Satish Kumar Mittal, J.

1. 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 In charge Railway Protection Force Post, Ambala Cantt under Section 3 of the Railway Property (Unlawful Possession) Act, 1966 (hereinafter referred to as the) on account of non-appearance of the complainant.

2. On 16.6.1997, the Inspector In charge Railway Protection Force Post, Ambala Cantt, through Public Prosecutor, filed a complaint under Section 3 of theagainst 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 theis 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 Cri.L.J. 1882. His contention was that the complaint under Section 3 of theis 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 22.12.1999, dismissed both the applications, while observing that though the offence under Section 3 of theis non-compoundable and non-cognizable and that the complaint filed by the Inspector under the 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 hardships 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 theis non-compoundable and non-cognizable. He further submitted that the said complaint was filed by the Inspector Incharge 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 the event the complainant is not present, when the case is called for hearing. He submitted that the use of word "may" in this Section by itself does not show that it is directory. This word has been used by legislation as a conventional courtesy and yet intend a mandatory force. In support of his contention, learned counsel for the petitioners relied upon Collector v. Habib-Ullah-Din and others, AIR 1967 J&K 44 [LQ/JKHC/1966/36] and A.C. Aggarwal, Sub-Divisional Magistrate, Delhi and another v. Mst. Ram Kali, etc., : AIR 1968 SC 1 [LQ/SC/1967/230] .

6. The learned counsel further submitted that when a prayer for exemption from personal appearance was made and the same was neither declined; nor the complaint was dismissed on account of absence of the complainant and the case was further proceeded, it does not amount to granting of "deemed exemption to the complainant". Thus, the applications filed by the petitioners should have been allowed and the complaint should, have been dismissed and consequently, the petitioners should have been discharged. Thus, the impugned order is liable to be set aside.

7. On the other hand, learned counsel for the respondent submitted that in the complaint itself it was submitted that the complaint was being filed on behalf of the Central Government and was not a private complaint, therefore, prayer for exemption from personal appearance of the complainant was made. He submitted that on each and every date of hearing, Public Prosecutor of the Central Government continuously appeared. Since the complainant has been represented through Public Prosecutor, therefore, it was totally immaterial whether the complainant was appearing or not on each and every date of hearing. Learned counsel submitted that even if Section 249 of the Code is applicable on the complaint filed under Section 3 of the Act, the Magistrate is not bound to dismiss the complaint on account of non-presence of the complainant on the date of hearing. Section 249 of the Code is a mere enabling provision vesting discretion with the trial Magistrate. The accused cannot, as a matter of right, claim discharge merely on the ground that the complainant has been absent, when the complainant is none other than an official of the Railway Protection Force. This Section gives power to the Magistrate and not to the accused to seek discharge. Learned counsel further submitted that under Section 249 of the Code, the Magistrate, who has been vested with the discretion to discharge an accused, has to exercise the discretion in accordance with the settled principles of law. The discretion to discharge an accused on the ground of non-appearance of the complainant can be exercised only when the Court considers the presence of the complainant as imperative/necessary for the trial. The Court is not bound to discharge the accused merely when the complainant is not present on the date of hearing. Learned counsel for the respondent submitted that since the trial Magistrate, in exercise of his discretion, has not dismissed the complaint, the said order cannot be interfered by this Court, in exercise of its inherent powers under Section 482 of the Code, as no injustice has been caused to the petitioner.

8. After hearing the arguments of learned counsel for the parties and perusing the record of the case, I do not find any merit in this petition.

9. In Balkishan A.Devidayal v. State of Maharashtra, : AIR 1981 SC 379 [LQ/SC/1980/300] , the Honble Apex Court held that an officer of Railway Protection Force making inquiry in respect of offence under Section 3 of theand filing complaint is not a Police Officer. Therefore, the complaint filed by the Inspector, Railway Protection Force is not a complaint on police report. There is also no dispute that the offence under Section 3 of theis non-compoundable and non-cognizable. Thus, the provisions of Section 249 of the Code will be applicable in case of a complaint filed under Section 3 of the. In Mukna Rams case (supra), the Rajasthan High Court has held as under: -

"Section 249 of the Cr.P.C. provides that when the proceedings have been instituted upon the complaint, and on any day fixed for the hearing of the case, the complainant is absent and the offence may be lawfully compounded or 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. A bare reading Of Section 249 Cr.P.C. shows that in order the Magistrate may discharge the accused persons under this Section, following conditions must be satisfied: (1) the case must be lawfully instituted in his Court and should be triable as a warrant case, (2) the case must be instituted upon a complaint, (3) that on the date of hearing the complainant must be absent, (4) the offence for which accused was to be tried must be either an offence compoundable according to law or a non-cognizable offence.

