Accused – In any criminal case/trial, it is compulsory for the accused to be present on every date of hearing. If he is not present in the court when his case is called, the magistrate nowadays usually issue non-bailable warrants (NBWs) against him. It may so happen that the accused has come to the court but he is not present in the concerned court when his case is called by the court staff, may be on account of his waiting outside the court or gone for drinking the water.
Once an order has been passed by a judge in a criminal court rightly or wrongly, he can not change the same, as power of review is not available to a criminal court.
The option is to file an appeal against the said order. If NBWs have been issued, then the accused can move an application for cancellation of NBW, giving the reasons for his not appearing when his case was called. If satisfied, the Magistrate may cancel the NBWs. If the accused is not in a position to appear on a certain date, then he should move an application for exempting him from personal appearance on the date fixed.
The court, if satisfied, may allow such application and allow the accused to appear through his lawyer, instead of requiring him to appear in person. However, every time a new application for exemption has to be moved whenever the accused is not in a position for personally appearing.
However, if the Magistrate require the presence of the accused, he can direct the personal attendance of the accused at any stage.
Complainant – If the case has been instituted on the criminal complaint filed by a complainant and on the day fixed for the hearing of the case, he is absent, the magistrate may in his discretion dismiss the complaint and discharge the accused. However, before exercising this discretion, following -conditions must be satisfied –
(a) the offence is one which can be lawfully compounded or is a noncognizable offence
(b) Such an action can be taken by the magistrate at any time but before the charge has been framed This is the mandate of Section 249 which applies to the warrant cases only.