Section 200

(a) Statutory Requirements – Sabitha Ramamurthy v RBS Channabasavardhya

[AIR 2006 SC 3086] – Para 7 – In a case where the court is required to issue summons
which would put the accused to some sort of harassment, the court should insist strict
compliance with the statutory requirements. In terms of s200 of the Code, the complainant is
bound to make statements on oath as to how the offence has been committed and how the
accused persons are responsible thereof. In the event, ultimately, the prosecution is found to
be frivolous or otherwise mala fide, the court may direct registration of case against the
complainant for mala fide prosecution of the accused.
(b) Objective of examination of complainant – Shankar Finance & Investments v
State of AP [(2008) 8 SCC 536] – It was held that the Magistrate has to examine the
complainant to satisfy herself about the existence of a prima facie case against the person
accused of the offence and to ensure that such person is not harassed by false and vexatious
complaints by issue of process. (Paras 14, 15 and 16)
(c) Whether a prescribed format of complaint is required - Section 2(d) - Mohd.
Yousuf v Afaq Khan [(2006) 1 SCC 627] – It was held that the nomenclature of a petition
is inconsequential. There is no particular format of a complaint. A petition addressed to the
Magistrate containing an allegation that an offence has been committed, and ending with a
prayer that the culprits be suitable dealt with.
(d) Existence of allegations - AK Jain v State of Sikkim – 1991 SCC OnLine Sikk 4 -
Para 3 - An order summoning a person to appear in a Court of law to answer a criminal charge
entails serious consequences. Such an order cannot be passed without the sanction of law.
So issue of process against an accused person against whom no allegations have been made
in the complaint, nor is there any evidence or materials to show his involvement in an offence,
is certainly an abuse of the process of the Court, for, in that case, there can be no occasion
for the Magistrate of being of the opinion that there is sufficient ground for proceeding, so as
to justify the issue of the process against him.
Section 202
(a) Scope of enquiry – The scope of enquiry under this section is restricted only to finding
out the truth or otherwise of the allegations made in the complaint in order to determine
whether process should be issued or not under section 204 of the CrPC or whether the
complaint should be dismissed by resorting to section 203 of the CrPC on the footing that
there is no sufficient ground for proceeding on the basis of the statements of the complainant
and of his witness, if any.
(i) National Bank of Oman v Barakara Abdul Aziz [(2013) 2 SCC 488] – “Para 9 - The
scope of enquiry under this section is restricted only to finding out the truth or otherwise of
the allegations made in the complaint in order to determine whether process should be issued
or not. Investigation under s202 CrPC is different from the investigation contemplated in s156
as it is only for holding the Magistrate to decide whether or not there is sufficient ground for
him to proceed further. The scope of enquiry under s202 CrPC is, therefore, limited to the
ascertainment of truth or falsehood of the allegations made in the complaint:
(i) on the materials placed by the complainant before the court;
(ii) for the limited purpose of finding out whether a prima facie case for issue of process has
been made out; and
(iii) for deciding the question purely from the point of view of the complainant without at all
adverting to any defence that the accused may have.”
(ii) Mehmood Ul Rehman v Khazir Mohammad Tunda [(2015) 12 SCC 420] –
“Para 2 - Chapter XV CrPC deals with the further procedure for dealing with “Complaints to
Magistrate”, Under Section 200 CrPC, the Magistrate, taking cognizance of an offence on a
complaint, shall examine upon oath the complaint and the witnesses, if any, present and the
substance of such examination should be reduced to writing and the same shall be signed by
the complainant, the witnesses and the Magistrate. Under Section 202 CrPC, the Magistrate,
if required, is empowered to either inquire into the case himself or direct an investigation to
be made by a competent person “for the purpose of deciding whether or not there is sufficient
ground for proceeding”. If, after considering the statements recorded under Section 200 CrPC
and the result of the inquiry or investigation under Section 202 CrPC, the Magistrate is of the
opinion that there is no sufficient ground for proceeding, he should dismiss the complaint,
after briefly recording the reasons for doing so.
