Issuance of criminal process against an accused person is a serious judicial act. When the accused resides outside the territorial jurisdiction of the Magistrate, the risk of misuse of criminal law increases significantly. To prevent harassment of innocent individuals, Section 202 of the Code of Criminal Procedure, 1973 (CrPC) mandates a preliminary inquiry or investigation before summoning such accused persons.
This provision acts as an important safeguard, ensuring that criminal proceedings are not initiated mechanically or used as tools of oppression.
Purpose of Section 202 CrPC
The primary objective of Section 202 CrPC is to protect individuals residing at far-off places from unnecessary harassment through frivolous or malicious complaints.
Without this safeguard, an accused person may be compelled to travel repeatedly to distant courts, causing financial, physical, and reputational harm. The law recognizes that summoning an accused is not a routine formality but a step with serious consequences.
Legal Provision: Section 202 CrPC Explained
Section 202(1) CrPC
Under Section 202(1), any Magistrate who receives a complaint and is authorized to take cognizance:
- May postpone the issuance of process, and
- Shall mandatorily do so when the accused resides beyond the Magistrate’s territorial jurisdiction
During this postponement, the Magistrate may:
- Conduct an inquiry himself, or
- Direct an investigation by a police officer or any other suitable person
The purpose is to determine whether there is sufficient ground for proceeding against the accused.
Exceptions to Investigation Direction
No direction for investigation shall be made:
- When the offence is triable exclusively by the Court of Session
- When the complaint is not filed by a court and the complainant and witnesses have not been examined on oath under Section 200 CrPC
Section 202(2) CrPC
During an inquiry under Section 202(1), the Magistrate may examine witnesses on oath.
However, if the offence is triable exclusively by the Court of Session, the Magistrate must:
- Call upon the complainant to produce all witnesses
- Examine them on oath
Section 202(2) CrPC
During an inquiry under Section 202(1), the Magistrate may examine witnesses on oath.
However, if the offence is triable exclusively by the Court of Session, the Magistrate must:
- Call upon the complainant to produce all witnesses
- Examine them on oath
Factors to Be Considered Before Issuing Process
Before issuing summons, the Magistrate must carefully evaluate:
- The allegations made in the complaint
- The statement of the complainant recorded on oath
- Statements of witnesses, if any
Issuance of process should reflect a judicial application of mind, not a mechanical exercise.
Judicial Interpretation of Section 202 CrPC
Indian courts have repeatedly emphasized the mandatory nature of Section 202 CrPC, especially after the 2005 amendment.
Mehmood Ul Rehman v. Khazir Mohammad Tunda
The Supreme Court held that the Magistrate must apply his mind to assess:
- Whether the material on record constitutes an offence
- Whether sufficient grounds exist to proceed against the accused
A mere reproduction of allegations without judicial scrutiny is not sufficient.
Vijay Dhanuka and Others v. Najima Mamtaj and Others
(2014) 14 SCC 638
The Supreme Court categorically held that:
- Conducting an inquiry or directing an investigation under Section 202 CrPC is mandatory when the accused resides beyond the territorial jurisdiction of the Magistrate
- Non-compliance vitiates the order issuing process
Birla Corporation Limited v. Adventz Investments and Holding Limited
(2019) 16 SCC 610
The Court observed that:
- Issuance of process is a serious matter
- It should not be done mechanically or used as an instrument of harassment
- Lack of material particulars and non-application of mind cannot be dismissed as a mere procedural irregularity
Abhijeet Pawar v. Hemant Madhukar Nimbalkar and Another
(2017) 3 SCC 528
The Supreme Court held that:
- If the mandatory requirements of Section 202 CrPC are not followed
- The superior court can direct the Magistrate to reconsider the matter afresh
- Fresh orders must be passed in compliance with Section 202 CrPC
Impact of the 2005 Amendment to Section 202 CrPC
The 2005 amendment inserted the word “shall” in Section 202(1), making the inquiry or investigation mandatory when the accused resides outside the Magistrate’s jurisdiction.
This amendment was introduced specifically to:
- Prevent false implication
- Curb abuse of criminal law
- Protect the dignity and reputation of accused persons
Why Issuance of Process Requires Judicial Caution
Being summoned as an accused in a criminal case can severely impact:
- Personal dignity
- Social reputation
- Professional standing
The law recognizes that false complaints are sometimes filed to harass individuals living far away from the place of complaint. Section 202 CrPC ensures that courts act as gatekeepers, filtering out cases that lack sufficient grounds at the very threshold.
Conclusion
Summoning an accused person in a criminal case is not a trivial procedural step. It carries serious legal and social consequences. Section 202 CrPC serves as a vital safeguard, ensuring that innocent persons are not dragged into criminal litigation without proper scrutiny.
After the 2005 amendment, it is mandatory for the Magistrate to conduct an inquiry or direct an investigation before issuing process against an accused residing beyond the court’s territorial jurisdiction. Courts have consistently reaffirmed that non-compliance with this provision is not a curable defect.
Ultimately, judicial application of mind under Section 202 CrPC protects not only the accused but also the credibility of the criminal justice system.
