An Exposition of Investigation under Section 202 of the Cr.P.C.

An Exposition of Investigation under Section 202 of the Cr.P.C.: Purpose, Scope, and Procedural Mandates

I. Introduction

Section 202 of the Code of Criminal Procedure, 1973 (Cr.P.C.) stands as a critical procedural safeguard within the architecture of Indian criminal law. Positioned within Chapter XV, which governs complaints to Magistrates, this provision delineates the power of a Magistrate to postpone the issuance of process against an accused and conduct an inquiry or direct an investigation. The fundamental objective of this section is to act as a judicial filter, preventing the initiation of frivolous, vexatious, or malicious criminal proceedings. It empowers the Magistrate to delve into the complaint to ascertain whether there are sufficient grounds to proceed, thereby balancing the right of a complainant to seek justice against the potential for harassment of the accused.

The jurisprudence surrounding Section 202 Cr.P.C. is rich and has evolved significantly, particularly after the Code of Criminal Procedure (Amendment) Act, 2005. The judiciary, through a catena of pronouncements, has meticulously carved out the scope, purpose, and procedural imperatives of this provision. This article seeks to provide a comprehensive analysis of investigation under Section 202 Cr.P.C., examining its distinction from pre-cognizance investigations, the mandatory nature of the inquiry for accused persons residing outside the Magistrate's jurisdiction, the limited scope of such investigations, and the procedural pathway available to the Magistrate. This analysis is based on a thorough review of landmark judgments of the Supreme Court of India and various High Courts.

II. The Dichotomy: Pre-Cognizance v. Post-Cognizance Investigation

A foundational aspect of understanding Section 202 Cr.P.C. is to distinguish it from the power of a Magistrate to order an investigation under Section 156(3) Cr.P.C. The stage at which these powers are invoked is the determinative factor, creating a clear line between pre-cognizance and post-cognizance directions.

A. Investigation under Section 156(3) Cr.P.C.: The Pre-Cognizance Stage

Section 156(3) Cr.P.C. empowers a Magistrate to order a police investigation without taking cognizance of the offence. This power is exercised at a pre-cognizance stage. When a Magistrate receives a complaint and chooses to proceed under Section 156(3), they are essentially directing the police to register a First Information Report (FIR) and conduct a full-fledged investigation as contemplated under Chapter XII of the Cr.P.C. The Supreme Court in Devarapalli Lakshminarayana Reddy And Others v. V. Narayana Reddy And Others (1976 SCC 3 252) and subsequently in Rameshbhai Pandurao Hedau v. State Of Gujarat (2010) clarified that this power is strictly a pre-cognizance tool. Once the Magistrate takes cognizance under Section 190 Cr.P.C.—for instance, by examining the complainant on oath under Section 200 Cr.P.C.—the option to revert to Section 156(3) is foreclosed (THOUFEEQ, v. STATE OF KERALA, 2024; N. Amsaveni v. R. Loganathan & Another, 2019).

B. Inquiry or Investigation under Section 202 Cr.P.C.: The Post-Cognizance Stage

In stark contrast, the power under Section 202 Cr.P.C. is exercised at the post-cognizance stage. After taking cognizance and recording the statement of the complainant and witnesses under Section 200, if the Magistrate is not satisfied that there are sufficient grounds for proceeding, they may postpone the issue of process. At this juncture, Section 202(1) provides two alternatives: either to inquire into the case themselves or to direct an investigation by a police officer or by such other person as they think fit. The Supreme Court in Rameshbhai Pandurao Hedau affirmed that the inquiry or investigation under Section 202 is at the post-cognizance stage and is intended solely "for the purpose of deciding whether or not there is sufficient ground for proceeding."

III. The Scope and Object of the Section 202 Inquiry

A. A Limited Mandate: Ascertaining a Prima Facie Case

The investigation directed under Section 202 Cr.P.C. is not a full-scale police investigation aimed at collecting evidence for trial. Its scope is circumscribed and its purpose is limited. The Supreme Court in Birla Corporation Limited v. Adventz Investments And Holdings Limited And Others (2019 SCC 16 610) held that the scope of inquiry is limited to the ascertainment of truth or falsehood of the allegations made in the complaint, purely from the complainant's point of view, to determine if a prima facie case for issuing process has been made out. The Magistrate is not to advert to any defence that the accused may have.

This principle was also articulated in Mohinder Singh v. Gulwant Singh And Others (1992 SCC CRI 361), where the Court cautioned that the inquiry's purpose is not to assess the sufficiency of evidence for a conviction but merely to establish if a prima facie case exists. The Magistrate must apply their judicial mind and express satisfaction that the allegations constitute an offence before issuing process, rather than acting as a "post office" (Mehmood Ul Rehman v. Khazir Mohammad Tunda, 2015 SCC 12 420; Biju K. Peter v. State Of Kerala, 2022).

B. Nature of the Investigation: Distinction from Chapter XII

The distinction in purpose translates to a distinction in police powers. In Ramdev Food Products Private Limited v. State Of Gujarat (2015 SCC 6 439), the Supreme Court delivered a landmark ruling clarifying that during an investigation under Section 202, the police do not possess the authority to arrest the accused without a warrant. This is because such an investigation is not one conducted under Chapter XII of the Cr.P.C., which confers such powers.

