CrPC Section 202 – Postponement Of Issue Of Process

Section 202 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “CrPC”) provides a procedural safeguard in criminal matters by allowing the Magistrate to postpone the issue of process against an accused. Such postponement may be done to enable the Magistrate to conduct an inquiry or to direct an investigation before proceeding further with the case. The primary objective of this provision is to avoid undue harassment of the accused by ensuring that there exists sufficient ground for the case to move forward.

Legal Provision Of CrPC Section 202

Section 202- Postponement of issue of process

1. Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him under section 192 may, if he thinks fit, [and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction] [Inserted by Act 25 of 2005, Section 19 (w.e.f. 23-6-2006).] postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding :

Provided that no such direction for investigation shall be made, -

(a) where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session; or

(b) where the complaint has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath under section 200.

2. In an inquiry under sub-section (1), the Magistrate may, if he thinks fit, take evidence of witnesses on oath :

Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath.

3. If an investigation under sub-section (1) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this Court on an officer-in-charge of a police station except the power to arrest without warrant.”

Detailed Breakdown Of CrPC Section 202

Postponement of the Issue of Process

• Section 202(1) of CrPC empowers the Magistrate, upon receiving a complaint of an offence, the power to adjourn issuing the process (i.e., issuing a summons or warrant against the accused). This postponement can be done if the Magistrate is uncertain as to whether there are sufficient grounds to proceed further.
• The Magistrate can either;
  • Inquire into the case himself to verify whether there is sufficient reason to proceed; or
  • Order an investigation by a police officer or any other competent person that he deems fit for the role. The objective behind the investigation or inquiry is to establish the merits of the complaint before proceeding further with the case against the accused person.
• The Amendment in 2005 (By Act 25 of 2005, effective from 23.06.2006) mandates the Magistrate to mandatorily postpone the issue of process when the accused resides outside the jurisdiction of the Magistrate. It was incorporated to save a person who is residing far away from the jurisdiction of the court from unnecessary harassment and to ensure that there are substantial grounds to summon someone to court.

Purpose of the Inquiry/Investigation

• An inquiry or investigation is meant to help the Magistrate to find out whether he should proceed further in the matter or not. The decision to proceed shall depend on the merit of complaint, so that frivolous and false litigation may be avoided.
• This clause helps to eliminate frivolous complaints, hence saving the complainant from useless processes and maintaining judicial economy by dealing with only those complaints that have merit.

Proviso to Section 202(1)

• There are two important circumstances wherein a Magistrate cannot direct investigation under Section 202 of CrPC:
  • Offences Exclusively Triable by Session Court: If the offence complained of is exclusively triable by a Court of Session, then the Magistrate would be debarred from issuing an order to investigate. For the reason that offences of greater gravity are exclusively triable by Sessions Courts, hence, the Magistrate does not have the authority to intervene in such matters.
  • Complaint Not Made by a Court: When the complaint is made by a private individual and not by a court, then the Magistrate should scrutinise the complainant and any witnesses present with an oath, under Section 200 of CrPC, before proceeding further.

Examination of Witnesses

• Under Section 202(2), in the course of such inquiry, the Magistrate may, if he thinks fit, examine on oath any witness he may summon for that purpose. It then enables the Magistrate to access the genuineness and credibility of the complaint and the evidence placed before him at the preliminary stage.
• The Proviso to Section 202(2) makes it mandatory for the Magistrate to call the complainant to bring all his witnesses before him and examine them on oath if the offence is exclusively triable by a Court of Session. This would mean that serious allegations, triable by the Session Court, are sufficiently substantiated by strong evidence before proceeding further.

Investigation by a Non-Police Officer

• Section 202(3) deals with the situation when the investigation is to be done by a person who is not a police officer. For the purpose of investigation, the powers of all officers-in-charge of a police station are exercised by such a person except the power to arrest without warrant.
• This ensures that an investigation is conducted with due diligence and authority but safeguards the accused from arbitrary arrest in the process of such an investigation.

