This article is written by Prakhar Rathi, currently pursuing B.A.LLB (Hons) from the Department of Law, Aligarh Muslim University. This is an exhaustive article which deals with the issue of process under Cr.P.C.
To make the accused appear in the court, the Magistrate can direct the accused to be brought or present in the court by issuing a process for making him answerable to the court. The magistrate has to take cognizance of the allegations made when the police report is filed by the complainant or in the complaint made before the magistrate, and if he thinks fit, he may issue a process against the accused which is defined under Section 204 of the code of Criminal Procedure. As the case appears before him, he issues his summon or warrant. He can also postpone the issue of process for which the provisions are given under Section 202 of this code.
Issue of Process
The issue of process is defined under Section 204 of The Code Of Criminal Procedure, 1973. Section 204 empowers the magistrate to issue summons or warrant (as the case appears) for the attendance of the accused after the witnesses of the prosecution have been filed. There is no requirement for the Magistrate to record detailed reasons for issuing process against the accused persons. If he feels that there is adequate ground to proceed against the accused, he shall issue the process. it is very essential that the Magistrate must have applied his mind to the materials filed therewith and the accusations made in the police report.
Provisions relating to the issue of process
Section 204 of the code provides the provisions involved in the issuing of process.
(1) if the Magistrate opinions after taking cognizance of an offense that there are sufficient grounds for proceedings, and the case looks like:
(a) a summons-case, then for the attendance of the accused he shall issue his summons, or
(b) a warrant-case, then in order to make the accused be brought or appear in the Court at a particular time, he may issue a warrant or a summons as he deems fit, before that Magistrate or (if he does not have competent jurisdiction) some other Magistrate having jurisdiction.
(2) under 204(1), no summons or warrant shall be issued against the accused until a list of the prosecution witnesses has been filed.
(3) When a complaint made in writing institutes a proceeding, a copy of such complaint shall be accompanied with every warrant or summons issued under 204(1).
(4) When any process-fees or other fees are payable by any law for the time being in force, the process cannot be issued until the fees are paid and, if no such fees is paid within an appropriate time, the Magistrate may reject the complaint.
(5) Nothing in this section shall be considered to affect the provisions of section 87.
In the case of Bhushan Kumar vs. State (N.C.T. of Delhi), (2012)2 SCC(Cri.)872, when High Court rejected the prayer of the appellants which sought the quashing of the summons order passed by the Magistrate, the appellants reached the apex court through Special leave petition.
The Supreme Court held that there is no need for the Magistrate to record detailed reasons at the time of issuing a process against the accused persons. The Magistrate needs to observe whether there is adequate ground to initiate proceedings against the accused and while taking cognizance of an offence, and if he does feel so, he shall issue the process. it is of vital importance that the Magistrate must have applied his mind to the materials filed therewith and the accusations made in the police report.
Same was reiterated by the Hon‘ble Allahabad High Court in the case of Anand Kumar Porwal vs. State of UP and another, 2011(1) ALJ (NOC) 117
In Smt. Nagawwa vs. Veeranna Shivalingappa Konjalgi & Ors. (1976) 3 SCC 736, the Apex Court held that in order to decide if a process should be issued or not, the Magistrate can take into cognizance unlikelihood appearing in the complaint or in the evidence which is led by the complainant to defend his allegations.
The Magistrate has been granted absolute discretion in the matter and this discretion has to be exercised judicially. It was also held that after the Magistrate has exercised this discretion, it is not for the Hon’ble High Court, or even the Hon’ble Supreme Court, to replace its own judiciousness for that of the Magistrate or even to probe the case on merits in order to dig out whether the accusations made in the complaint, if established, would ultimately lead in the conviction of the accused.
In the case of Nupur Talwar vs. C.B.I. and another, A.I.R., 2012 S.C.1921, when the magistrate summoned the parents of Arushi Talwar, they reacted by filing a review petition in Allahabad High court but when the High Court dismissed the petition, special leave petition was filed before the Hon’ble Supreme Court. When S.L.P was dismissed, they filed an instant review petition which was entertained in which parents desired to review its order given by itself in S.L.P.
The Hon‘ble Supreme Court has held that the Revisional Court cannot go into the question of whether the reasons given by Magistrate were good or bad, sufficient, or insufficient when the revision is filed against the order of issuing process against the accused. It can only look into the matter whether there was material before the Magistrate to have a look that there was sufficient ground for issuing the process. U/s 204 of the code, issuing process need not be reasoned and therefore the absence of reasons does not vitiate order.
Issue of the process in a summons case
Summon is a document, when served, instructs a person to appear before the court and to answer the complaint made against him. According to section 2(w) of the code, when a case is related to an offense and not if it is not a warrant case, it can be said as a summons case. Summon cases can be understood from the definition of the warrant case which is defined under section 2(x) which states that offenses which are punishable with death, imprisonment for life, and imprisonment for the terms exceeding two years are called warrant cases.
Therefore, summon cases are those cases in which punishment shall not exceed imprisonment for two years. They are not of a serious nature, so they need to be decided swiftly in comparison to serious cases, but not at the cost of justice.
Section 204(1)(a) of Cr.P.C, 1973 empowers the Magistrate to issue summons to the accused. However, Section 204(5) provides that this section does not affect the provisions of Section 87. Therefore, the court may issue a warrant in any case in which it is empowered by the Code of Criminal Procedure to issue a summons for the appearance of the accused, after recording the reasons in writing.