Para 3 – Chapter XVI CrPC deals with “Commencement of Proceedings before Magistrate”. If,
in the opinion of the Magistrate taking cognizance of an offence, there is sufficient ground for
proceeding, the Magistrate has to issue process under Section 204(1) CrPC for attendance of
the accused.”
NOTE - 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.
(b) Cases in which inquiry mandatory – Enquiry is mandatory in the cases where the
accused is beyond the jurisdiction of the court. Otherwise it is upto the discretion of the
Magistrate. If on the basis of the examination of the complainant, the Magistrate is of the
opinion that there is no sufficient grounds for proceedings, then under s202 the Magistrate
may postpone the issuance and hold an enquiry as she thinks fit.
(i) Vijay Dhanuka v Najima Mamtaj [(2014) 14 SCC 638] – “Para 12 - The words “and
shall, in a case where the accused is residing at a place beyond the area in which he exercises
his jurisdiction” were inserted by Section 19 of the Code of Criminal Procedure (Amendment)
Act (Central Act 25 of 2005) w.e.f. 23-6-2006. The aforesaid amendment, in the opinion of
the legislature, was essential as false complaints are filed against persons residing at far off
places in order to harass them. The note for the amendment reads as follows:
“False complaints are filed against persons residing at far off places simply to harass
them. In order to see that innocent persons are not harassed by unscrupulous persons,
this clause seeks to amend sub-section (1) of Section 202 to make it obligatory upon
the Magistrate that before summoning the accused residing beyond his jurisdiction he
shall enquire into the case himself or direct investigation to be made by a police officer
or by such other as he thinks fit, for finding out whether or not there was sufficient
ground for proceeding against the accused.”
The use of the expression “shall” prima facie makes the inquiry or the investigation, as the
case may be, by the Magistrate mandatory. The word “shall” is ordinarily mandatory but
sometimes, taking into account the context or the intention, it can be held to be directly. The
use of the word “shall” in all circumstances is not decisive. Bearing in mind the aforesaid
principle, when we look to the intention of the legislature, we find that it is aimed to prevent
innocent persons from harassment by unscrupulous persons from false complaints. Hence, in
our opinion, the use of the expression “shall” and the background and the purpose for which
the amendment has been brought, we have no doubt in our mind that inquiry or the
investigation, as the case may be, is mandatory before summons are issued against the
accused living beyond the territorial jurisdiction of the Magistrate.”
(ii) Abhijit Pawar v Hemant Madhukar Nimbalkar [(2017) 3 SCC 528]
“Para 23 – Admitted position in law is that in those cases where the accused is residing at a
place beyond the area in which the Magistrate exercises his jurisdiction, it is mandatory on
the part of the Magistrate to conduct an enquiry or investigation before issuing the process.
Section 202 CrPC was amended in the year 2005 by the Code of Criminal Procedure
(Amendment) Act, 2005, with effect from 22-6-2006 by adding the words “and shall, in a case
where the accused is residing at a place beyond the area in which he exercises his jurisdiction”.
There is a vital purpose or objective behind this amendment, namely, to ward off false
complaints against such persons residing at far-off places in order to save them from
unnecessary harassment. Thus, the amended provision casts an obligation on the Magistrate
to conduct enquiry or direct investigation before issuing the process, so that false complaints
are filtered and rejected. The aforesaid purpose is specifically mentioned in the note appended
to the Bill proposing the said amendment.”
Section 203
(i) Arunangsu Basu Roy v Deepak Layalika – [2003 SCC OnLine Cal 193] – “Sufficient
materials” at the time of issuance of process cannot be equated with the materials required
for the purpose of trial. If in the opinion of the learned Magistrate the evidence is not palpably
false and some offence has been made out then it is enough for issuing process. The learned
Magistrate is supposed to do at the time of exercising his power under s203 of the CrPC is
neither to scrutinise the evidence not to weigh the probability and improbability with the
purpose of proving the case but simply to find out that whether the materials which have been
placed before him by way of the petition of complaint.
