Law and You >Procedural Laws > BNSS > Postponement of Issue of Process and Dismissal of Comlaint (Ss. 225 and 226 BNSS)
List of Sub-Topics:
- Introduction
- Postponement of Issue of Process (S. 225)
- Investigation before Cognizance of Complaint (S. 225(1))
- Evidence of Witness in Inquiry (S. 225(2))
- Power to Person other than Police officer to Investigate (S. 225(3))
- Dismissal of Complaint (S. 226)
- Conclusion
- Related Topics
The postponement of the issue of process is an important preliminary safeguard in complaint proceedings under the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS). Before issuing summons or warrants against an accused, the Magistrate may, and in certain circumstances must, conduct a preliminary inquiry or direct an investigation to determine whether there is sufficient ground for proceeding against the accused. This mechanism prevents the criminal process from being initiated mechanically on the mere filing of a complaint.
The provision seeks to maintain a balance between the right of a complainant to seek criminal action and the protection of an accused from unnecessary or vexatious proceedings. By requiring preliminary scrutiny in appropriate cases, the BNSS promotes judicial application of mind, procedural fairness, and the efficient administration of criminal justice.
Postponement of Issue of Process (S. 225 BNSS)
Investigation before Cognizance of Complaint (S. 225(1) BNSS):
According to Section 225(1) BNSS, any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him under section 212, may, if he thinks fit, and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction, postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding: Provided that no such direction for investigation shall be made,—
(a) where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session; or
(b) where the complaint has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath under section 223.
This provision deals with the postponement of issue of process and preliminary inquiry or investigation by the Magistrate after receiving a complaint. Its main purpose is to enable the Magistrate to determine whether there is sufficient ground for proceeding against the accused before issuing summons or warrant. It is particularly important where the accused resides outside the territorial jurisdiction of the Magistrate.
The provision applies where a Magistrate receives a complaint of an offence which the Magistrate is authorised to take cognizance of; or a complaint which has been made over to the Magistrate under Section 212 BNSS. Thus, the Magistrate must have the necessary legal authority to deal with the complaint.
The Magistrate may, if considered appropriate, postpone issuing process to secure the accused’s appearance, such as a summons or warrant against the accused. The purpose of postponement is to give the Magistrate an opportunity to make a preliminary assessment of whether there is sufficient ground to proceed. The provision becomes mandatory where the accused is residing at a place beyond the area in which the Magistrate exercises jurisdiction.
In such a case, the Magistrate shall postpone the issue of process and conduct or order a preliminary inquiry/investigation. This provides an additional safeguard against unnecessarily compelling a person residing outside the Magistrate’s territorial jurisdiction to appear before the court on the basis of a complaint that may not ultimately justify criminal proceedings.
The Magistrate has two alternatives for determining whether sufficient grounds exist. First, the Magistrate may inquire into the case himself or herself. This enables the Magistrate to examine the material and circumstances surrounding the complaint before deciding whether to issue process. Second, the Magistrate may instead direct an investigation to be conducted by a police officer, or such other person as the Magistrate considers appropriate.
Clauses (a) and (b) provides restrictions to the power of Magistrate under Section 225(1) BNSS.
Clause (a) provides that the Magistrate shall not direct such an investigation where it appears that the offence complained of is triable exclusively by the Court of Session. Therefore, if the Magistrate considers that the alleged offence can be tried only by the Court of Session, the Magistrate cannot use this particular power to order the preliminary investigation contemplated by the provision. The provision creates a specific limitation on the Magistrate’s power to order investigation in such circumstances, ensuring that the statutory procedure applicable to Sessions-triable offences is followed.
Clause (b) provides another important safeguard. Where the complaint has not been made by a Court, the Magistrate cannot direct an investigation unless the complainant, and the witnesses present, if any have first been examined on oath under Section 223 BNSS. Thus, in an ordinary private complaint, the Magistrate cannot simply order an investigation without first undertaking the examination required by Section 223.
The provision serves as a filter before the accused is summoned to court. Issuing summons or warrants can have serious consequences for an accused, particularly when the accused lives outside the Magistrate’s jurisdiction. The provision therefore permits or requires preliminary scrutiny before the criminal process is issued. It seeks to balance between the complainant’s right to pursue a genuine criminal allegation; and the accused’s protection against being unnecessarily summoned on an insufficient complaint.
Evidence of Witness in Inquiry (S. 225(2) BNSS):
According to Section 225(2) BNSS, in an inquiry under sub-section (1), the Magistrate may, if he thinks fit, take evidence of witnesses on oath:
Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath.
