· This provision empowers any Magistrate, upon receiving a complaint of an offence to postpone the issuance of process against the accused, if deemed fit, and instead, conduct an inquiry either by himself of through a police officer, or any other deemed fit, to identify if there is sufficient ground to proceed with the case against the accused, provided the offence is either cognizable by the magistrate or made under S. 192 [1] Now, prior to summoning a witness residing beyond the court’s jurisdiction, it is mandatory for the magistrate to conduct such an inquiry.[2]
· There exist two situations wherein such a postponement cannot be made:
(a) If the offence in the issue is exclusively triable by the Sessions Court
(b) Where the Court has not made the complaint, unless the Complainant and the witness present have been examined on oath under S. 200
· Further, an inquiry under sub- section (1), the Magistrate may, if he thinks fit, take evidence of witnesses on oath: Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath.[3]
Scope and Application
The enquiry conducted under this provision is limited in scope, as it is to find out whether a prima faciecase for issue of process has been made out on the materials place by the complainants without averting to any defence that the accused may have and the accused is not entitled to be heard.[4] The object of an investigation under S. 202 is to assist the Magistrate in completing proceedings already instituted upon a complaint before him.[5]
This provision has given complete discretion in the matter of ordering an inquiry, but the discretion should be exercised judicially. It is no longer necessary to record the reasons for ordering an inquiry under S. 202.
- Non-Compliance:
The provisions of S. 202 of the Cr.P.C. are directory and not mandatory and, therefore, non- compliance, of any of the said provisions would not vitiate the order of issuance of process.[6]
- In an inquiry under S. 202 personal examination of witnesses is necessary and verbatim record of evidence is to be maintained. Further, affidavits are not permissible as evidence under S. 202.[7]
Cases:
A) Rosy v. State of Kerala[8] (2000)
This case demanded the understanding of S. 200 and S. 202 of Cr.P.C. As under S. 200, on the receiving of a complaint the concerned Magistrate can take cognizance of the matter and thus, issue process in that regard.
The brief facts of the case are as follows-
The Excise Inspector had filed a complaint before the Magistrate in Thrissur for offences which were exclusively triable by the Court of Sessions. Following this the Magistrate committed this case to the Sessions Court. Further, the witnesses were examined by the prosecution and the accused were questioned under Section 313 Cr.P.C, re- calling of witnesses and more ecording of statements u/S. 313. The accused examined four witnesses. At that juncture, an issue was raised arguing that the committal orderwas flawed because the Magistrate did not follow the procedure prescribed in the proviso to S. 202(2). The Supreme Court in this case, observed as follows-
“It is only if the Magistrate decides to hold the inquiry the provision to sub- section (2) of S. 202 would come into operation. If the offence is triable exclusively by the Sessions Court, the Magistrate himself has to hold the inquiry and no direction for further investigation b y police shall be made. Inquiry can be held for recording evidence on oath and if the Magistrate deems fit, sub- section (2) of S. 202 give discretion to the Magistrate to record evidence of witnesses on Oath. To this discretionary power, the proviso carves out an exception. It provides that for the offence triable exclusively by the court of sessions, the Magistrate shall call upon the complainant to produce all his witnesses and examine them on oath.”
Further, the case held that non- compliance with S. 202(2) proviso does not vitiate the trial unless prejudice is caused to accused is established. Also, if objection with regard to non- compliance is not raised in the earliest stage, fresh enquiry is not necessary.
B) Jharnail Singh v. Haryana (2003)
The issue in this case was whether a Magistrate who had declined to issue a process against an individual during the stage of enquiry as under S. 202, can later on summon the same person under S. 319.
While answering the issue, The Court opined that –
" An inquiry under Section 202 of the Code is not in the nature of a trial for there can be in law only after process is issued to the accused. The said proceedings are not strictly proceedings between the complainant and the accused. A person against whom a complaint is filed does not become an until it is decided to issue process against him. Even if he participates in the proceedings under S. 202 of the Code, he does so not as an accused but as a member of the public. The object of the inquiry under S.202 is the ascertainment of the fact whether the complaint has any valid foundation calling for the issue of process to the person complained against or whether it is a baseless one on which no action need be taken. The section does not require any adjudication to be made about the guilt or otherwise of the person against whom the complaint is preferred. Such a person cannot even be legally called to participate in the proceedings under S. 202.”[9]
- [1] S. 202(1) of Cr.P.C., 1974
- [2] S. 19 of Cr.P.C. (Amendment) Act, 2005 ; Murali Krishnan, Enquiry by Magistrate under Section 202 CrPC and Issuance of Process: What Supreme Court held, BAR AND BENCH ( May 13, 2019, 9:45 A.M. IST), https://www.barandbench.com/news/enquiry-magistrate-section-202-crpc-issuance-process-supreme-court-held
- [3] S. 202(2) of the Code of Criminal Procedure, 1973
- [4]Nagawwa v. VeerannashivalingappaKonjalgi., AIR 1976 SC 1947
- [5] Lakshmi – Narayana., AIR 1976 SC 1672
- [6] Rajiv Banga v. L. and T. Finance Co. Ltd., 2011 CrLJ 1806 ( 1810) ( Bom)
- [7] Hari Singh v. State of U.P., 1992 CrLJ 1802
- [8] Rosy v. State of Kerala., 2000 CrLJ 930: 2000
- [9]Jarnail Singh v. State of Haryana., AIR 2003 SC 4081
