Prinsep and O’Kinealy, JJ.
1. We think that the Magistrate was not competent in this case–a warrant case not compoundable–to dismiss it because the complainant was absent.
2. It appears that on the day first fixed for the trial the complainant attended with his witnesses, but in consequence of the inability of the accused, a Police officer, to attend, it was postponed, the complainant and witnesses being bound over to attend on the day to which the trial had been postponed. On that day the accused alone appeared, and the Magistrate dismissed the case. Having regard to the terms of Section 259 we are of opinion that in warrant cases not coming within that section, except under the last clause of Section 253, which is not applicable, a Magistrate is not competent to pass an order of dismissal, or discharge in consequence of the absence of the complainant. The Magistrate should, in the case before us, have admitted the accused to bail, and as the complainant and his witnesses had given recognizances for their appearance, he should have enforced their attendance.
3. The case must, therefore, be tried.