Section 272 – Absence of Complainant

Introduction

Section 272 of the Bharatiya Nagarik Suraksha Sanhita, 2023 deals with the situation where a criminal proceeding has been instituted on the basis of a complaint, but the complainant remains absent on the date fixed for hearing.

The provision gives the Magistrate a discretionary power to discharge the accused when specified conditions are satisfied. However, the Magistrate must first give the complainant thirty days’ time to appear. The power can be exercised only before the charge has been framed.

Meaning of Absence of Complainant

Absence of complainant refers to a situation in which a case instituted upon complaint is fixed for hearing, but the complainant does not appear before the Magistrate.

Section 272 permits the Magistrate, in specified circumstances, to discharge the accused after giving the complainant an opportunity of appearing within thirty days.

The provision is concerned with cases instituted upon complaint and does not create an automatic rule that every absence of a complainant results in discharge.

Statutory Basis

Section 272 of BNSS, 2023 provides that when:

• proceedings have been instituted upon a complaint;
• the complainant is absent on a day fixed for hearing;
• the offence may lawfully be compounded or is not a cognizable offence; and
• the charge has not yet been framed,

the Magistrate may, after giving the complainant thirty days’ time to appear, exercise discretion to discharge the accused.

Essential Elements

1. Proceedings Must Have Been Instituted Upon Complaint

Section 272 applies where the criminal proceedings have been instituted upon a complaint.

The provision therefore operates within the framework of complaint cases before a Magistrate.

2. Complainant Must Be Absent

The complainant must be absent on a day fixed for the hearing of the case.

Mere absence does not automatically result in discharge. The Magistrate has to consider the statutory conditions and exercise judicial discretion.

3. Offence Must Be Compoundable or Non-Cognizable

Section 272 applies where the offence:

• may lawfully be compounded; or
• is not a cognizable offence.

Thus, the provision does not apply indiscriminately to every complaint case.

4. Thirty Days’ Opportunity Must Be Given

Before exercising the power of discharge, the Magistrate must give the complainant thirty days’ time to be present.

This gives the complainant an opportunity to appear before the Court and prevents an immediate discharge solely because of absence on one hearing date.

5. Charge Must Not Have Been Framed

The Magistrate can exercise the power under Section 272 at any time before the charge has been framed.

Once the charge has been framed, the specific power of discharge under Section 272 is no longer available.

6. Discharge Is Discretionary

The language of Section 272 is permissive. The Magistrate may discharge the accused.

Therefore, discharge is not automatic merely because the complainant remains absent after the thirty-day opportunity. The Magistrate must exercise judicial discretion in the circumstances of the case.

Procedure

The basic procedure under Section 272 can be understood as follows:

1. The case must have been instituted upon a complaint.
2. A date must have been fixed for hearing.
3. The complainant remains absent.
4. The Magistrate considers whether the offence is compoundable or non-cognizable.
5. The complainant is given thirty days’ time to appear.
6. If the statutory conditions continue to be satisfied, the Magistrate may exercise discretion to discharge the accused.
7. The power must be exercised before the charge has been framed.

Powers of the Magistrate

Section 272 confers a discretionary power upon the Magistrate to discharge the accused in the circumstances specified by the provision.

The Magistrate is not compelled to discharge the accused merely because the complainant is absent. The statutory requirements must first be satisfied, and the Court must determine whether discharge is appropriate.

Important Distinction

Discharge under Section 272 and Acquittal

Discharge and acquittal are legally different.

Discharge under Section 272 may take place before the charge has been framed and is based on the statutory circumstances relating to the complainant’s absence.

Acquittal, on the other hand, is an adjudication resulting in a finding that the accused is not guilty after the relevant stage of the trial.

Section 272 therefore specifically concerns discharge, not acquittal.

BNSS and CrPC

Section 272 of BNSS corresponds to Section 249 of the Code of Criminal Procedure, 1973.

The core principle has been retained: where proceedings are instituted upon complaint and the complainant is absent, the Magistrate may, in specified circumstances, discharge the accused before framing of charge.

A notable procedural change under BNSS is that the complainant must be given thirty days’ time to be present before the Magistrate exercises the power of discharge. The earlier Section 249 of the CrPC did not expressly contain this thirty-day requirement.

Thus, Section 272 substantially retains the earlier framework while introducing a specific opportunity period for the complainant.

Common Confusions

Does the complainant’s absence automatically discharge the accused?

No.

The Magistrate has discretion to discharge the accused only when the conditions prescribed by Section 272 are satisfied.

Is Section 272 applicable to every criminal case?

No.

It applies to proceedings instituted upon complaint where the offence may lawfully be compounded or is not a cognizable offence.

Can the Magistrate discharge the accused after framing of charge?

No.

The power under Section 272 can be exercised only before the charge has been framed.

Must the complainant be given thirty days to appear?

Yes.

Section 272 expressly requires the Magistrate to give the complainant thirty days’ time to be present before exercising the power of discharge.

Topic at a Glance

• Topic: Absence of complainant
• BNSS Section: Section 272
• Nature: Discretionary power of the Magistrate
• Applicable proceedings: Proceedings instituted upon complaint
• Relevant condition: Complainant is absent on the hearing date
• Applicable offences: Compoundable offences or non-cognizable offences
• Opportunity: Thirty days must be given to the complainant to appear
• Time limit: Power may be exercised before charge is framed
• Consequence: Magistrate may discharge the accused
• CrPC counterpart: Section 249 of the CrPC

Quick Revision

• Section 272 BNSS deals with absence of the complainant.
• It applies to proceedings instituted upon complaint.
• The complainant must be absent on a date fixed for hearing.
• The offence must be lawfully compoundable or non-cognizable.
• The Magistrate must give the complainant thirty days’ time to appear.
• Discharge under the provision is discretionary, not automatic.
• The power can be exercised only before framing of charge.
• Section 272 corresponds to Section 249 CrPC, with the BNSS adding the express thirty-day opportunity.

ALSO READ: Section 271 – Acquittal or conviction

Conclusion

Section 272 BNSS provides a procedural safeguard against allowing complaint proceedings to continue indefinitely when the complainant does not appear. At the same time, the requirement of giving thirty days’ time ensures that the complainant receives an opportunity to appear before the accused is discharged. The provision therefore balances the complainant’s opportunity to pursue the case with the accused’s interest in avoiding unnecessary continuation of proceedings.