Legal Provisions of Section 249 of Code of Criminal Procedure, 1973 (Cr.P.C.), India.
Absence of complainant:
This section applies to cases where the proceedings have been instituted upon complaint. Therefore, when proceedings are not instituted upon a complaint, the Magistrate cannot invoke the provisions of this section for discharging the accused on ground of absence of prosecution witness or the prosecutor on the date of hearing.
ADVERTISEMENTS:
The Magistrate is not bound to discharge the accused in the absence of the complainant on the date of hearing. The section only confers discretion on the Magistrate to discharge the accused if offence may be lawfully compounded or is not a cognizable offence. The discretion vested in the Magistrate should be exercised judicially and not arbitrarily.
Where the Magistrate has once dismissed the complaint in the absence of the complainant and ordered acquittal of the accused on the ground of non-appearance of the complainant, he has no jurisdiction to revive the dismissed complaint on a subsequent application of the complainant. The complainant may, however, file a second complaint on the same facts.
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In case of non-appearance of the complainant in a summons case, the provisions of Section 256 (infra) would apply.
ADVERTISEMENTS:
Where the accused were convicted in a case instituted by the complainant and during the pendency of appeal against his conviction, the complainant died, it was held that State should step into the shoes of the deceased complainant and pursue the case because there is no specific provision of law to cope up with the given situation where the complainant dies during the pendency of appeal filed by the convicted accused.
Even in defamation cases, where the complainant dies during the trial for defamation, it has been held that the Magistrate need not discharge the accused but continue with the trial, particularly, when defamation alleged is against the complainant in his public capacity.
