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Monday, December 6, 2021

What is the Meaning of 'Issue of Process' under the Code of Criminal Procedure (CrPC)?

 



INTRODUCTION

 

Today, I will talk about the case of Sunil Todi and Others v. State of Gujarat and Another, 2021 SCC OnLine SC 1174, wherein the Hon’ble Supreme Court discussed about issuance of process and its postponement as enshrined under the Code of Criminal Procedure, 1973 (CrPC). On the present show, I will discuss Sections 202, 203 and 204 of CrPC. 

 

COGNIZANCE AND ISSUE OF PROCESS

 

On the earlier show, I had talked about ‘cognizance’ that is the initial point when a Magistrate first takes judicial notice of an offence. But what happens after taking of cognizance? After taking of cognizance, the next stage is generally the issuance of process “when after considering the material placed before it the court decides to proceed against the offenders against whom a prima facie case is made out.”

 

S.204 OF CRPC

 

Under CrPC, Section 204 deals with issuance of process. It provides that “if in the opinion of the Magistrate taking cognizance of an offence, there is sufficient ground for proceeding, he may issue: -

 

a. In a summons case, a summons for attendance of the accused;

b. In a warrant case, a warrant or if he thinks fit a summons for the appearance of the accused.”

 

Basically, the steps taken by a Magistrate while taking cognizance and issuing process should reflect that “the Magistrate has applied his mind to the facts and the statements and he is satisfied that there is ground for proceeding further in the matter by asking the person against whom the violation of law is alleged, to appear before the court.”

 

Such satisfaction for proceeding against the accused means that the facts alleged in a Complaint should constitute an offence and when such Complaint is considered with other material available on record, there should be a prima facie case made out against the accused. It is to be noted that the Magistrate must not act as a “Post Office in taking cognizance of each and every complaint filed before him and issue process as a matter of course. There must be sufficient indication in the order passed by the Magistrate that he is satisfied that the allegations in the complaint constitute an offence.”

 

Further, “to be called to appear before the criminal court as an accused is serious matter affecting one's dignity, self-respect and image in society. Hence, the process of criminal court shall not be made a weapon of harassment.”

 

S. 202 OF CRPC

 

Another important provision to take note of is Section 202 of CrPC that talks about postponement of issue of process. It mandates that the Magistrate shall postpone the issuance of process in a case where the accused is residing at a place beyond his territorial jurisdiction. An inquiry or investigation in this regard ought to be conducted upon the directions of the Magistrate to look into the sufficiency of the grounds for proceeding against the accused. In all other cases where the Magistrate is authorized to take cognizance, he may postpone the issuance of process against the accused if he so thinks fit and conduct an inquiry or investigation in this regard to look into the sufficiency of the grounds for proceeding against the accused.

 

It is pertinent to note that “at the stage of enquiry under Section 202 CrPC, the Magistrate is only concerned with the allegations made in the complaint or the evidence in support of the averments in the complaint to satisfy himself that there is sufficient ground for proceeding against the accused.” Thus, Section 202 of CrPC “confers jurisdiction on the Magistrate to conduct an inquiry for the purpose of deciding whether sufficient grounds justifying the issue of process are made out.”

 

S. 203 OF CRPC

 

The last provision that I shall discuss on the present show is Section 203 of CrPC that stipulates that if after considering the statements of the Complainant and the witnesses and upon being satisfied that there is no sufficient ground for proceeding against the accused, the Magistrate shall dismiss the Complaint and briefly record his reasons for so doing. Thus, a Speaking Order is to be passed under S. 203. It is pertinent to note that “the requirement of recording reasons which is specifically incorporated in Section 203 does not find place in Section 202.”

 

SUMMARY AND CONCLUSION

 

Therefore, in conclusion, the following pertinent points emerge: -

 

a. Cognizance is taken of the offence and the offender. Conversely, Process is issued against the offender and not the offence.

b. Issuance of process is a stage subsequent to taking of cognizance by the Magistrate and refers to initiation of proceedings against the accused.

c. S. 204 provides that after taking of cognizance, when the Magistrate is satisfied that there is sufficient ground for proceeding against the accused, he may issue either a summons or a warrant, as the case may be.

d. Such satisfaction for proceeding against the accused means that the facts alleged in a Complaint should constitute an offence and lead to making out a prima facie case against the accused.

e. Under S. 202, issuance of process shall be postponed where the accused is residing at a place beyond Magistrate’s territorial jurisdiction.

f. Under S. 202, issuance of process may be also postponed against an accused, if the Magistrate so thinks fit.

g. Whenever issuance of process is postponed, the Magistrate shall conduct an inquiry or direct investigation, to look into the sufficiency of the grounds for proceeding against the accused.

h. Under S. 203, if the Magistrate after perusing the entire material available on record reaches to a conclusion that there is no sufficient ground for proceeding against the accused, he shall dismiss the Complaint by passing a reasoned order. And

i. “The requirement of recording reasons which is specifically incorporated in Section 203 does not find place in Section 202.”

 

Thus, I hope that the concept of issuance of process and its postponement as enshrined under CrPC is clear by now.

 

Important Cases Referred To: 


State of Karnataka v. Pastor P. Raju, (2006) 6 SCC 728

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