This article is written by Parth Verma, a student of the School of Law, Christ University, Bengaluru. This article seeks to explain Section 202 CrPC, 1973 including its features, objectives, important case laws, and issues.

It has heen published by Rachit Garg.

Introduction

There is a saying in criminal law that it is better to have ten guilty persons escape than one innocent suffer. This is the very objective of justice i.e., to ensure absolute fairness for all. It has been imbibed in the Code of Criminal Procedure, 1973. A person who is a victim of a criminal act can adopt various routes like approaching the police directly for getting a First Information Report (FIR) filed before them or making a complaint directly to the Judicial Magistrate in the court of competent jurisdiction. After taking cognizance of the offence, the police or Magistrate may undertake an investigation to ensure that proceedings take place quickly. At the same time, there is a need to ensure that the rights of the accused are also protected. Any step, whether issuing a summon or taking cognizance, needs to be taken responsibly. As stated under Section 202 of the Code of Criminal Procedure, 1973, the Magistrate can even postpone the issue of summons or warrants to look into the case. This article seeks to explain this section along with the issues that might arise in its application.

Process before invoking Section 202 CrPC

Before the application of Section 202 in any given case, there are certain prerequisites that are needed to be fulfilled which are as follows:

  1. When a criminal act is committed against the person concerned, he/she has two routes to seek justice. 
  1. They can either approach the police and get an FIR (First Information Report) filed with them which shall then initiate the investigation process. 
  2. However, in the case of a non-cognizable offence, the above is not possible. In such a situation they can file a complaint before the Magistrate. 
  1. A complaint as defined under Section 2(d) of the Code of Criminal Procedure, 1973 refers to any allegation made in oral or writing by a known or unknown person, with a police report not included except in case of a non-cognizable offence. A complaint can not only be filed by the sufferer but by any other person as the concept of Locus Standi is diluted in criminal proceedings. 
  2. Upon receiving such a complaint, the Magistrate, if satisfied, can take cognizance of the offence under Section 190(1)(a) or dismiss the same under Section 203 of the Code.
  3. At the same time, even before taking cognizance of the offence, the Magistrate can issue a search warrant under Section 93. The Magistrate can also order an investigation by police of the complete matter to be very sure before taking cognizance of the offence under Section 156(3) of this Code.
  4. After taking cognizance of the offence, they are required to investigate the case by themselves by examining all the witnesses presented before them on oath. The substance of such interrogation and examination should be reduced to writing and be made readily available under Section 200 of the Code. 
  5. However, there can be several exceptions under which no investigation is required. A complaint made by any public servant or the Court under Section 195 won’t require any investigation. Further, if a case has been transferred from one court to another or if the police have investigated a case that turned out to be a non-cognizable offence, their investigation reports would become a complaint in itself. 
  6. To ensure that there is no issue on part of the complainant, Section 202 of the Code could come into the picture. In order to be very sure that the claims are genuine, the Magistrate can order a further investigation and postpone the process of issuing a summon or warrant to the accused. This section hence plays a vital role in a criminal proceeding to provide a fair opportunity to both parties.

This is the general procedure that is followed before going on to Section 202 for postponing the issue of the summon or arrest warrant to the accused. Its features and the related case laws would be discussed in the coming sections.

What is Section 202 CrPC

Section 202 of the Code of Criminal Procedure, 1973 primarily focuses on the postponing of the issue of process on the part of the Magistrate. In other words, a Magistrate, if he deems fit to carry out a further inquiry in a given case either by himself/herself or an investigation by the police, may postpone the issue of process. This Code primarily has the objective of ensuring that there is absolutely no issue or loophole in the case which might be exploited by either of the parties, thereby ensuring fair and equitable justice. Apart from that, there might be certain cases that might require deeper investigation than was thought before. Due to this, to obtain some more time for investigation, the issue of process could be postponed. The Magistrate might formally take evidence from the witnesses on oath as per the powers assigned to them. Only after a complaint has been filed before the Magistrate and he/she has taken cognizance of the case can this section be invoked. 

