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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