Legal provisions regarding postponement of issue of process for further scrutiny of the complaint under section 202 of the Code of Criminal Procedure, 1973.
(1) Any Magistrate, on receipt of a complaint of an offence of which he is authorized to take cognizance, or which has been made over to him under Section 192, 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. However, no such direction for investigation shall be made,—
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(a) Where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session; or
(b) Whether the complaint has not been made by a Court, unless the complaint and the witnesses present (if any) have been examined on oath under Section 200.
(2) In an inquiry under sub-section (1), the Magistrate may, if he thinks fit, take evidence of witnesses on oath. However, 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.
(3) If an investigation under sub-section (1) is made by a person not being a police officer, he shall have for the investigation all the powers conferred by this Code on an officer in charge of a police station, except the power to arrest without warrant.
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The object of an investigation under Section 202 of the Code is to enable the Magistrate to form an opinion as to whether the process should be issued or not, and to remove from his mind hesitation that he may have felt upon the mere perusal of the complaint and the consideration of the complainant’s evidence on oath.
The aim of an investigation under Section 202 of the Code is not to initiate a fresh case on police report but to assist the Magistrate in completing proceedings already instituted upon a complaint before him. A judicial Magistrate after taking cognizance of an offence on the basis of police report and after the appearance of the accused cannot order fresh investigation by the police.
The accused is not given any role in the proceedings under Section 202 inasmuch as it might prejudice the accused if the complaint is not dismissed.
An inquiry under Section 202 is not in the nature of a trial for there can be in law only one trial in respect of any offence and a trial can commence only after process is issued to the accused. The said proceedings are not strictly proceedings between the complainant and the accused. A person against whom a complaint is filed does not become an accused until it is decided to issue process against him.
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The power to order police investigation under Section 156(3) is different from the power to direct investigation conferred by Section 202(1). Investigation under Section 156(3) is exercisable at the pre-cognizance stage and the investigation under Section 202(1) at the post-cognizance stage when the Magistrate is in seizure of the case.
Section 202 of the Code comes in at a stage when some evidence has been collected by the Magistrate in proceedings under Chapter XV of the Code, but the same is deemed insufficient to take a decision as to the next step in the prescribed procedure. In such a situation the Magistrate is empowered under Section 202 of the Code to direct within the limits circumstance by that Section, an investigation ‘for the purpose of deciding whether or not there is sufficient ground for proceeding’.
It may be noted that the words ‘if he thinks fit’ give full discretion to the Magistrate to direct investigation or to decide to make an inquiry. The discretion, however, would be exercised judicially. Once the Magistrate has exercised his discretion, it is not for the High Court, or even the Supreme 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.