Purpose And Objective Of CrPC Section 202

The primary objective of Section 202 of CrPC is to provide a framework which can help the Magistrate to determine the veracity of the genuineness of the complaint and ascertain whether there is prima facie evidence to support the accusation. This provision serves the following purposes:

1. Protection to the Accused: The Magistrate has the authority to postpone the issuance of the process. By conducting an inquiry or investigation prior to the issuance of the process, the Magistrate ensures that the accused does not face harassment or unnecessary legal proceedings without any cogent reason. In particular, the mandatory postponement of the process for an accused residing outside the jurisdiction of the Magistrate ensures protection against unwarranted summons or arrest.
2. Judicial Economy: Section 202 prevents the court from being overburdened by a frivolous case. The complaints which are not based on sound grounds are filtered out at the initial stage itself so that only those cases that are likely to succeed, proceed further in the legal procedure.
3. Fairness vs. Accountability: The provision fairly maintains a balance between the accused not being an easy prey for the complainant, and the complaint not being rejected without scrutiny. If the Magistrate is satisfied with the findings of the inquiry or investigation, they can proceed with the process; however they can dismiss the complaint at this early stage if no merit is found. This would save the accused from unnecessary legal harassment.
4. Fair Hearing of Serious Offences: The special provisions related to offences triable by the Court of Session ensure that for serious crimes, there is a stricter examination of witnesses. This helps in ensuring that serious allegations are substantiated before they move forward with the trial.

Landmark Cases Related To CrPC Section 202

National Bank Of Oman vs. Barakara Abdul Aziz & Anr (2012)

In this case, the Court was of the view that the Chief Judicial Magistrate (CJM) had not conducted any inquiry or ordered an investigation as provided by Section 202 of CrPC before issuance of the process, given that the respondent resided outside the jurisdiction of the CJM. Interpreting the facts of the case, the Court concluded that it was necessary for the CJM to conduct the inquiry or order an investigation as contemplated under Section 202 of CrPC before commencing the legal proceedings.

With respect to Section 202 of the CrPC, the Court held the following:

• Objective of Inquiry/Investigation: An inquiry or investigation under Section 202 of CrPC is for assisting the Magistrate in deciding whether reasonable grounds exist to further proceed with the case.
• Scope of Inquiry: The scope of the inquiry is limited to the following:
  • To ascertain whether the allegations made in the complaint are genuine as based on the evidence provided by the complainant.
  • To ascertain whether a prima facie case exists for issuance of the process.
  • To decide purely and solely from the perspective of the complainant, and without any consideration the defences the accused may have.
• Amendment and its purpose: The Court placed much emphasis on the 2005 Amendment to Section 202. This 2005 Amendment made it mandatory that the Magistrate must conduct an inquiry or pass an order for investigation before summoning an accused residing out of their jurisdiction. The purpose of this Amendment was to prevent innocent people from harassment through false complaints.
• Directive of the Court: The Supreme Court, while accepting the fact that the High Court was right, decided to remit the case to the Magistrate. The Supreme Court instructed the Magistrate to issue new orders in accordance with the provisions of Section 202 of CrPC.

The Supreme Court concluded that the High Court was correct in holding that the CJM had failed to take note of the amendment of Section 202. The Court held that the CJM had made absolutely no inquiry or investigation as required under amended Section 202. As it was undisputed fact that the accused resided outside the jurisdiction of the CJM, the Court did not see any infirmity in the conclusions drawn by the High Court.

Udai Shankar Awasthi vs. State of Uttar Pradesh (2013)

The Supreme Court in this case held that the provisions of Section 202 was amended to make it mandatory to postpone the issuance of process where the accused resides beyond the territorial jurisdiction of the Magistrate. This requirements is necessary to protect innocent person from being harassed by unscrupulous persons and making it obligatory upon the Magistrate to enquire into the case himself, or to direct investigation to be made by a police officer, or by such other person as he thinks fit for the purpose of finding out whether or not, there was sufficient ground for proceeding against the accused before issuing summons in such cases.

Vijay Dhanuka Etc vs. Najima Mamtaj Etc. (2014)

In this case, the Supreme Court held the following with respect to Section 202 of CrPC:

• The Court held that inquiry or investigation under Section 202 of the CrPC is mandatory before summons are issued against an accused living beyond the territorial jurisdiction of the magistrate. This was due to the following reasons:
  • The word “shall” in Section 202 makes inquiry or investigation mandatory.
  • The insertion of words “and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction” into Section 202 was to avoid harassment of innocent persons by false complaints.

Conclusion

Section 202 of the Code of Criminal Procedure, 1973, therefore, is a procedural safeguard aimed at providing protection to the rights of the accused while ensuring that complaints having sufficient grounds are allowed to proceed further in the judicial process. Section 202 empowers the Magistrate to carefully evaluate the complaint through an inquiry or investigation and prevention of baseless or malicious litigation. But in doing so, this provision also enshrines another basic principle of natural justice that nobody should be proceeded against without a cause or without evidence. In doing so, it maintains judicial efficiency and fairness in the Criminal Justice system.