Section 204
(a) Application of Mind by the Magistrate – The SC held that summoning of an accused
in a criminal case is a serious matter and that the order of the Magistrate summoning the
accused must reflect that he has applied his mind to the facts of the case and law governing
the issue.
(i) Pepsi Foods Ltd v Special Judicial Magistrate – [(1998) 5 SCC 749] – “Para 28 –
Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set
into motion as a matter of course. It is not that the complainant has to bring only two
witnesses to support his allegations in the complainant to have the criminal law set into
motion. The order of the Magistrate summoning the accused must reflect that he has applied
his mind to the facts of the case and the law applicable thereto. He has to examine the nature
of allegations made in the complaint and the evidence both oral and documentary in support
thereof and would that be sufficient for the complainant to succeed in brining charge home
to the accused. It is not that the Magistrate is a silent spectator at the time of recording of
preliminary evidence before summoning of the accused. The Magistrate has to carefully
scrutinise the evidence brought on record and may even himself put questions to the
complainant and his witnesses to elicit answers to find out the truthfulness of the allegations
or otherwise and then examine if any offence is prima facie committed by all or any of the
accused.”
(ii) Followed by GHCL Employees Stock Option Trust v India Infoline Limited
[(2013) 4 SCC 505]
“Para 13 – There is no dispute with regard to the legal proposition that the case of breach of
trust or cheating are both a civil wrong and a criminal offence, but under certain situations
where the act alleged would predominantly be a civil wrong, such an act does not constitute
a criminal offence.
Para 14 – Be that as it may, as held by this Court, summoning of accused in a criminal case
is a serious matter. Hence, criminal law cannot be set into motion as a matter of course. The
order of the Magistrate summoning the accused must reflect that he has applied his mind to
the facts of the case and the law applicable thereto. The Magistrate has to record his
satisfaction with regard to the existence of a prima facie case on the basis of specific
allegations made in the complaint supported by satisfactory evidence and other material on
record.”
(iii) Mehmood Ul Rehman v Khazir Mohammad Tunda [(2015) 12 SCC 420] – “Para
22 – The step taken by the Magistrate under Section 190(1)(a) CrPC followed by Section 204
CrPC 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. The
satisfaction on the ground for proceeding would mean that the facts alleged in the complaint
would constitute an offence, and when considered along with the statements recorded, would,
prima facie, make the accused answerable before the court. No doubt, no formal order or a
speaking order is required to be passed at that stage. The Code of Criminal Procedure requires
speaking order to be passed under Section 203 CrPC when the complaint is dismissed and
that too the reasons need to be stated only briefly. In other words, the Magistrate is not to
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
and when considered along with the statements recorded and the result of inquiry or report
of investigation under Section 202 CrPC, if any, the accused is answerable before the criminal
court, there is ground for proceeding against the accused under Section 204 CrPC, by issuing
process for appearance. The application of mind is best demonstrated by disclosure of mind
on the satisfaction. If there is no such indication in a case where the Magistrate proceeds
under Section 190/204 CrPC, the High Court under Section 482 CrPC is bound to invoke its
inherent power in order to prevent abuse of the power of the criminal court. 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.”
(iv) Bhushan Kumar v State (NCT of Delhi) [(2012) 5 SCC 424] – “Para 11 – In Chief
Enforcement Officer v. Videocon International Ltd. (2008) 2 SCC 492 (SCC p. 499, para 19)
the expression “cognizance” was explained by this Court as “it merely means ‘become aware
of’ and when used with reference to a court or a Judge, it connotes ‘to take notice of judicially’.
It indicates the point when a court or a Magistrate takes judicial notice of an offence with a
view to initiating proceedings in respect of such offence said to have been committed by
someone.” It is entirely a different thing from initiation of proceedings; rather it is the condition
precedent to the initiation of proceedings by the Magistrate or the Judge. Cognizance is taken
of cases and not of persons. Under Section 190 of the Code, it is the application of judicial
mind to the averments in the complaint that constitutes cognizance. At this stage, the
Magistrate has to be satisfied whether there is sufficient ground for proceeding and not
whether there is sufficient ground for conviction. Whether the evidence is adequate for
supporting the conviction can be determined only at the trial and not at the stage of enquiry.
