Whether the case is registered as summons or warrant case depends on how the court has directed it to register.
Peruse the record of the case more particularly it's number whether it's registered as SCC or rcc.
By in any case the punishment prescribed in both the sections is not more than two years and case ought to have been tried as Summons case.
The application can be filed at any stage of the case. Give it a try along with supported citations. Best luck.
Move an application before the High court...Non appearance of the complainant /delay in prosecution evidence is a valid argument for dismissal of a complaint case.But do not expect the relief to come from the magistrate...258 is high on discretion component....words like exceptional/unusual etc. make life difficult.Go to the High court with a good counsel
Discretion is no where defined in the books of law.
The court has to pass the order based upon the facts and circumstances of the case. In the given case when the evidence has not been adduced from so many years, it is the best case wherein cost will exercise powers under section 258. Legislature had very wisely incorporated this section in order to cope up with situation like in the case at hand otherwise it would be a travecity of justice and the persons including courts will be rendered helpless and there would be flow of cases in the high Court.
So I don't think there's much discretion left with the court in the present facts and circumstances of the case.
With due respect I am not in agreement with views expressed by adv Siddhartha because there on no provision in crpc for dismissal of charge sheet in absence or non app of complainant. Only section is 256 but it deals with cases instituted upon complaint but the present case is instituted upon police report. Hence case can not be dismissed. Even high Court have to erecise powers under sec 258. There is also possibility that hc might direct to move application before the lower court.