Section 202 of CrPC

Source: Uttarakhand High Court 

Why in News? 

Justice Ashish Naithani of the Uttarakhand High Court in the case of Bhim Singh v. Bhawan Dutt Bhatt (2026) held that the proviso to Section 202 of the Code of Criminal Procedure, 9173 (CrPC) imposes a mandatory obligation upon a Magistrate to postpone the issuance of process and either conduct an inquiry himself or direct investigation, before summoning an accused who resides beyond the territorial jurisdiction of the court. This requirement applies equally to complaints under Section 138 of the Negotiable Instruments Act ('NI Act') concerning dishonour of cheques. 

• Section 202 of CrPC corresponds to Section 223 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS).

What was the Background of Bhim Singh v. Bhawan Dutt Bhatt (2026) Case? 

• The case arose from a complaint filed under Section 138 of the NI Act before the Additional Chief Judicial Magistrate, Khatima, District Udham Singh Nagar. 
• The respondent alleged that he had paid a total sum of Rs. 20 lakhs in cash to the applicant for the construction of a residential house. 
• Upon the applicant's failure to carry out the construction, two cheques of Rs. 10 lakhs each were issued by the applicant to return the amount. 
• Both cheques were dishonoured on presentation due to insufficiency of funds. 
• After issuance of a statutory notice and non-payment, the respondent filed the complaint before the Khatima court. 
• The Magistrate issued summons against the applicant. 
• Notably, the applicant was a resident of District Nainital, which lies beyond the territorial jurisdiction of the Khatima court in District Udham Singh Nagar. 
• The applicant challenged the summons primarily on the ground of non-compliance with the mandatory procedure prescribed under Section 202 CrPC. 
• The core question before the High Court was whether the summoning order suffered from a fundamental legal infirmity under Section 482 CrPC warranting its quashing.

What were the Court's Observations? 

• The Court reiterated that Section 202 CrPC employs the term "shall" in its proviso concerning accused residing beyond the Magistrate's territorial jurisdiction, indicating a clear statutory mandate with no room for discretion. 
• Justice Naithani held that the procedural safeguard under Section 202 is not a mere formality but a substantive protection against mechanical summoning of persons who reside outside the court's jurisdiction. 
• The Court observed that the impugned summoning order dated 29.07.2022 made no reference to Section 202 CrPC, nor did it reflect that any inquiry or investigation was conducted prior to the issuance of process. 
• The order merely noted the allegations and proceeded to summon the applicant, without any application of judicial mind to the statutory requirement. 
• The Court held that such omission goes to the root of the matter and renders the summoning order legally unsustainable. 
• Justice Naithani underlined that the safeguard under Section 202 is equally applicable and equally mandatory in cases of cheque dishonour under Section 138 of the NI Act. 
• The Court concluded that continuation of the criminal proceedings would amount to permitting a prosecution founded upon an invalid exercise of jurisdiction. 
• Accordingly, both the summoning order and the pending criminal proceedings were quashed, with liberty granted to the respondent to proceed against the applicant afresh.

What is Section 223 BNSS, 2023? 

Basic Requirement: 

• When a complaint is filed before a Magistrate, the Magistrate must examine the complainant and any witnesses present under oath before taking cognizance of the offence. 
• The Magistrate must reduce the substance of such examination to writing and ensure it is signed by the complainant, witnesses, and the Magistrate himself. 

Key Procedural Safeguard — First Proviso: 

• No cognizance of an offence shall be taken by the Magistrate without giving the accused an opportunity of being heard. 
• This is a significant departure from the previous law under Section 200 of the Code of Criminal Procedure, which contained no such requirement. 

Exceptions to Examination Requirement — Second Proviso: 

• Where a complaint is made in writing, the Magistrate need not examine the complainant and witnesses if the complaint is made by a public servant acting in official capacity or by a Court. 
• Examination is also not required if the Magistrate transfers the case to another Magistrate under Section 212 for inquiry or trial. 

Transfer of Cases — Third Proviso: 

• If a Magistrate transfers a case to another Magistrate under Section 212 after examining the complainant and witnesses, the receiving Magistrate need not re-examine them. 

Special Protection for Public Servants — Sub-section (2): 

• Sub-section (2)(a) requires that before taking cognizance of a complaint against a public servant for offences committed during official duties, the public servant must be given an opportunity to make assertions about the incident. 
• Sub-section (2)(b) mandates that a report containing facts and circumstances of the incident must be received from the officer superior to such public servant before cognizance can be taken.