If there is sufficient ground for proceeding then the Magistrate is empowered for issuance of
process under Section 204 of the Code.”
(v) Punjab National Bank v Surendra Prasad Sinha [1993 Supp (1) SCC 499] – It
was held that the issuance of process should not be mechanical not should be made an
instrument of oppression or needless harassment.
(b) Detailed order not required - At the state of issuance of process of the accused, the
Magistrate is not required to record detailed orders. But based on the allegation made in the
complaint or the evidence led in support of the same, the Magistrate is to be prima facie
satisfied that there are sufficient grounds for proceeding against the accused.
(i) Jagdish Ram v State of Rajasthan [(2004) 4 SCC 432] – “Para 10 – The contention
urged is that though the trial court was directed to consider the entire material on record
including the final report before deciding whether the process should be issued against the
appellant or not, yet the entire material was not considered. From perusal of order passed by
the Magistrate it cannot be said that the entire material was not taken into consideration. The
order passed by the Magistrate taking cognizance is a well-written order. The order not only
refers to the statements recorded by the police during investigation which led to the filing of
final report by the police and the statements of witnesses recorded by the Magistrate under
Sections 200 and 202 of the Code but also sets out with clarity the principles required to be
kept in mind at the stage of taking cognizance and reaching a prima facie view. At this stage,
the Magistrate had only to decide whether sufficient ground exists or not for further
proceeding in the matter. It is well settled that notwithstanding the opinion of the police, a
Magistrate is empowered to take cognizance if the material on record makes out a case for
the said purpose. The investigation is the exclusive domain of the police. The taking of
cognizance of the offence is an area exclusively within the domain of a Magistrate. At this
stage, the Magistrate has to be satisfied whether there is sufficient ground for proceeding and
not whether there is sufficient ground for conviction. Whether the evidence is adequate for
supporting the conviction, can be determined only at the trial and not at the stage of inquiry.
At the stage of issuing the process to the accused, the Magistrate is not required to record
reasons. (Dy. Chief Controller of Imports and Exports v Roshanlal Agarwal.)”
(c) When can the issue of process be quashed – When the court is satisfied that the
criminal proceedings amount to an abuse of process of law or that it amounts to bringing
pressure upon the accused, in exercise of the inherent powers, such proceedings can be
quashed.
(i) Smt. Nagawwa v Veeranna Shivalingappa Konjalgi [(1976) 3 SCC 736] – “Para 5
– The magistrate has been given an undoubted discretion in the matter and the discretion has
to be judicially exercised by him. Once the magistrate has exercised his discretion it is not for
the High Court, or even this Court, to substitute its own discretion for that of the magistrate
or to examine the case on merits with a view to find out whether or not the allegations in the
complaint, if proved, would ultimately end in conviction of the accused. These considerations,
in our opinion, are totally foreign to the scope and ambit of an inquiry under Section 202 of
the Code of Criminal Procedure which culminates into an order under Section 204 of the Code.
Thus it may be safely held that in the following cases an order of the magistrate issuing
process against the accused can be quashed or set aside:
(1) where the allegations made in the complaint or the statements of the witnesses
recorded in support of the same taken at their face value make out absolutely no case
against the accused or the complaint does not disclose the essential ingredients of an
offence which is alleged against the accused;
(2) where the allegations made in the complaint are patently absurd and inherently
improbable so that no prudent person can ever reach a conclusion that there is
sufficient ground for proceeding against the accused;
(3) where the discretion exercised by the magistrate in issuing process in capricious
and arbitrary having been either on no evidence or on materials which are wholly
irrelevant or inadmissible; and
(4) where the complaint suffers from fundamental legal defects, such as, want of
sanction, or absence of a complaint by legally competent authority and the like.”