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Report No. 233

1.2 The relevant provisions of the CrPC are:

(i) Section 249 relating to warrant-case.-

"Absence of complainant.- 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."

(ii) Section 256 relating to summons-case.-

"Non-appearance or death of complainant.- (1) If the summons has been issued on complaint, and on the day appointed for the 8appearance of the accused, or any day subsequent thereto, to which the hearing may be adjourned, the complainant does not appear, the Magistrate shall, notwithstanding anything hereinbefore contained, acquit the accused, unless for some reason he thinks it proper to adjourn the hearing of the case to some other day:

Provided that where the complainant is represented by a pleader or by the officer conducting the prosecution or where the Magistrate is of opinion that the personal attendance of the complainant is not necessary, the Magistrate may dispense with his attendance and proceed with the case.

(2) The provisions of sub-section (1) shall, so far as may be, apply also to cases where non-appearance of the complainant is due to his death."

1.3 Section 249 will not apply to a case in which the Magistrate tries an accused for offences that are non-compoundable and cognizable. This section applies only to offences that may be lawfully compounded or are non-cognizable. Therefore, the Magistrate has no discretion to discharge an accused when the offences are of serious nature.

Chapter XIX of the CrPC containing the procedure for trial of warrant-cases by Magistrates prescribes two procedures, one for trial of cases instituted on police reports and the other for trial of cases instituted on private complaints. The law-makers have excluded non-compoundable and cognizable offences from the purview of section 249 because for more serious offences, the police, generally, file charge-sheets.

1.4 With regard to offences that are compoundable and non-cognizable where discretion is given to the Magistrate to discharge the accused for the 9absence of complainant, the Magistrate may be vested with the power to restore the complaint on file if sufficient cause is shown by the complainant for his absence on the date of hearing.

1.5 There may be several reasons for the absence of complainant on the date of hearing. One most important cause may be total bandh call given by the political parties or hartal where transport is suspended completely, both public and private. This is a genuine cause for absence of complainant from appearing before court. Complainant on his way to court may suffer severe setback necessitating hospitalization. He may suffer (a) heartache, (b) high BP, (c) low sugar leading to coma or (d) vertigo, etc. Death of a close relation may be another sufficient cause.

1.6 So in each case if the complainant shows sufficient cause for his absence, the Magistrate may restore his complaint on file. The period may be 15 days or 30 days from the date of discharge of the accused for moving the application.

1.7 With regard to trial of summons-cases, under section 256, the Magistrate shall acquit the accused if the complainant does not appear on the date of hearing. The proviso to section 256 says that where the complainant is represented by a pleader or by the officer conducting the prosecution or where the Magistrate is of the opinion that the personal attendance of the complainant is not necessary, the Magistrate may dispense with his attendance and proceed with the case.

Here also there may be sufficient reasons for the absence of complainant, examples of which have been given in the earlier paragraphs. Under section 256, a sub-section may be added to the effect that if the complainant shows sufficient cause for his absence on the date of hearing, the Magistrate may restore the complaint on 10file provided the application is filed within 15 days or 30 days from the date of acquittal of the accused.



Amendment of Code of Criminal Procedure enabling restoration of Complaints Back




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