Law and You >Procedural Laws > BNSS > Issue of Process (S. 227 BNSS)
List of Sub-Topics:
- Introduction
- Issue of Process Against Accused (S. 227(1))
- Pre-Condition before the Issue of Process (S. 227(2))
- Copy of Complaint with Summons/Warrant (S. 227(3))
- Pyament of Requisite Process Fees (S. 227(4))
- Saving Clause (S. 227(5))
- Magistrate may Dispense with Personal Attendance of Accused (S. 228)
- Conclusion
- Related Topics
The issue of process against an accused is an important stage in the initiation of criminal proceedings under the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS). Section 227 lays down the procedure to be followed by a Magistrate after taking cognizance of an offence and being satisfied that there is sufficient ground for proceeding against the accused. At this stage, the Magistrate determines the appropriate process to secure the accused’s appearance before the court.
The provision distinguishes between a summons-case and a warrant-case. In a summons-case, the Magistrate is required to issue a summons to the accused, whereas in a warrant-case, the Magistrate may issue either a warrant or, if considered appropriate, a summons. The provision also incorporates procedural safeguards, including the requirement concerning the filing of a list of prosecution witnesses and the furnishing of a copy of a written complaint along with the summons or warrant where applicable.
Section 227 further recognises the use of electronic means for issuing summons and warrants, reflecting the BNSS’s emphasis on the modernisation and efficiency of criminal procedure. The provision therefore seeks to balance the need to secure the presence of the accused with procedural fairness and the proper administration of criminal justice.
Issue of Process (S. 227 BNSS):
Issue of Process Against Accused (S. 227(1) BNSS):
According to Section 227(1) BNSS, if in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding, and the case appears to be—
(a) a summons-case, he shall issue summons to the accused for his attendance; or
(b) a warrant-case, he may issue a warrant, or, if he thinks fit, a summons, for causing the accused to be brought or to appear at a certain time before such Magistrate or (if he has no jurisdiction himself) some other Magistrate having jurisdiction:
Provided that summons or warrants may also be issued through electronic means.
This provision deals with the issue of process against an accused after a Magistrate takes cognizance of an offence. In simple terms, once the Magistrate examines the case and finds sufficient grounds to proceed, the Magistrate decides whether to call the accused by summons or warrant, depending on the nature of the case.
The first requirement is that the Magistrate taking cognizance must be satisfied that there is sufficient ground for proceeding against the accused. The Magistrate is not required to decide the guilt of the accused at this stage; the question is only whether there is enough basis to proceed with the case.
Under Section 227(a) BNSS, if the case is a summons-case, the Magistrate shall issue a summons to the accused. Under Section 227(b) BNSS, if the case is a warrant-case, the Magistrate has greater discretion. The Magistrate may issue a warrant or, if considered appropriate, a summons to secure the accused’s attendance. Thus, in a warrant-case, the Magistrate does not necessarily have to issue a warrant. Depending on the circumstances, a summons may also be sufficient. The summons or warrant directs the accused to be brought before, or to appear before the Court.
The proviso introduces an important technological aspect. It provides that summons or warrants may also be issued through electronic means. This facilitates the modern and efficient administration of criminal justice by allowing processes to be transmitted electronically in accordance with the applicable procedure.
In Lal Ji Verma v. State of U.P., 18 May, 2023 case, the Allahabad High Court opined that summoning an accused is a serious matter and the summoning order must reflect that the Magistrate has applied his mind to the facts of the case and the law applicable thereto.
In Ramgopal Ganpatrai Ruia v. The State of Bombay, AIR 1958 SC 97 case, the Supreme Court held that the magistrate holding the preliminary inquiry has to be satisfied that a prima facie case is made out against the accused by the evidence of witnesses entitled to a reasonable degree of credit, and unless he is so satisfied, he is not to commit.
Pre-Condition before the Issue of Process (S. 227(2) BNSS):
According to Section 227(2) BNSS, no summons or warrant shall be issued against the accused under sub-section (1) until a list of the prosecution witnesses has been filed.
This provision means that the Magistrate cannot issue a summons or warrant to the accused until the prosecution has first filed a list of its witnesses. The prosecution is required to identify the witnesses whom it proposes to rely upon in the case. Only after this list of prosecution witnesses has been filed can the Magistrate proceed to issue the summons or warrant against the accused under sub-section (1). The main purpose is to ensure procedural fairness and transparency. It prevents the accused from being called before the court without the prosecution first disclosing the witnesses it intends to rely upon.
In Fakirappa v. Shiddalingappa, 2002 CRILJ 1926 case, the Karnataka High Court held that Section 204(2) of the CrPC (S. 228(2) BNSS) is mandatory in nature commanding absolute compliance.
Copy of Complaint with Summons/Warrant (S. 227(3) BNSS):
According to Section 227(3) BNSS, in a proceeding instituted upon a complaint made in writing, every summons or warrant issued under sub-section (1) shall be accompanied by a copy of such complaint.
When a person files a written complaint alleging that another person has committed an offence, the Magistrate may, after taking cognizance and finding sufficient grounds to proceed, issue a summons or warrant against the accused. In such a case, the accused should not receive merely the summons or warrant. A copy of the written complaint must also be supplied along with it.
