Issue of Process under Section 204 CrPC

The Issuance of Process under Section 204 of the Code of Criminal Procedure, 1973: A Comprehensive Judicial Analysis

Introduction

The issuance of process under Section 204 of the Code of Criminal Procedure, 1973 (CrPC) marks a critical juncture in criminal proceedings, signifying the formal commencement of proceedings against an accused. This stage follows the Magistrate's decision to take cognizance of an offence under Section 190 CrPC. Section 204 empowers the Magistrate, upon forming an opinion that there is "sufficient ground for proceeding," to issue a summons or a warrant to secure the attendance of the accused. The exercise of this power, while seemingly procedural, is imbued with significant judicial responsibility, requiring a careful application of mind to safeguard against frivolous or vexatious litigation and to ensure that an individual is not unduly subjected to the rigours of a criminal trial. This article undertakes a comprehensive analysis of the legal principles governing the issue of process under Section 204 CrPC, drawing extensively from statutory provisions and judicial pronouncements by the Supreme Court of India and various High Courts.

The Statutory Framework of Section 204 CrPC

Section 204 CrPC outlines the conditions and modalities for the issuance of process. As per sub-section (1), if a Magistrate taking cognizance of an offence is of the opinion that there is sufficient ground for proceeding, they shall issue a summons if the case appears to be a summons-case, or may issue a warrant (or a summons, if deemed fit) if it appears to be a warrant-case, for causing the accused to appear.[1, 2, 3]

The section further imposes certain pre-conditions:

  • Sub-section (2) mandates that no summons or warrant shall be issued against the accused under sub-section (1) until a list of the prosecution witnesses has been filed.[1, 2, 3]
  • Sub-section (3) stipulates that 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.[1, 2, 3]
  • Sub-section (4) provides that when any process fees or other fees are payable under any law, no process shall be issued until such fees are paid. If not paid within a reasonable time, the Magistrate may dismiss the complaint.[1, 2, 3]

This statutory architecture underscores a structured approach to initiating proceedings, ensuring basic procedural fairness and information to the accused from the outset.

Judicial Application of Mind: The Cornerstone of Issuing Process

The linchpin of Section 204 CrPC is the requirement for the Magistrate to form an "opinion" that there is "sufficient ground for proceeding." This phraseology necessitates a careful application of judicial mind to the facts and materials on record before compelling an individual to face criminal prosecution. The Supreme Court in Pepsi Foods Ltd. And Another v. Special Judicial Magistrate And Others emphasized that summoning an accused in a criminal case is a serious matter and the order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto.[4]

In Mehmood Ul Rehman v. Khazir Mohammad Tunda And Others, the Apex Court reiterated that taking cognizance is not a mechanical process but requires deliberate judicial consideration, and there must be an implicit or explicit indication that the Magistrate has considered the facts and evidence sufficing to proceed.[5] While detailed reasons for issuing process under Section 204 are not statutorily mandated, unlike for dismissing a complaint under Section 203 CrPC,[6] the record must nevertheless demonstrate that the decision was not arbitrary or unconsidered. The Allahabad High Court in Raj Kumar Agarwal v. State Of U.P. noted that at the stage of issuing process under Section 204 CrPC, a detailed enquiry regarding the merits and demerits of the case is not required, and the fact that police have submitted a charge sheet may be considered sufficient ground, subject to the Magistrate examining if the complaint is barred by any law (e.g., want of sanction, limitation).[6]

The process of taking cognizance under Section 190 CrPC is distinct from, yet a precursor to, the issuance of process under Section 204. As clarified in Mohd. Yousuf v. Afaq Jahan (Smt) And Another, ordering an investigation under Section 156(3) CrPC does not amount to taking cognizance; cognizance is taken under Chapter XV (which includes Section 190), leading to procedures under Sections 200, 202, and eventually Section 204.[7] The Bombay High Court in State Of Maharashtra v. Harshad K. Shah And Another observed that a Magistrate takes cognizance when they apply their mind to the offence for the purpose of commencement of proceedings under Chapter XVI by issuing process under Section 204.[8]

The Jharkhand High Court in Amresh Kumar Dhiraj And Others v. State Of Jharkhand And Another pertinently observed that even if cognizance of an offence is taken, the Magistrate is not bound to issue summons against all named accused persons. Process under Section 204 should only be issued if there is sufficient ground to proceed against a particular person, meaning the Magistrate must form an opinion that there are sufficient materials against *each* accused to proceed.[9] This aligns with the principle that criminal liability is personal and requires specific implication.