The offence under Section 3 of the Railway Property (Unlawful Possession) Act, 1966 is not a compoundable offence. But in view of Section 5 of thethe offence must be regarded as non-cognizable offence. Section 3 of the Railway Property (Unlawful Possession) Act, 1966 provides these "an offence under the is not to be cognizable notwithstanding anything contained in the Code of Criminal Procedure, 1898." Since the offence under Section 3 of the Railway Property Act, 1966 is a non-cognizable offence. The provisions of Section 249 of Cr.P.C. were applicable to the case and the learned Judicial Magistrate, Railways, Jodhpur, had legal authority to discharge the accused persons when the complainant did not appear on the date when the case was called for hearing. In this petition only legality of the order is to be seen; property of the order cannot be gone into because the State has not moved any petition to quash the order of discharge."

10. Even though the offence under Section 3 of theis non-compoundable, the provision of Section 249 of the Code is applicable, because for applicability of this provision, the offence should either be compoundable or non-cognizable. Out of two conditions, it one is satisfied, this provision would apply.

11. Now, the question which arises for consideration is whether it is obligatory on the Judicial Magistrate to dismiss the complaint fails to appear, when the case is called for hearing; and he has no discretion except to dismiss the complaint.

12. Section 249 of the Code provides as under:-

"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 or 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."

In the aforesaid provision, the Magistrate has been given a discretion to discharge the accused in the complaint before the charge has been framed, in case the complaint is not present at the time of hearing of the case. The contention of the petitioner that the Judicial Magistrate has no discretion and he has to dismiss the complaint and discharge the accused when the complainant is not present, cannot be accepted. The Rajasthan High Court in Mukna Rams case (supra) has not laid down that under Section 249 of the Code, the Magistrate has no discretion and he is bound to dismiss the complaint when the complainant is not present at the time of hearing of the case. In the said case, only it was held that provisions of Section 249 of the Code are not applicable in the proceedings initiated on the complaint filed under Section 3 of the Act, and the Magistrate is competent to dismiss the complaint filed under Section 3 of the Act, and the Magistrate is competent to dismiss the complaint on account of non-appearance of the complainant on the date of hearing. The judgment of the Honble Apex Court in A.C. Aggarwals case (supra) also does not lay down any such proposition. In the said case, it was held that under Section 190( 1 Xb) of the Code, the Magistrate is bound to take cognizance of any cognizable offence brought to his notice. The words "may take cognizance" in the context means "must take cognizance". He has no discretion in the matter. But the said observation is not applicable with respect to the provision under Section 249 of the Code, where it has been clearly mentioned that "the Magistrate has the discretion". Such discretion to discharge the accused on the ground of non-appearance of the complainant on the date of hearing can be exercised only when the Court considers the presence of the complainant imperative or necessary for the trial. In a situation when the presence of the complainant is not required, the Magistrate does not vest with the power to dismiss the complaint for non-prosecution or to discharge the accused. In this regard, reference can be made to the decision of the Apex Court in Associated Cement Co. Ltd. v. Keshvanand, : 1998(1) CCC 482 (S.C.): 1998( 1) SCC 687, wherein it was held that the Judicial Magistrate is not justified in acquitting the accused on the ground of nonappearance of the complainant at the time of hearing, unless his presence on that date is found necessary. The discretion to acquit the accused or proceed with the trial must be exercised judiciously and fairly. Thus, in my opinion, 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.

13. In the instant case, the Railway Magistrate has refused to exercise his discretion to dismiss the complaint on account of non-appearance of the complainant on certain dates of hearing by giving valid reasons i.e. a prayer was made in the complaint itself for granting exemption from personal appearance; a large number of complaints are being filed by officials of the Railway Protection Force and it would cause great hardship if they have to appear on each and every date of hearing in the Court, particularly when in all the cases, they are being represented by Public Prosecutor and that in the present case on all the dates, the complainant was being represented Assistant Public Prosecutor and on the dates when the complainant was being represented by Assistant Public Prosecutor and on the dates when the complainant was absent, no effective proceeding was to be taken.

14. In view of the aforesaid facts, in exercise of inherent powers of this Court under Section 482 of the Code, I do not find any reason to set aside the impugned order, whereby the Railway Magistrate has exercised his discretion. Consequently, the instant petition is dismissed.