This provision deals with the taking of evidence during the preliminary inquiry conducted by a Magistrate under sub-section (1). It explains when the Magistrate may examine witnesses on oath and creates a special mandatory requirement where the alleged offence is exclusively triable by the Court of Session.
During an inquiry under sub-section (1), the Magistrate may (discretion), if considered appropriate, take the evidence of witnesses on oath. The Magistrate may consider the circumstances of the case and decide whether examining witnesses on oath is necessary to determine whether there is sufficient ground for proceeding. The purpose is to assist the Magistrate in deciding whether there is sufficient ground for proceeding against the accused. It is important to note that this is a preliminary inquiry, not a full-fledged trial. The Magistrate is not deciding at this stage whether the accused is guilty or innocent.
The proviso creates a special rule where the offence complained of is triable exclusively by the Court of Session. If the Magistrate finds that the offence is exclusively triable by the Court of Session, the Magistrate shall (mandatory) call upon the complainant to produce all his witnesses and must examine those witnesses on oath. Thus, the Magistrate’s discretion to examine witnesses under the main provision becomes a mandatory duty in cases exclusively triable by the Court of Session. The requirement ensures that in serious offences that will ultimately be tried by the Court of Session, the complainant’s witnesses are placed on record at the preliminary stage. It provides the Magistrate with sufficient material to determine whether the case should proceed and ultimately be committed to the Court of Session in accordance with the applicable procedure.
Thus, the provision gives the Magistrate discretion in ordinary cases but imposes a mandatory safeguard in offences exclusively triable by the Court of Session, ensuring that the preliminary material in serious cases is properly recorded before further proceedings.
Power to Person other than Police officer to Investigate (S. 225(3) BNSS):
According to Section 225(3) BNSS, if an investigation under sub-section (1) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this Sanhita on an officer in charge of a police station except the power to arrest without warrant.
This provision deals with a situation where the Magistrate, under sub-section (1), directs an investigation to be conducted by a person who is not a police officer. The provision gives that person extensive investigative powers, but specifically withholds the power to arrest a person without a warrant. The purpose of provision is to ensure that the investigation is not ineffective merely because it is being conducted by a non-police person. But the person cannot arrest anyone without a warrant. This is an important safeguard because the investigator is not a police officer and has been appointed or authorised to investigate only for the purpose specified by the Magistrate.
Dismissal of Complaint (S. 226 BNSS)
If, after considering the statements on oath (if any) of the complainant and of the
witnesses and the result of the inquiry or investigation (if any) under section 225, the
Magistrate is of opinion that there is no sufficient ground for proceeding, he shall dismiss
the complaint, and in every such case he shall briefly record his reasons for so doing.
This provision deals with the dismissal of a complaint when the Magistrate finds that there is no sufficient ground for proceeding against the accused. It follows the preliminary examination of the complainant and witnesses and, where applicable, the inquiry or investigation conducted under Section 225 BNSS.
The provision ensures that a complaint does not proceed to the next stage merely because it has been filed. The Magistrate must consider the available material and determine whether there is a sufficient basis for continuing the proceedings.
At this stage, the Magistrate is not required to conduct a full trial or finally determine whether the accused is guilty or innocent. The question is whether the material provides a sufficient basis for taking the criminal proceedings forward. If the Magistrate concludes that there is no sufficient ground for proceeding, the provision states that the Magistrate shall dismiss the complaint. The Magistrate must also briefly record the reasons for dismissing the complaint. This is an important requirement because the order should show why the Magistrate concluded that there was no sufficient ground for proceeding. The reasons need not be lengthy or constitute a detailed judgment. However, they should be sufficient to demonstrate that the Magistrate considered the relevant material and applied judicial mind.
Conclusion:
The provisions relating to postponement of the issue of process and dismissal of complaints under the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) serve as important safeguards against the misuse of criminal proceedings. The Magistrate is empowered to postpone the issuance of process where further inquiry or investigation is considered necessary to determine whether sufficient grounds exist for proceeding against the accused. This preliminary scrutiny is particularly significant in cases where the accused resides outside the territorial jurisdiction of the Magistrate.
Where, after considering the statements, inquiry, investigation, and material available on record, the Magistrate finds that there is no sufficient ground for proceeding, the complaint may be dismissed by recording brief reasons. This requirement ensures that the decision is based on judicial application of mind and provides transparency in the exercise of the Magistrate’s discretion.