Issue of the process in warrants case
If the Magistrate deems fit, he may issue a summons, or a warrant, so that the accused be brought, or appear, at a particular time before him or (if he does not have competent jurisdiction) some other Magistrate having competent jurisdiction, in the matter. The list of prosecution witnesses must be filed to issue a summons or warrant against the accused. If any processing fee or other fee is payable under any law for the time being in force, the process cannot be issued until that fee is paid. If such a fee is not paid within a considerable time, the complaint can be dismissed by the Magistrate.
It is noteworthy that since the protection is given under Article 361 of the Constitution, no process can be issued by any court against the President of India or the Governor of a State in the tenure of their office for the arrest or imprisonment. For issuing of process, the only condition necessary is that the deposition made by the complainant must have some considerable and sufficient ground in order to proceed in the matter. Therefore, until and unless, there is sufficient material to justify the issue of a process, or there is considerable ground for proceeding with the complaint, the Magistrate should not issue the process. However, if complaints are preferred by two counter-complainants before a Magistrate, the process can be issued validly in one case by him, and the issue of a process can be postponed in the other one until the first case is disposed of.
Postponement of issue of process
Provisions given under Section 202 of the Code of Criminal Procedure, 1973 which are related to the postponement of issue of process for further scrutiny of the complaint are given as follows:
(1) If a case is made over to Magistrate under Section 192, or, on receiving a complaint of an offense of which he is competent to take cognizance, such magistrate may, if he thinks fit, (and shall in those cases in which residents of the accused is beyond the area of his jurisdiction) postpone the issue of process and either probe into the case himself or order the police officer to make an investigation or to any other person as he thinks fit, to determine whether or not there is reasonable ground for proceedings:
(a) where it becomes apparent to the Magistrate that the offence complained can be tried exclusively by the Sessions Court, or
(b) where the complaint is not made by a Court unless the witnesses and the complainant present have been examined on oath as provided under Section 200.
(2) The Magistrate may, if he feels the necessity, take the testimony of witnesses in an inquiry under section 202(1): only if it becomes apparent to the Magistrate that the offence complained can be tried exclusively by the sessions court, he shall summon the complainant to present all his witnesses and probe them on oath.
(3) If a person not being a police officer makes an investigation under section 202(1), except the power to arrest without warrant, he shall have all the powers granted by this Code on an investigating officer of a police station for that investigation.
The primary motive of an investigation is to authorize the Magistrate to conclude whether the process needs to be issued or not, and so that the doubts and hesitation can be removed which he might have felt upon the bare study of the complaint and the contemplation of the complainant’s evidence on oath.
The primary motive of an investigation provided under Section 202 of the Code is to help and aid the Magistrate in finishing the proceedings already instituted upon a complaint before him and not to initiate a fresh case on police report.
After taking notice of an offence on the basis of a police report and after the appearance of the accused, then the judicial Magistrate cannot order a new investigation by the police under Section 202, an inquiry by the Magistrate is not in the form of a trial as, in law, there can be merely one trial in respect of any offence which can be started only after a process is issued against the accused.
Therefore, the said proceedings are not sort of proceedings between the complainant and the accused. Until it is determined by the Magistrate to issue a process against whom a complaint is filed, that person cannot be considered as an accused.
The power under Section 156(3) to order police investigation are unlike the powers conferred under Section 202(1) to direct investigation. An investigation is exercisable at the pre-cognizance stage under Section 156(3) whereas the investigation under Section 202(1) is at the post-cognizance stage only when the Magistrate determines for that case.
Section 202 of the Cr.P.C. steps in when the Magistrate gathers some evidence in the proceedings under Chapter XV of the Code of Criminal Procedure, but it is deemed to be insufficient in order to decide as to the following step in the prescribed procedure. In such situations, the Magistrate is empowered under Section 202 of the Code of Criminal Procedure to order an investigation (within the limits posed by that Section) with the objective of determining whether there is sufficient ground for proceeding.
Since the provisions contain the words ‘if he thinks fit’, therefore section 202 of code grants full discretion to the Magistrate to direct an investigation or to decide to make an inquiry. The discretion, however, has to be exercised judicially. In the case of Smt. Nagawwa vs Veeranna Shivallngappa Konjalgi, the Hon’ble Supreme Court observed that once the Magistrate has exerted his discretion, it is not open even for the High Court, or the Apex Court, to replace its own discretion on that of the Magistrate or to study the case on merits with an aim to find out whether the allegations in the complaint, if proved, would end in the conviction of the accused.
The issue of process as defined under section 204 of the code takes place after the Magistrate has taken the cognizance of the complaint made before him or the accusations made in the police report. It can only be done after the prosecution has filed the witnesses. The Magistrate can issue Summons or warrant, as he thinks fit, to the accused so that the accused be brought up and made answerable to the court.
There is no mandatory provision for the Magistrate to write the detailed reason for issuing the process. He can also postpone the issue of process as provided under section 202 of this code. The main motive of an investigation under Section 202 of the Code of Criminal Procedure is not to begin a fresh case on police report but to help and aid the Magistrate in finishing the proceedings already instituted upon a complaint before him.
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