Section 202 CrPC read with Section 192 CrPC

Section 192 of the Code mentions the process of making over a case from one Magistrate to another. The Chief Judicial Magistrate can take over the case to a subordinate Magistrate for any inquiry or trial after taking the requisite cognizance of the same. Any Magistrate, empowered by the Chief Judicial Magistrate, can take over the case for the inquiry or trial to any other competent Magistrate as well. This is an alternate route through which a complaint could be indirectly filed before a given Magistrate authorized by the Chief Judicial Magistrate.  A complaint can be directly made to the Magistrate under Section 202 or can be referred to a Magistrate under Section 192 of the Code. Both these sections lay down the various routes or options through which any complaint can be filed before Judicial Magistrate.

Features of Section 202 CrPC

Post cognizance stage

The need for Section 202 arises after the Magistrate has taken cognizance of the offence. In other words, if the Magistrate doesn’t dismiss the case on the basis of the complaint and decides to further look into it, Section 202 could come into the picture.

Investigation

Under this section, the Magistrate has the power to investigate the specific matter of law kept for consideration under the complaint that they have received under Section 192 or Section 202. On the other hand, they can also instruct the police to carry out an investigation into the matter. The difference between the investigation by police under Sections  156(3) and 202 is that while in the former, the investigation has to be carried out from scratch regarding the entire matter, the scope of the investigation is narrow and very specific in the latter. Further, an investigation under Section 156(3) is carried out to find whether there is any material that prima facie could be used for issuing summons. The same investigation is not considered to be final and could be subjected to further scrutiny.

Postponement of issue

Under Section 202(1) of the Code of Criminal Procedure, 1973, the Magistrate upon receiving a complaint can certainly postpone the issue of the summon or the arrest warrant to the accused, and during this time period, they can either conduct the inquiry by themselves or direct the police to carry out the investigation. However, there are certain exceptions to it where they can’t order the investigation. In Section 202(1)(a), if the Magistrate is of the opinion that the case is exclusively triable by the Court of Session, there is no need for investigation. Further as per Section 202(1)(b), if the complaint has not been made by the Court, no investigation can take place, unless the complainant and the witness have been examined on oath under Section 200 of the Code. The basic purpose behind it is to be very sure of the allegations before taking any action against the accused.

Examination of witnesses

The Magistrate, if he deems fit, can take the evidence of the witnesses on oath as stated in Section 202(2) of the given Code. In those cases where the Magistrate is of the opinion that the offence which is being complained about is exclusively triable by the Court of Session, he/she can ask the complainant to present all the witnesses and subsequently examine them. However, for issuing summons to any person residing beyond the Magistrate’s jurisdiction, the Magistrate is compulsorily required to carry out the investigation, whether or not there are any sufficient grounds for proceeding.

Powers with the Magistrate

As per Section 202(3) of the Code, if the investigation under Section 202(1) has not been carried out by a police officer, the same power will get transferred to the Magistrate except for the fact that they will not be allowed to arrest the person without any warrant. In other words, the Magistrate shall obtain all the powers of the officer in charge of that police station.

No external intervention

As per this section, no person, not even the accused, is allowed to intervene in the process of investigation or inquiry. It is a function that is to be performed by the Magistrate and he is only going to be responsible for the investigation whether it is conducted personally by him or by police who are ordered to conduct the investigation by the Magistrate.

Objectives of Section 202 CrPC

While analyzing any criminal case, certain problems might arise. To be very sure while carrying out the investigation, this section could play a vital role. The basic objectives of this section are as follows:

  1. The primary objective of this section is to provide the Magistrate with sufficient time to scrutinize and investigate the complaint filed by any person. Through this, they would be able to ensure that the person who has been alleged as the wrongdoer is prevented from facing any unnecessary or unjust action because of the frivolous or malicious complaint that is filed.
  2. Another major objective of this section is to facilitate an investigation by the police after taking cognizance. After taking cognizance, the investigation would be more specific in nature thereby leading to more accurate findings. Hence, the possibility of the investigation reports being more accurate and reliable would also increase.
  3. A Magistrate by himself can find out whether there is any material evidence to support the allegations made in the complaint by the person.
  4. The Magistrate is also given the power to examine the witnesses on oath under Section 202. This could further help the Magistrate determine the direction of the criminal proceeding and accordingly dismiss the complaint or order for further investigation.
  5. Under this section, there is no intervention by the accused in the process of inquiry. This helps in ensuring that the investigation is conducted fairly and in an unbiased manner to get accurate results, thereby ensuring fair justice.

