Chapter XVI Sections 204-210 vividly talks about the commencement of a proceeding before a magistrate. The proceedings begin with the issue of process by the magistrate who orders a warrant or a summon for the attendance of the accused in the court. The magistrate, however, cannot issue a warrant or summon before the filing of the list of prosecution witnesses.
The old code of CrPC, 1898 had a complex way of determining whether the magistrate shall issue a warrant or a summon in a particular case. It had to be looked up in the fourth column of the seventh schedule every time to determine which one had to be issued. Therefore, a simpler procedure was desirable so that warrants could be issued in warrant cases and summons in summon cases, unless otherwise ordered by the magistrate.
Issue of Process
The current code (code of 1973) is incorporated with the desired changes. Section 204 specifies that if a magistrate is of the opinion that he has to take cognizance of the offence committed by the accused, as per the police report or the complaint filed directly to the magistrate, and if there is adequate ground to proceed against the accused, the magistrate must issue in case of-
- Summon case- a summon for the attendance of accused or,
- Warrant case- a warrant for the accused to be brought or to appear at a specified time and date before the magistrate.
It must be noted that it is essential for a magistrate to apply his judicial mind to the materials filed and the accusations made against the accused as he cannot issue process unless he finds sufficient grounds to proceed in the complainant’s disposition. The magistrate need not list detailed reasons for issuing process against the accused if he believes to have adequate reasons to proceed. No warrants or summons can be issued to the accused before a list of prosecution witnesses has been filed.
If a proceeding is instituted by a complaint in writing, a copy of such complaint is also to be attached with every warrant or summon issued under this section. He has the right to hold the issue of process until any process-fees or any other fees are due by the complainant, is paid. If the due fees are not paid within a stipulated time, the magistrate has the authority to reject the complaint.
In the famous case of Nupur Talwar v. CBI and another, 2012 the apex court made it clear that any High Court or the Honourable Supreme court cannot question the decision of a magistrate to issue process based on the arguments that the reasons for the magistrate to issue process were good or bad, sufficient or insufficient when a revision petition is filed against such order. The high court or the Supreme court can only look into the fact that whether there was sufficient ground for the magistrate to issue process. The decision of the magistrate to issue process is not to be reasoned with and the magistrate need not even mention detailed reasons for issuing process, given that his decision is made by judiciously exercising his discretion. Therefore, the absence of reasons to issue process does not vitiate the order.
Issue of Process under Summon Cases
A Summon is a document, when served, obliges the concerned person to present himself before the court on the specified date and time and answer to the complaints made against him. Summon cases are cases in which the offence committed is punishable with imprisonment for a term of fewer than 2 years. These cases are less serious as compared to warrant cases and must be decided swiftly and quickly.
Section 204 (1)(a) of CrPC gives the powers to the magistrate to issue summons to the accused in summon cases. However, this is also backed by section 2(5) of the code which says that this section doesn’t affect the provisions of section 87. It provides that the magistrate is at the liberty to issue warrants in any case in which the code empowers him to issue summons for the attendance of the accused. The magistrate however needs to record his reasons in writing for the same.
Issue of Process under Warrant cases
A warrant case is one in which the offence is punishable with death, life imprisonment, or imprisonment for a term exceeding two years. A warrant is a document, issued by a magistrate that authorizes the police or any other body to make an arrest, search the premises, or carry out some other activity for the administration of justice.
The magistrate may issue such a warrant for the accused to be brought or present himself at the specified date and time as per the warrant. He can summon the accused before his court or some other magistrate if he has no jurisdiction on the case. A copy of the complaint is also to be attached to the warrant for the accused. It should be noted that article 361 of the Indian Constitution provides immunity to the President of the country and the Governor of the states and no process can be issued against them during the tenure of their office for arrest.
Exemption of personal attendance of the accused
Section 205 talks about the power of the magistrate to dispense with the personal attendance of the accused. The Magistrate can allow the accused to appear through his pleader and if there is adequate reason for doing so.
It is noteworthy that the magistrate cannot dispense with the personal attendance of the accused in warrant cases. It must also be noted that the said exemption is only from the initial appearance and not from the appearance in the final trial. A magistrate can also direct attendance of the accused at any point in the proceeding through the manner prescribed by the law.
The issue of process under section 204 can be done after the magistrate takes cognizance of the complaint filed to him or the allegations made in the police report. The process can be issued only after the filing of the witnesses by the prosecution. The magistrate can issue warrants and summons to the accused as he deems fit to ensure the attendance of the accused before the court and hold him answerable to the court. The magistrate is under no obligation to give detailed reasons for issuing the order.
The magistrate also has the power to postpone the issue of process under section 202 for further scrutiny of the complaint. He might probe into the case himself or order an investigation by the police. The objective behind the said investigation under section 202 is not to start afresh case but to aid the magistrate in completing the proceedings already instituted before him.
(Author: Shivani Agrawal, pursuing LLB from Faculty of Law, University of Delhi.)