In Ram Narain v. Bishamber Nath, AIR 1961 P&H 171, the Punjab and Haryana High Court held that the provisions of Section 204(1B) CrPC (S. 228(3) BNSS) are merely directory in the sense that failure to attach a copy of the complaint with the summonses does not by itself completely invalidate or nullify the issue of the process and the supply of such a copy to the accused on or before his appearance though it was not attached with the summonses, may cure the defect.
Pyament of Requisite Process Fees (S. 227(4) BNSS):
According to Section 227(4) BNSS, when by any law for the time being in force any process-fees or other fees are payable, no process shall be issued until the fees are paid and, if such fees are not paid within a reasonable time, the Magistrate may dismiss the complaint.
This provision means that if the law requires payment of process fees or other prescribed fees before a summons, warrant, or other process can be issued, the required fee must be paid first. If such fees are not paid within a reasonable time, the Magistrate may dismiss the complaint.
Process fees are charges payable for issuing or serving a legal process, such as a summons or warrant. They are intended to cover the procedural expenses associated with taking such steps.
In Ayodya Printers Ltd v. State of Kerala on 5 August, 2014 case, the Kerala High Court held that Sub section (4) of Section 204 of the Code (S. 228(4) BNSS) provides that no process shall be issued by the court until the process-fees or other fees payable as per any law for the time being in force are paid. Sub section (4) of Section 204 of the Code (S. 228(4) BNSS) further provides that if process-fees or other fees payable are not paid within a reasonable time, the Magistrate may dismiss the complaint. Thus, it is clear from the provisions of Sub section (4) of Section 204 of the Code (S. 228(4) BNSS) that the complainant is bound to pay process-fees or other fees, when by any law for the time being in force any process-fees or other fees are payable, as a condition precedent for the court to issue process against the accused for the appearance of the accused before the court or for causing the production of the accused before the Court. The court is having the discretion to dismiss the complaint if process-fees or other fees payable are not paid within a reasonable time. So, there can be no ambiguity with regard to the proposition that the court is vested with the power and discretion to dismiss the complaint under Section 204 (4) of the Code (S. 228(4) BNSS), if the complainant fails to pay the process-fees or other fees payable under any law for the time being in force within a reasonable time. Court further clarified that It is implied from sub section (5) of Section 204 of the Code (S. 228(5) BNSS) that the provisions of Section 204 (4) of the Code mandating the complainant to pay process-fees or other fees payable under any law for the time being in force and the discretion of the court to dismiss the complaint if process-fees are not paid within a reasonable time, are not applicable under Section of the Code (S. 90 BNSS). If that be so, there is no need to pay process-fees or other fees for issuing process under Section 87(b) of the Code (S. 90(b) BNSS).
Saving Clause (S. 227(5) BNSS):
According to Section 227(5) BNSS, nothing in this section shall be deemed to affect the provisions of section 90.
This provision is a saving clause. The provision preserves the operation of Section 90 BNSS, which deals with the circumstances in which a warrant may be issued in lieu of, or in addition to, a summons.
According to this Sub-Section, whatever is provided in the present section does not override, restrict, or take away the powers or procedure provided under Section 90 of the BNSS. In other words, Section 90 continues to operate independently, even though the present section contains provisions regarding the issue of summons or warrants.
Example: Suppose the Magistrate is dealing with a case where ordinarily a summons would be issued. If the circumstances satisfy the requirements of Section 90, the Magistrate may still exercise the power available under Section 90.
Magistrate may Dispense with Personal Attendance of Accused (S. 228 BNSS):
According to Section 228(1) BNSS, whenever a Magistrate issues a summons, he may, if he sees reason so to do, dispense with the personal attendance of the accused and permit him to appear by his advocate.
According to Section 228(2) BNSS, but the Magistrate inquiring into or trying the case may, in his discretion, at any stage of the proceedings, direct the personal attendance of the accused, and, if necessary, enforce such attendance in the manner hereinbefore provided.
This provision gives the Magistrate discretion to exempt the accused from personally appearing before the court when a summons has been issued. Instead, the accused may be permitted to appear through an advocate.
Normally, when a Magistrate issues a summons, the accused is required to appear before the court. However, if the Magistrate considers that there is sufficient reason, the Magistrate may dispense with the personal attendance of the accused, while retaining the Magistrate’s power to require the accused’s personal presence whenever necessary.
Conclusion:
Section 227 of the Bharatiya Nagarik Suraksha Sanhita, 2023, provides an important procedural framework for securing the appearance of an accused once the Magistrate is satisfied that there are sufficient grounds to proceed with the case. By distinguishing between summons-cases and warrant-cases, the provision gives the Magistrate an appropriate mechanism for ensuring the accused’s attendance while allowing judicial discretion where necessary. The procedural safeguards relating to the filing of the prosecution witness list, furnishing a copy of the written complaint, payment of prescribed process fees, and issuance of processes through electronic means further strengthen the fairness and efficiency of criminal proceedings.
Section 228 BNSS, the Court may dispense with the personal attendance of the accused and permit him to appear by his advocate.