These are some of the major objectives which this section aims to achieve. The responsibilities of both Magistrate and police are very high. Hence, they need to perform their roles with utmost honesty and without any bias.

Relevant judgements

Vadilal Panchal v. Dattaraya Dulaji Ghadigaonker and Anr (1960)

This case was among the very first cases in which the Supreme Court of India discussed the scope of Section 202 of the Code of Criminal Procedure, 1973. In this case, the respondent Vadilal Panchal openly fired at a mob on the road when they were pelting stones at passing cars and shouting slogans. This caused serious injuries to the appellant and he was sent to the hospital. An inquiry was conducted by the police and they came to a conclusion that Vadilal was justified in his action as it was for private defence. However, the Magistrate requested another inquiry under Section 202. The complaint was dismissed after which the appellant moved the High Court.

The Court in its judgment stated that the objective of Section 202 is to determine the truth or falsehood of the complaint in order to justify the issue of the process and to start the proceedings against the concerned person.

Chandra Deo Singh v. Prokash Chandra Bose (1963)

In this case, a First Information Report was filed by the plaintiff and others against the respondent, alleging that the respondent had committed a murder. However, the relative of the deceased filed a complaint before the court that the FIR was false and there were people other than the persons claimed in the FIR who committed the murder. He requested the Magistrate to investigate the complaint and carry out the inquiry.

There were several issues in the process of investigation. The Supreme Court of India, in this case, held that the basic objective of Section 202 of the Code is to remove any form of hesitation that might be there in the mind of the Magistrate and help them to form an opinion regarding whether they should proceed with a further investigation or dismiss the suit there and then. When there is direct evidence, however, available against the accused, a summons can be issued by the appropriate Magistrate.

Mohabbat Ali v. State of Uttar Pradesh (1984)

In this case, the complainant filed a complaint against the accused for committing dacoity. A police investigation was carried out and the reports were also prepared and duly submitted. After obtaining these reports, the Magistrate issued summons to the accused to stand for their trial. Such offences were exclusively triable by the Court of Session.

The Allahabad High Court, as a result, held in this case that since this case can be directly dealt with in the trial court, there was no power with the Magistrate to issue summons directly due to which this order is invalid. Under Section 202(2) of the Code, all the witnesses that the petitioner wanted to produce should have been appropriately examined and the order should only have been passed later by the Magistrate according to the evidence that he had provided.

KM Mathew v. State of Kerala (1991)

In this case, the appellant was alleged to be the accused in a complaint that had been filed by an advocate who was aggrieved by a news item that had been published in that newspaper. The Magistrate issued a summons to the appellant. The appellant requested the Magistrate to drop the proceedings contending that the complaint didn’t actually prove that he had edited or published that material. The proceedings were subsequently dropped and the advocate filed a special leave petition challenging the High Court’s decision. 

In this case, the Supreme Court held that the Magistrate had the required powers to drop the complaint. The Court further went on to say that the Magistrate must be completely satisfied that there is sufficient ground to proceed with the investigation but that satisfaction is to be arrived at after conducting the inquiry under Sections 200 and 202 of the Code.

Lacunae in Section 202 CrPC

While this section can have various benefits as seen above, it also has certain limitations which should be considered for improving the Criminal Procedure in India. Some of these issues are as follows:

Delays in the issue of process

Since the issue of process is postponed under Section 202, it might be fair for the accused. However, if there is a situation of Res Ipsa Loquitur (the thing speaks for itself) on the part of the complainant through the severe injuries suffered, he/she shall be deprived of quick justice in such a situation. In other words, despite the injury and the person causing such injury being clearly known in the case, the injured party would be deprived of quick redressal. They are essentially stuck in a situation where they can be severely injured but can’t obtain any compensation for a longer period.

Discretionary

All the steps that have been provided in Section 202 of the Code can be carried out at the whims and fancies of the Magistrate. He/she has the power to decide whether the cognizance shall be taken and whether the case should be referred for further investigation or not. They can also easily decide whether the suit shall be dismissed or not. While they have so many responsibilities as well as the necessary authority, they aren’t accountable for their acts. Hence,  their personal bias could enter and fair justice might not be provided.

