Section 202 CrPC - Postponement of Issue of Process and Section 225 BNSS
Section 202 of the Code of Criminal Procedure, 1973 governed a Magistrate's preliminary inquiry before issuing process in a private complaint. Its corresponding provision under the Bharatiya Nagarik Suraksha Sanhita, 2023 is Section 225, in force from 1 July 2024, subject to statutory savings for pending proceedings.
What does postponement of issue of process mean?
"Issue of process" means the court's issuance of summons or, where legally appropriate, a warrant requiring an accused to appear. Postponement means that the Magistrate defers that step to examine whether the complaint provides sufficient grounds for proceeding. This is a screening stage, not a finding of guilt.
Section 202 of the Code of Criminal Procedure, 1973
Section 202, titled "Postponement of issue of process", contained three subsections:
Subsection (1): Inquiry or investigation
A Magistrate receiving a complaint of an offence of which the Magistrate is authorised to take cognizance, or a complaint transferred under Section 192 CrPC, could postpone process and inquire personally or direct an investigation by a police officer or another suitable person. Where the accused resided beyond the Magistrate's territorial jurisdiction, postponement was mandatory.
The proviso prohibited directing such an investigation where the offence appeared exclusively triable by the Court of Session, or, for a complaint not made by a court, until the complainant and available witnesses had been examined on oath under Section 200 CrPC.
Subsection (2): Evidence on oath
The Magistrate could record evidence of witnesses on oath during the inquiry. For offences exclusively triable by the Court of Session, the Magistrate had to require the complainant to produce all witnesses and examine them on oath.
Subsection (3): Powers of non-police investigator
A person other than a police officer appointed to investigate had the powers of an officer in charge of a police station for that investigation, except the power to arrest without warrant.
Legislative history: The mandatory out-of-jurisdiction accused requirement was inserted by the Code of Criminal Procedure (Amendment) Act, 2005 (Act 25 of 2005), Section 19, effective 23 June 2006.
Current law: Section 225 of the Bharatiya Nagarik Suraksha Sanhita, 2023
Section 225 BNSS retains the central safeguards and the three-part structure of former Section 202 CrPC. It allows a Magistrate to defer process, requires that deferral for an accused residing outside the Magistrate's jurisdiction, and permits an inquiry or appropriately directed investigation to assess sufficient grounds for proceeding.
The updated statutory cross-references are Section 212 BNSS for a complaint made over to another Magistrate and Section 223 BNSS for examination of the complainant and witnesses. The restrictions on directing investigation, the special treatment of offences exclusively triable by the Court of Session, and the bar on warrantless arrest by a non-police investigator remain.
Read the enacted provision in the official BNSS text (India Code, PDF).
How the Magistrate applies the provision
- Receipt of complaint: The Magistrate considers the complaint and the relevant preliminary examination requirements, including Section 223 BNSS where applicable.
- Territorial check: If the proposed accused lives outside the Magistrate's jurisdiction, the statutory preliminary scrutiny cannot simply be skipped.
- Inquiry or investigation: The Magistrate conducts an inquiry or, subject to the provisos, directs a limited investigation to assess sufficient grounds for proceeding.
- Witness evidence: Witnesses may be examined on oath, and all complainant witnesses must be examined on oath where the alleged offence is exclusively triable by the Court of Session.
- Decision: Depending on the materials and applicable law, the complaint may be dismissed under Section 226 BNSS or process may be issued under Section 227 BNSS.
Difference between a preliminary inquiry and a criminal trial
The inquiry under Section 225 BNSS is limited to the threshold question whether sufficient grounds exist to proceed against the accused. It is not intended to determine guilt or finally evaluate the defence. The Magistrate must apply judicial mind to the complaint and supporting material before deciding the next procedural step.
Does Section 202 CrPC still apply?
The BNSS replaced the CrPC from 1 July 2024. However, Section 531 BNSS contains repeal and savings provisions relevant to appeals, applications, trials, inquiries and investigations pending immediately before commencement. The applicable procedural statute should therefore be checked against the filing and pendency history of each matter, rather than assuming every older proceeding automatically shifted to the BNSS.
Frequently asked questions
Is inquiry compulsory when the accused lives outside the jurisdiction?
Yes. The statutory requirement to postpone process and conduct an inquiry or direct a permissible investigation applies where the accused resides outside the area of the Magistrate's jurisdiction.
Can the Magistrate direct police investigation in every complaint?
No. Section 225(1) BNSS contains restrictions, including for offences exclusively triable by the Court of Session and the requirement for prior examination on oath under Section 223 in non-court complaints.
What follows an unsuccessful preliminary inquiry?
If the Magistrate finds no sufficient ground for proceeding, dismissal under Section 226 BNSS may follow, with the reasons required by that provision.
Official legal references
- India Code - Bharatiya Nagarik Suraksha Sanhita, 2023
- Official BNSS full text - Sections 212, 223, 225, 226, 227 and 531
- Uttar Pradesh Police - CrPC and BNSS section correspondence
This article provides general legal information. Court procedure may depend on the complaint, offence, applicable special legislation and transitional provisions.