, I Additional Chief Judicial Magistrate, Saharanpur, rejecting the petitioners applications for dismissal of the complaint under Section 249 of the Code of Criminal Procedure, 1973.

( 2 ) I have heard the learned counsel for the revisionists, Shri K. S. Jetley, and learned counsel for the respondent No. 2 Shri B. B. Paul, and the learned Additional Government Advocate.

( 3 ) SHRI Surinder Pal Jetley in collusion with the other revisionist Shri Ishwar Saran Shukla, posted as Assistant Guard in the Railway, in the intervening night of 11/ 12/09/1989 removed 26 sarees from 31 Up Frontier Mail on way from New Delhi to Ambala. Further, 77 sarees were recovered from the possession of the accused Ishwar Saran Shukla. Accordingly, a complaint by Shri L. P. Singh, Inspector, R. P. F. under Section 3 of the Railway Property (Unlawful Possession) Act, 1966, was lodged on 31-10-1989 before the learned Additional Chief Judicial Magistrate, Saharanpur. During the hearing of the case, the complainant and the public prosecutor appearing on behalf of the prosecution, defaulted in appearance on 18/01/199 6/07/1996 and 2/01/1997. The accused persons, therefore, moved application for dismissal of the complaint in view of the provisions of Section 249, Cr. P. C. Further, the accused moved application for dropping of the case against them, in view of the decision of the Honble Supreme Court in Common Cause, a Registered Society v. Union of India, reported in AIR 1996 SC 1619. The learned Additional Chief Judicial Magistrate has rejected the petitions moved by the accused persons, hence the present revision.

( 4 ) FOR disposal of the controversy involved in the case, it is apposite "to reproduce" Section 249 of the Code of Criminal Procedure, which runs as follows :"249. When the proceedings have been instituted upon complaint, and on any day fixed for the hearing of the case, the complainant is absent, and the offence may be lawfully compounded of is not a cognizable offence, the Magistrate may, in his discretion, notwithstanding anything hereinbefore contained, at any time before the charge has been framed, discharge the accused. "

( 5 ) BIFURCATION of the aforesaid Section 249, Cr. P. C. shows that the following conditions have to be satisfied before an accused can claim the benefit of the Section :- (I) The proceedings must have been instituted upon a complaint. (ii) The complainant fails to appear. (iii) The offence to which the proceedings relate, can be lawfully compounded or is not cognizable by the police. (iv) Stage of passing of order of the discharge must arise prior to a charge having been framed against the accused.

( 6 ) THE present case has been instituted upon a complaint, the complainant has failed to appear on three dates mentioned above, the case is not a cognizable one (vide Section 5 of the Railway Property (Unlawful Possession) Act, 1966) and the charge has not yet been framed in the case. However, the word "may" has been used in the Section, the learned Additional Chief Judicial Magistrate has exercised his jurisdiction in not discharging the accused, observing that Section 249 vests discretion in the Court, it is not incumbent upon the Court to discharge the accused in each and every case. The learned counsel for the revisionists urged that once the essential conditions of Section 249 are satisfied in the case, it is incumbent upon the Court to discharge the accused. The learned counsel relied upon the decisions of Honble Supreme Court in State of Uttar Pradesh v. Jogendra Singh, reported in AIR 1963 SC 1618 (Para 8), Ramji Missar v. State of Bihar, reported in AIR 1963 SC 1088 : (1963 (2) Cri LJ 173) (Para 16), A. G. Aggarwal, Sub-Divisional Magistrate, Delhi v. Ram Kali, reported in AIR 1968 SC 1 : (1968 Cri LJ 82) (Par