"Sufficient Ground for Proceeding": Scope and Interpretation

The term "sufficient ground for proceeding" is not defined in the CrPC, leaving its interpretation to judicial wisdom. It is generally understood to mean the existence of a prima facie case against the accused. The assessment at this stage is not a detailed evaluation of evidence or a mini-trial. In Fiona Shrikhande v. State Of Maharashtra And Another, the Supreme Court, dealing with an offence under Section 504 IPC, held that the Magistrate's role at the complaint stage is limited to assessing whether sufficient grounds exist to proceed, without delving into detailed merits or seeking verbatim reproductions of alleged insulting language. The determination of a prima facie case requires considering the inherent probabilities based on the complaint's content.[10]

The Supreme Court in Inder Mohan Goswami And Another v. State Of Uttaranchal And Others, while dealing with quashing of proceedings under Section 482 CrPC, reiterated the test of whether allegations establish an offence prima facie.[11] Similarly, in Ghcl Employees Stock Option Trust v. India Infoline Limited, the necessity of a prima facie establishment of offences before proceeding with prosecution was emphasized.[12] The Magistrate's duty is to judiciously assess the prima facie case before issuing summons, ensuring prosecutions are not initiated without substantive grounds.[12]

The Delhi High Court in Amrik Singh v. State Etc., referencing earlier decisions, noted that while a "speaking order" for issuing process does not mean an elaborate order, the application of mind can be seen from the way a magistrate considers the material placed before him.[13] The satisfaction required is only to see whether there is sufficient ground for proceeding and not whether there is sufficient ground for conviction.[14]

Procedural Requirements and Safeguards

Section 204 CrPC incorporates several procedural safeguards. The mandatory filing of a list of prosecution witnesses before issuing process (Section 204(2)) ensures that the accused is aware of the individuals likely to depose against them.[1, 2, 3] The Karnataka High Court in Sri Yamanappa Sangappa Hulageri And Others v. Kallappa Salabappa Ganganagoudar And Others dealt with the consequences of non-compliance with this provision, clarifying that an order issuing process in breach of this statutory provision is non-est and corrective action can be taken by the trial court by directing the complainant to file the list and then issuing fresh process.[15]

Similarly, in complaint cases, providing a copy of the complaint with the summons or warrant (Section 204(3)) is crucial for the accused to understand the allegations.[1, 2, 3] The requirement for payment of process fees (Section 204(4)) is a procedural formality, failure of which can lead to dismissal of the complaint.[1, 2, 3]

Section 204(1) distinguishes between summons-cases and warrant-cases for the type of process to be issued. While a summons is the norm for summons-cases, for warrant-cases, the Magistrate has discretion to issue a warrant or a summons. The Gujarat High Court in Mohanbhai Chhotubhai Patel v. State Of Gujarat, while discussing the issuance of warrants generally, emphasized that this power must be exercised judiciously with extreme care and caution, balancing personal liberty and societal interest, and non-bailable warrants should be avoided unless essential.[16]

Issuance of Process and the Accused

An important aspect of the stage of issuance of process is that the accused has no right to be heard before the process is issued. The Supreme Court in Manharibhai Muljibhai Kakadia And Another v. Shaileshbhai Mohanbhai Patel And Others clarified that the stage of hearing the accused arises only at a subsequent stage provided in the Code, as Section 204 proceedings are preliminary.[14]

