Commencement of Proceedings Sections 227 to 233

Section 227, BNSS 2023

(1) 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 a summons for the attendance of the accused; 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.

(2) No summons or warrant shall be issued against the accused under sub-section (1) until a list of the prosecution witnesses has been filed.

(3) In a proceeding instituted upon a complaint made in writing, every summons or warrant issued shall be accompanied by a copy of such complaint.

(4) When by any law any process-fees or other fees are payable, no process shall be issued until the fees are paid, and if they are not paid within a reasonable time the Magistrate may dismiss the complaint.

📖 Sunil Bharti Mittal v. Central Bureau of Investigation, (2015) 4 SCC 609

Facts: A Special Judge, on a charge sheet naming certain companies as accused, summoned individuals who had not been named in it, on the footing that they were the persons in control of the companies and that the acts of the companies must therefore be attributed to them. The question was what a court must satisfy itself of before summoning a person as an accused.

Held: The Supreme Court held that the summoning of an accused is a serious matter and that the order must reflect the application of the judicial mind. Before issuing process the court must be satisfied that there is sufficient ground for proceeding against the particular person, and it must record, at least in substance, what that ground is where it proceeds against a person not named in the report. The Court held that an individual cannot be summoned merely because he occupies a position in a company: there must be material showing his own role, unless a statute provides for vicarious liability in terms. It emphasised that the power to summon a person not named by the investigating agency exists, but that it must be exercised on material and not on inference from position alone.

Ratio: Process is issued against a person, and the court must be satisfied that there is sufficient ground for proceeding against that person on material relating to him. Position alone is not a substitute for material, in the absence of a statutory provision for vicarious liability.

Section 230, BNSS 2023

In any case where the proceeding has been instituted on a police report, the Magistrate shall without delay, and in no case beyond fourteen days from the date of production or appearance of the accused, furnish to the accused and the victim (if represented by an advocate) free of cost, a copy of each of the following —

(i) the police report;

(ii) the first information report recorded under section 173;

(iii) the statements recorded under sub-section (3) of section 180 of all persons whom the prosecution proposes to examine as its witnesses, excluding therefrom any part in regard to which a request for exclusion has been made by the police officer under sub-section (6) of section 193;

(iv) the confessions and statements, if any, recorded under section 183;

(v) any other document or relevant extract thereof forwarded to the Magistrate with the police report under sub-section (6) of section 193.

⚠ Three changes in section 230

The fourteen-day limit is new. Section 207 of the CrPC required the documents to be furnished “without delay” and fixed no period. The Sanhita fixes fourteen days from the date of production or appearance of the accused, and it is an outer limit: “in no case beyond”.

The victim now receives the documents too, where represented by an advocate. That is a substantial extension, and it is of a piece with the other provisions in the Sanhita giving the victim a standing in the proceeding — the free copy of the first information report under section 173(2), the progress update under section 193(3)(ii), and the right to be heard before a withdrawal from prosecution under section 360.

The exclusion is preserved and is judicially controlled. Where the police officer has requested under section 193(6) that a part be excluded as not relevant or as inexpedient in the public interest, that part is withheld — but the Magistrate decides, and the accused may contest.

📖 V.K. Sasikala v. State, (2012) 9 SCC 771

Facts: The accused sought copies of documents which had been seized and produced in court by the prosecution but on which the prosecution did not propose to rely, and which had accordingly not been supplied under the provisions requiring the furnishing of copies. The question was whether the accused is entitled to access to material in the court’s custody which the prosecution has chosen not to rely on.

Held: The Supreme Court held that the provisions requiring the supply of copies define what the prosecution must give, but they do not exhaust the right of the accused. Where documents have been produced before the court and form part of the record, and the accused seeks access to them for the purpose of his defence, the court may permit inspection and copies, because the right to a fair trial under Article 21 requires that an accused should not be denied access to material in the court’s possession which may assist him. The Court held that the accused need not, at that stage, demonstrate the relevance of the documents in detail, since he cannot know what they contain; the exercise is not to be converted into a roving inquiry, but a genuine request for inspection of material before the court should ordinarily be allowed.

Ratio: The statutory supply of copies defines the prosecution’s obligation, not the limits of the accused’s right. Where documents form part of the court’s record, access may be permitted for the purposes of the defence.

Section 232, BNSS 2023

When in a case instituted on a police report or otherwise, the accused appears or is brought before the Magistrate and it appears to the Magistrate that the offence is triable exclusively by the Court of Session, he shall —

(a) commit, after complying with the provisions of section 230 or section 231, the case to the Court of Session, and subject to the provisions relating to bail, remand the accused to custody until such commitment has been made;

(b) subject to the provisions of this Sanhita as to bail, remand the accused to custody during, and until the conclusion of, the trial;

(c) send to that Court the record of the case and the documents and articles, if any, which are to be produced in evidence;

(d) notify the Public Prosecutor of the commitment of the case to the Court of Session:

Provided that the proceedings under this section shall be completed within a period of ninety days from the date of taking cognizance, and such period may be extended by the Magistrate for reasons to be recorded in writing.

⚠ The sequence matters, and it is now timed

The order is: cognizance → appearance of the accused → supply of documents under section 230 or 231, within fourteen days → commitment under section 232, within ninety days of cognizance → before the Court of Session, an application for discharge within sixty days of commitment under section 250 → the charge, within sixty days of the first hearing on charge under section 251.

Every one of those periods is new. Under the Code of Criminal Procedure the whole of this stage was untimed, and it was common for a Sessions case to remain at the committal stage for a year or more before a charge was even considered.

The periods are directory in the sense that they prescribe no consequence, and section 232 expressly permits extension for reasons recorded. But they give a court and a party something to hold on to, where previously there was nothing.

The position stated shortly

1. Section 227: on sufficient ground for proceeding, a summons issues in a summons case, and a warrant or, if the Magistrate thinks fit, a summons in a warrant case.

2. No process may issue until a list of the prosecution witnesses has been filed; and in a written complaint case, a copy of the complaint must accompany the process.

3. Process is issued against a person, and the court must be satisfied of sufficient ground against that person on material relating to him. Position alone is not a substitute, absent a statutory vicarious liability: Sunil Bharti Mittal.

4. Section 228 permits personal attendance to be dispensed with and appearance by advocate; the Magistrate may direct personal attendance at any later stage.

5. Section 229 permits a special summons in a petty offence — punishable only with fine not exceeding five thousand rupees — under which the accused may plead guilty by post and remit a fine not exceeding one thousand rupees.

6. Section 230: the Magistrate shall furnish free of cost, and in no case beyond fourteen days from the date of production or appearance, the police report, the FIR, the statements under section 180 of the witnesses the prosecution proposes to examine, the confessions and statements under section 183, and the documents forwarded with the report.

7. The fourteen-day limit is new, and so is the requirement that the victim be furnished the documents where represented by an advocate.

8. The statutory supply defines the prosecution’s obligation, not the limits of the accused’s right: where documents form part of the court’s record, access may be permitted for the defence: V.K. Sasikala.

9. Section 232: where the offence is triable exclusively by a Court of Session, the Magistrate shall, after complying with section 230 or 231, commit the case, send the record and documents, and notify the Public Prosecutor. The proceedings shall be completed within ninety days from the date of taking cognizance, extendable for reasons recorded — and that limit is new.

10. Section 233: where a complaint case and a police investigation relate to the same offence, the complaint case is stayed and, on cognizance being taken on the report against an accused in it, the two are tried together as if both had been instituted on a police report.