Section 166 — Dismissal for Prosecutor's Non-Appearance
Statutory text (Thai original)
ถ้าโจทก์ไม่มาตามกำหนดนัด ให้ศาลยกฟ้องเสีย แต่ถ้าศาลเห็นว่ามีเหตุสมควรจึงมาไม่ได้ จะสั่งเลื่อนคดีไปก็ได้คดีที่ศาลได้ยกฟ้องดังกล่าวแล้ว ถ้าโจทก์มาร้องภายในสิบห้าวัน นับแต่วันศาลยกฟ้องนั้น โดยแสดงให้ศาลเห็นได้ว่ามีเหตุสมควรจึงมาไม่ได้ ก็ให้ศาลยกคดีนั้นขึ้นไต่สวนมูลฟ้องใหม่ในคดีที่ศาลยกฟ้องดังกล่าวแล้ว จะฟ้องจำเลยในเรื่องเดียวกันนั้นอีกไม่ได้ แต่ถ้าศาลยกฟ้องเช่นนี้ในคดีซึ่งราษฎรเท่านั้นเป็นโจทก์ ไม่ตัดอำนาจพนักงานอัยการฟ้องคดีนั้นอีก เว้นแต่จะเป็นคดีความผิดต่อส่วนตัว
English translation
If the prosecutor fails to appear at the appointed time, the court shall dismiss the charge; but if the court considers that there was reasonable cause for the failure to appear, it may order a postponement of the case. In a case so dismissed, if the prosecutor applies within fifteen days from the day the court dismissed the charge and shows the court that there was reasonable cause for the failure to appear, the court shall take the case up for a new preliminary hearing. In a case so dismissed, the defendant may not be prosecuted again for the same matter; but where such a dismissal is in a case in which only a private person is the prosecutor, it does not bar the public prosecutor from prosecuting that case again, except where it is a compoundable offense.
This English translation is provided for reference only and has not yet been firm-verified — always rely on the Thai original.
Firm annotation
This section governs the consequence of a prosecutor's non-appearance at the preliminary hearing under this Title. Dismissal is the default, tempered by the court's power to postpone for reasonable cause and by a fifteen-day window to apply to reopen the preliminary hearing on proof of good cause. The bar on re-prosecution protects the defendant from repeated charges for the same matter, but the carve-out preserves the public prosecutor's independent authority where the earlier case was privately prosecuted, except in compoundable (personal) offenses. By operation of Section 173/2, this same dismissal mechanism applies when the prosecutor fails to appear on the evidence-examination day, and it interacts with the trial-stage duty to appear in Section 172.
Why this matters in practice
A private prosecutor must treat the preliminary-hearing date as unmissable: absence means automatic dismissal, and reopening it requires applying within a strict fifteen days with a genuine reason. Defendants gain protection against re-filing, but should note that a privately prosecuted matter can still be revived by the public prosecutor unless the offense is compoundable. Because the deadline is short and the standard of good cause is real, anyone in this position should move quickly with a lawyer, as explained in what to know before you go to court in Thailand.
Supreme Court decisions interpreting this section
-
Supreme Court Judgment No. 963/2564 (2021)
When a private prosecutor claims the evidence-examination hearing had been cancelled, the trial court must first hold an inquiry into that claim before deciding whether the absence was without reasonable cause; only then can Section 166 paragraph two, applied through Section 173/2, operate.
The prosecutor did not appear on the evidence-examination day and the charge was dismissed. The prosecutor sought to set aside the proceeding, arguing the hearing date had been cancelled. The Supreme Court held that if that were true the prosecutor could not be treated as absent, and the fifteen-day reapplication rule would not apply; the trial court should first inquire into the claim before ruling.
-
Supreme Court Judgment No. 4154/2563 (2020)
Where the private prosecutor and counsel fail to appear on the preliminary-hearing date, the court dismisses the charge under Section 166, and a later application to take the case up again for a new preliminary hearing may be refused.
In a private prosecution seeking punishment under the Penal Code and return of money to the heirs, the prosecutor and counsel did not appear on the preliminary-hearing date and the trial court dismissed the charge under Section 166. The prosecutor's application to reopen the preliminary hearing was denied, and appeals over the related civil court fees followed.
Curated decisions with case numbers verified against the Supreme Court database. English renderings are the firm's editorial translation for study.
Frequently asked questions
What happens if the prosecutor misses the preliminary hearing?
Under Section 166, the court dismisses the charge unless there was reasonable cause, in which case it may postpone. The prosecutor may apply within fifteen days to have the case taken up for a new preliminary hearing by showing good cause.
Does dismissal under Section 166 end the case forever?
Generally the same private prosecutor cannot re-file for the same matter. But if the case was prosecuted by a private person, the public prosecutor may still bring it, except where the offense is compoundable.