If an accused is aggrieved by the issuance of process, their remedy is not to apply to the Magistrate for recall of the order. The Supreme Court in Adalat Prasad v. Rooplal Jindal And Others definitively held that a Magistrate has no power to review or recall an order of issuing process under Section 204 CrPC.[17] This overruled the earlier view in K.M. Mathew v. State of Kerala. The Court reasoned that if a Magistrate takes cognizance and issues process without sufficient material or in contravention of law, the order may be vitiated, but the remedy lies in invoking Section 482 CrPC before the High Court, not by seeking review from the Magistrate.[17, 18] This position was reiterated in Devendra Kishanlal Dagalia v. Dwarkesh Diamonds Private Limited And Others.[19]

The power to issue process under Section 204 CrPC is distinct from the power to summon additional accused during trial under Section 319 CrPC. As discussed in Sunil Bharti Mittal v. Central Bureau Of Investigation[20] and S. Mohammed Ispahani v. Yogendra Chandak And Others[21], Section 319 can be invoked based on evidence recorded during trial, whereas Section 204 operates at the initial stage based on the complaint or police report and accompanying materials.

Vicarious Liability and Corporate Officials in Issuing Process

In cases involving corporate entities, the issuance of process against directors or officials requires careful consideration. The Supreme Court has consistently held that individuals cannot be made accused merely by virtue of their position in a company without specific allegations of their active role or connivance in the offence. In Ghcl Employees Stock Option Trust v. India Infoline Limited, the Court upheld the quashing of summons against senior officials because there were no specific allegations linking them personally to the criminal offences, emphasizing that vicarious liability in criminal law is not recognized unless explicitly provided by statute.[12]

This principle was further elaborated in Sunil Bharti Mittal v. Central Bureau Of Investigation, where the Court set aside summonses issued to corporate leaders based on a misapplication of the "alter ego" doctrine. It was held that attributing criminal liability through vicarious responsibility necessitates concrete evidence of direct intent or active involvement, beyond mere managerial roles.[20] Similarly, in Birla Corporation Limited v. Adventz Investments And Holdings Limited And Others, the Court quashed criminal proceedings against corporate officials where the complaint lacked specific details and allegations of dishonest intent.[22] Thus, for issuing process against corporate officials, the Magistrate must be satisfied that the complaint or police report contains specific averments implicating them directly in the commission of the offence.

Postponement of Issue of Process (Section 202 CrPC)

Section 202 CrPC provides for the postponement of the issue of process. If the Magistrate, on receipt of a complaint, thinks fit, they may postpone issuing process and either inquire into the case themselves or direct an investigation by a police officer or another person to decide if there is sufficient ground for proceeding. This is particularly relevant, and now mandatory post the 2005 amendment, if the accused resides outside the Magistrate's jurisdiction.[14, 23] As observed in Fiona Shrikhande, Section 202 delineates the scope of a preliminary inquiry at the complaint stage.[10] The Supreme Court in Manharibhai Muljibhai Kakadia detailed this process, noting that if, after such inquiry or investigation, the Magistrate finds no sufficient ground, the complaint can be dismissed under Section 203 CrPC; otherwise, process is issued under Section 204.[14]

Conclusion

The issuance of process under Section 204 CrPC is a pivotal step in the criminal justice system, demanding a judicious and considered approach from the Magistracy. It is not a mere formality but an exercise of judicial discretion based on an informed opinion about the sufficiency of grounds to proceed against an individual. The legal framework, reinforced by numerous judicial pronouncements, emphasizes the application of mind, the prima facie satisfaction regarding the commission of an offence and the involvement of the accused, and adherence to procedural safeguards. While the accused has no right to be heard at this preliminary stage, the higher judiciary, particularly through its powers under Section 482 CrPC, acts as a check against erroneous or abusive issuance of process. The principles governing vicarious liability further ensure that individuals, especially in corporate settings, are not roped into criminal proceedings without specific and direct allegations. Ultimately, a balanced and cautious exercise of power under Section 204 CrPC is essential to uphold the tenets of justice, ensuring that while the guilty do not escape, the innocent are not harassed.

