GIRISH S. JHAVARI Vs. SDBODH CHANDRA DUTTA

JUDGEMENT

(1.) On a complaint filed by an Assistant Collector of Customs the petitioner was placed on trial before a learned Metropolitan Magistrate, Calcutta for offences punishable under Sec. 135(1)(b)(ii) of the Customs Act, 1962 and Sec. 85(a)(ii)(iii) of the Gold (Control) Act, 1968. No November 16, 1989, a date fixed for prosecution evidence nobody appeared on behalf of the prosecution nor was any witness present. In such circumstances, the learned Magistrate discharged the accused from his bail bond with a direction to appear on call. After the above order was passed, the learned Prosecutor appeared and filed a petition for recalling the earlier order. The learned Magistrate allowed the petition and issued summons to the petitioner to appear on February 16, 1990. Aggrieved thereby the petitioner has filed this revisional application.

(2.) An order discharging the accused can be made under Sec. 249 of the Code of Criminal Procedure for absence of the complainant in a non -cognizable case. In the instant case, when the learned Magistrate decided to discharge the accused for absence of the complainant, it amounted to discharge from the case and as such he could not direct him to appear on call nor could he reopen the case on the prayer of the prosecution. In other words, unless the order of discharge passed by the learned Magistrate was set aside by a superior Court, he had no jurisdiction to reopen the case at the instance of the prosecution. On this score alone and without going into the other contentions raised on behalf of the petitioner, I set aside the impugned order, whereby the learned Magistrate reopened the case.