Further reinforcing this distinction, it has been held that police cannot issue summons under Section 160 Cr.P.C. to compel the attendance of witnesses during a Section 202 investigation, as this power is linked to an investigation under Chapter XII (Housing Development Finance Corporation Limited v. State Of Gujarat, 2014). Similarly, when a Magistrate directs an investigation under Section 202, the police are to submit a report to the Magistrate and are not permitted to register an FIR as they would under Section 154 or 156(3) (U. Shivanna And Another v. L. Anjanappa And Another, 2000). A nuanced point was made by the Kerala High Court in Biju Purushothaman v. The State Of Kerala & Ors. (2008), which observed that since a Section 202 investigation falls outside Chapter XII, the embargo under Section 162 Cr.P.C. against the use of police statements does not apply.

IV. The Mandatory Inquiry for Accused Residing Beyond Jurisdiction

A. The Legislative Intent of the 2005 Amendment

A pivotal change to Section 202 Cr.P.C. was introduced by the Code of Criminal Procedure (Amendment) Act, 2005. A proviso was added making it obligatory for a Magistrate to postpone the issuance of process and conduct an inquiry or direct an investigation where the accused resides in an area beyond their territorial jurisdiction. The Supreme Court, in cases like Vijay Dhanuka And Others v. Najima Mamtaj And Others (2015 SCC CRI 1 479) and Pawan Kumar Dhoot v. Deo Kumar Saraf and Others (2018), has explained that the legislative intent behind this amendment was to protect innocent persons from being harassed by unscrupulous individuals filing false complaints from distant places.

B. "Shall" as a Mandatory Command

The judiciary has consistently interpreted the use of the word "shall" in the amended proviso as imposing a mandatory, non-discretionary duty upon the Magistrate. In Abhijit Pawar v. Hemant Madhukar Nimbalkar And Another (2017 SCC 3 528), the Supreme Court held that this inquiry is not a mere formality but a substantive examination to prevent unwarranted harassment. This mandatory nature was unequivocally affirmed in Vijay Dhanuka and reiterated in numerous other decisions (National Bank Of Oman v. Barakara Abdul Aziz And Another, 2013 SCC 2 488; SRI N.L. SHAH v. G.S.S.K OFFICIALS & EMPLOYEES, 2019).

C. Consequence of Non-Compliance

The failure of a Magistrate to comply with this mandatory procedural requirement has been held to vitiate the order issuing process. In both National Bank of Oman and Abhijit Pawar, the Supreme Court, upon finding that the Magistrate had issued summons to an out-of-jurisdiction accused without conducting the requisite inquiry, quashed the summons. However, instead of dismissing the complaint outright, the Court remitted the matter to the Magistrate to pass fresh orders after complying with the procedure laid down in Section 202 Cr.P.C. This approach corrects the procedural error while allowing the complaint to be adjudicated on its merits. This modern, strict interpretation contrasts with the older, more general "failure of justice" test articulated in Rosy And Another v. State Of Kerala And Others (2000 SCC 2 230), demonstrating the profound impact of the 2005 amendment on judicial practice.

V. The Magistrate's Discretion and Procedural Pathway

Upon taking cognizance of a complaint, a Magistrate has a clear procedural pathway. If satisfied at the outset, process can be issued under Section 204 Cr.P.C. However, if the Magistrate thinks fit to postpone the issue of process, Section 202(1) presents a choice. As held in Biju Purushothaman, the Magistrate can adopt only one of the two courses: either conduct an inquiry themselves or direct an investigation. Once one course is adopted, the other cannot be subsequently followed. After receiving the report of the investigation or concluding the inquiry, the Magistrate must decide whether there are sufficient grounds for proceeding. If so, process is issued under Section 204; if not, the complaint is dismissed under Section 203 Cr.P.C. The case of Govind v. Savita (2019) provides an example where the court upheld proceedings where the Magistrate had properly directed an investigation under Section 202 and issued process after receiving a favorable report.

VI. Conclusion

Section 202 of the Code of Criminal Procedure is a testament to the procedural wisdom embedded in Indian criminal law. It serves as a crucial checkpoint, ensuring that the machinery of the criminal justice system is not set in motion without a preliminary application of judicial mind. The jurisprudence, shaped by the Supreme Court and various High Courts, has clarified its role as a post-cognizance tool, distinct in scope and power from a pre-cognizance investigation under Section 156(3). The limited nature of the inquiry—focused on ascertaining a prima facie case without the police power of arrest—protects the accused from the rigours of a full investigation at a preliminary stage.

Most significantly, the mandatory inquiry for accused persons residing beyond the Magistrate's jurisdiction, institutionalized by the 2005 amendment and rigorously enforced by the courts, represents a vital safeguard against the abuse of legal process. By insisting on this procedural rectitude, the judiciary ensures that Section 202 Cr.P.C. effectively fulfills its intended purpose: to weed out baseless complaints at the threshold, thereby preserving judicial resources and, more importantly, protecting individual liberty from unwarranted encroachment.