References

  1. Ram Harsh Das (In 7878) v. Ajit Dutt (In 13551) (Patna High Court, 1997)
  2. Bhiku Yeshwant Dhangat And Others v. Baban Maruti Barate And Another (Bombay High Court, 2000)
  3. Parkash Devi & Ors. Petitioner v. State Of Delhi & Anr. (Delhi High Court, 2010)
  4. Pepsi Foods Ltd. And Another v. Special Judicial Magistrate And Others (1998 SCC 5 749, Supreme Court Of India, 1997)
  5. Mehmood Ul Rehman v. Khazir Mohammad Tunda And Others (2015 SCC 12 420, Supreme Court Of India, 2015)
  6. Raj Kumar Agarwal v. State Of U.P. (1999 SCC ONLINE ALL 1394, Allahabad High Court, 1999)
  7. Mohd. Yousuf v. Afaq Jahan (Smt) And Another (2006 SCC 1 627, Supreme Court Of India, 2006)
  8. State Of Maharashtra v. Harshad K. Shah And Another (Bombay High Court, 1980)
  9. Amresh Kumar Dhiraj And Others Petitioner(S) v. State Of Jharkhand And Another Opp. Parties. (Jharkhand High Court, 2019)
  10. Fiona Shrikhande v. State Of Maharashtra And Another (2014 SCC CRI 1 715, Supreme Court Of India, 2013)
  11. Inder Mohan Goswami And Another v. State Of Uttaranchal And Others (2008 SCC CRI 1 259, Supreme Court Of India, 2007)
  12. Ghcl Employees Stock Option Trust v. India Infoline Limited (2013 SCC 4 505, Supreme Court Of India, 2013)
  13. Amrik Singh Petitioner v. State Etc. S (Delhi High Court, 1975)
  14. Manharibhai Muljibhai Kakadia And Another v. Shaileshbhai Mohanbhai Patel And Others (Supreme Court Of India, 2012)
  15. Sri Yamanappa Sangappa Hulageri And Others v. Kallappa Salabappa Ganganagoudar And Others (Karnataka High Court, 2003)
  16. Mohanbhai Chhotubhai Patel v. State Of Gujarat (Gujarat High Court, 2014)
  17. Adalat Prasad v. Rooplal Jindal And Others (2004 SCC 7 338, Supreme Court Of India, 2004)
  18. S.K Bhalla Petitioner v. State & Ors. S (2011 SCC ONLINE DEL 2254, Delhi High Court, 2011)
  19. Devendra Kishanlal Dagalia v. Dwarkesh Diamonds Private Limited And Others (2014 SCC CRI 1 800, Supreme Court Of India, 2013)
  20. Sunil Bharti Mittal v. Central Bureau Of Investigation. (2015 SCC 4 609, Supreme Court Of India, 2015)
  21. S. Mohammed Ispahani (S) v. Yogendra Chandak And Others (S) (2017 SCC ONLINE SC 1230, Supreme Court Of India, 2017)
  22. Birla Corporation Limited v. Adventz Investments And Holdings Limited And Others (2019 SCC 16 610, Supreme Court Of India, 2019)
  23. MANGAL SAIN SHARMA v. STATE OF PUNJAB AND ANOTHER (Punjab & Haryana High Court, 2024)
  24. 1. Satya Narayan Raut v. 2. Deo Narayan Raut… (Patna High Court, 1998) [Referencing Nagawwa v. Veeranna Shivalingappa Konjalgi]
  25. SHREEMAJJAGADGURU SHANKARACHARYA v. THE STATE OF KARNATAKA BY (Karnataka High Court, 2025) [Referencing Raj Kumar Agarwal v. State of U.P.]
  26. Ranbir Singh Kharab v. Santosh (Delhi High Court, 2006) [Discussing inquiry at S.200 stage leading to S.203/204]
  27. Sudama Singh v. Kavindra Narain Singh Opp. Party. (Patna High Court, 1972) [Pre-CrPC 1973 context, but discusses process issuance]
  28. Krushna Mohan And Others v. Sudhakar Das And Others Opposite Party. (1953 SCC ONLINE ORI 10, Orissa High Court, 1953) [Discussing inherent powers and orders under S.204 pre-Adalat Prasad]