Tedious examination process

While the examination of witnesses can be carried out by the Magistrate, the process can get very tedious at times. The complainant shall firstly be required to find all the eyewitnesses to the incident and present them before the Magistrate. The Magistrate would need to examine them and if it is inconclusive, could even dismiss the complaint. After such a long process as well, the efforts and time of both the complainant and the Magistrate can be redundant.

Redundant police investigation

Since the police are already required to investigate the matter before the cognizance is taken up for the matter by the Magistrate, doing it again after taking the cognizance of the complaint will be a mere redundant activity. Though the scope of the investigation would narrow down, another investigation, despite being more focused, would only lead to the same results, if the initial investigation had been carried out diligently. Hence, ordering a police investigation again would only be a wasteful and redundant activity.

Issue of process under Section 204 CrPC

Under Section 204 of this Code, the issue of the process can be carried out lawfully by the Magistrate. It is directly related to Section 202. If after carrying out the investigation under Section 202, the Magistrate is satisfied that there is sufficient ground for proceeding with the case, they can directly issue the process under Section 204 of the Code. In such a situation, they can either issue summons or an arrest warrant after taking cognizance of the case. However, there are several questions that might arise while dealing with both sections simultaneously. One of them is with respect to the jurisdiction of the person. 

In the case of Sunil Todi v. State of Gujarat (2021), it had been held by the Court that in all those cases where the person who has been accused for some offences stays in a geographical region outside the Magistrate’s jurisdiction, they are mandatorily required to carry out the inquiry and registration under Section 202 of the Code. 

The same was reaffirmed by the Allahabad High Court in an application filed by Ms. Geeta and four others challenging the summons issued under Section 406 of the Indian Penal Code. When the inquiry is not conducted in a suitable manner, the amendment brought to Section 202 of CrPC is going to absolutely frustrate. 

In another case Adalat Prasad v. Rooplal Jindal (2004), an appeal was made against the decision of the Delhi High Court. The respondent had filed a complaint against the appellant for defrauding him as well as for misrepresentation. The accused was repeatedly issued summons due to which he moved the trial court and the judge eventually recalled the summons. Hence an appeal was filed before the High Court stating that the Magistrate didn’t have the power to recall the summons under Section 204 of the Code. The Court, in this case, held that if the Magistrate after contemplating the inquiry under Section 202 of the Code is satisfied that there is sufficient ground for going forward with the proceedings, they can issue the process under Section 204 of the Code. Further, they have all the due powers to postpone the issue of summons or to even recall the summon without any influence or intervention from any external force.

Conclusion

The criminal justice system in India is slowly becoming more and more outdated. This is both in terms of the fines as well as the entire procedure that is being followed. With an increasing number of criminal cases based on false evidence and complaints, there is a need to bring about certain changes in the current system. To ensure the same, the Code of Criminal Procedure, 1973 provides for various sections dealing with the different routes and steps that can be adopted by the Magistrate as well as the aggrieved party to obtain fair justice. Section 202 plays a vital role in ensuring fairness to even the accused and to keep him/her protected till the Magistrate is very sure to proceed with the action or the issue of summons.

Hence, it can be concluded that the existing provisions are very stringent but should be changed and updated from time to time for filling all the gaps. To realize the true potential of the Criminal Legal System, an effective balance is required to be achieved between the rights of the complainant and the accused. 

Frequently asked questions (FAQs)

What is the role of a witness under CrPC?

The main role of a witness under CrPC is to testify and tell what they exactly know about any given situation. Whatever the witness states in a court is said to be a testimony. Under Section 202 of CrPC, the issue of process can be postponed for investigating witnesses on oath.

When is the strength of evidence in supporting the conviction determined?

The strength of evidence towards supporting the conviction of an individual is to be determined at the trial stage and not at the stage of inquiry as provided under Section 202 of the Code of Criminal Procedure, 1973.

Which Section is very closely related to Section 202 of the Code of Criminal Procedure, 1973?

Both Section 202 and Section 200 work in tandem with each other. Section 200 consists of a stage, only after which Section 202 could come into force. Under Section 200, the Magistrate could take cognizance of the complaint and examine the witnesses. After taking the necessary cognizance, the Magistrate under Section 202 can postpone the issue process to critically analyze the complaint.

References


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