Issue of Process and Supply of Documents

Sub-section (4). Where process fees are payable, no process shall be issued until they are paid, and if they are not paid within a reasonable time the Magistrate may dismiss the complaint.

Sub-section (5). Nothing in the section affects section 90, which is the power to issue a warrant in lieu of or in addition to a summons.

Sections 228 and 229: attendance, and petty offences

Section 228. Where a Magistrate issues a summons he may, if he sees reason, dispense with the personal attendance of the accused and permit him to appear by his advocate. But the Magistrate inquiring into or trying the case may, at any stage, direct personal attendance and enforce it.

Section 229, special summons in petty offences. Where, in the opinion of a Magistrate taking cognizance of a petty offence, the case may be summarily disposed of under section 283 or 284, he shall, unless for reasons recorded in writing he is of a contrary opinion, issue a summons requiring the accused either:

• to appear in person or by an advocate on a specified date; or
• if he wishes to plead guilty without appearing, to transmit the plea in writing and the amount of the fine specified in the summons, by post or messenger, before that date; or
• if he wishes to appear by an advocate and plead guilty through him, to authorise the advocate in writing to plead guilty and pay the fine.

The proviso: the fine specified in such a summons shall not exceed five thousand rupees.

Sub-section (2), the definition. "Petty offence" means any offence punishable only with fine not exceeding five thousand rupees, but does not include an offence so punishable under the Motor Vehicles Act, 1988, or under any other law which provides for convicting the accused in his absence on a plea of guilty.

Sub-section (3). The State Government may by notification specially empower a Magistrate to use the same procedure for an offence compoundable under section 359, or punishable with imprisonment not exceeding three months, or with fine, or with both, where he is of opinion that a fine only would meet the ends of justice.

Section 230: documents in a police report 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 to the victim, if represented by an advocate, free of cost, a copy of each of:

(i) the police report; (ii) the first information report recorded under section 173; (iii) the statements recorded under section 180(3) of all persons whom the prosecution proposes to examine as its witnesses, excluding any part for which the police officer has requested exclusion under section 193(7); (iv) the confessions and statements, if any, recorded under section 183; (v) any other document or relevant extract forwarded to the Magistrate with the police report under section 193(6).

The first proviso. The Magistrate may, after perusing an excluded part and considering the officer's reasons, direct that a copy of that part, or such portion as he thinks proper, be furnished to the accused.

The second proviso. Where a document is voluminous, he may furnish copies through electronic means, or direct that the accused be allowed only to inspect it, personally or through an advocate, in Court.

The third proviso: supply of documents in electronic form shall be considered as duly furnished.

Three things in section 230 are new and should be named: the fourteen day limit, the inclusion of the victim represented by an advocate, and electronic supply as due service.

Section 231: documents in other Sessions triable cases

Where, in a case instituted otherwise than on a police report, it appears to the Magistrate issuing process under section 227 that the offence is triable exclusively by the Court of Session, he shall forthwith furnish to the accused, free of cost, a copy of each of:

(i) the statements recorded under section 223 or 225 of all persons examined by the Magistrate; (ii) the statements and confessions, if any, recorded under section 180 or 183; (iii) any documents produced before the Magistrate on which the prosecution proposes to rely.

The provisos repeat the voluminous document rule and the rule that electronic supply is due furnishing.

Section 232: committal to the Court of Session

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

(a) commit the case to the Court of Session, after complying with section 230 or section 231, and, subject to the bail provisions, remand the accused to custody until the committal; (b) subject to the bail provisions, 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 to be produced in evidence; (d) notify the Public Prosecutor of the committal.

The first proviso, new: the proceedings under this section shall be completed within ninety days from the date of taking cognizance, and the Magistrate may extend that period for a period not exceeding one hundred and eighty days for reasons to be recorded in writing.

The second proviso, new: any application filed before the Magistrate by the accused or the victim or a person authorised by such person in a case triable by the Court of Session shall be forwarded to the Court of Session with the committal.

Note the order of clause (a): the documents under section 230 or 231 must be supplied before the case is committed. An accused should not reach the Sessions Court without them.

Section 233: a complaint case and a police investigation about the same offence

Sub-section (1). Where, in a complaint case, it is made to appear to the Magistrate during the inquiry or trial that a police investigation is in progress into the same offence, he shall stay the proceedings and call for a report from the investigating officer.

Sub-section (2). If a report is made under section 193 and on it the Magistrate takes cognizance against any person who is an accused in the complaint case, he shall inquire into or try together the complaint case and the case arising out of the police report, as if both had been instituted on a police report.

Sub-section (3). If the police report does not relate to any accused in the complaint case, or the Magistrate does not take cognizance on it, he shall proceed with the inquiry or trial which he had stayed.

The purpose is to stop the same allegation being tried twice in the same court, and to make sure that where it is tried once, it is tried on the fuller of the two records.

A worked example

A charge sheet is filed at Vasai against Anand for an offence punishable with twelve years, which is triable exclusively by the Court of Session.

Process. The Magistrate, being of opinion that there is sufficient ground for proceeding, issues a warrant or a summons, section 227(1)(b), possibly through electronic means. But he may issue nothing until the list of prosecution witnesses has been filed, section 227(2).

Documents. On Anand's production or appearance, the Magistrate must supply him, free of cost and within fourteen days, with the police report, the FIR, the section 180(3) statements of the proposed prosecution witnesses, any section 183 confessions and statements, and the other documents sent with the report, section 230. The victim, if represented by an advocate, gets the same set.

A part of a witness's statement has been marked for exclusion. The Magistrate may, after reading it and considering the officer's reasons, direct that it be furnished to Anand anyway, first proviso to section 230.

A document runs to nine hundred pages. The Magistrate may supply it electronically, or direct that Anand only inspect it in Court, second proviso.

Committal. The offence being exclusively Sessions triable, the Magistrate commits the case, but only after complying with section 230, remands Anand to custody subject to bail, sends the record and the articles, and notifies the Public Prosecutor, section 232. The whole of that must be done within ninety days of taking cognizance, extendable to one hundred and eighty for reasons recorded.

Anand's bail application is pending before the Magistrate. It shall be forwarded to the Court of Session with the committal, second proviso to section 232.

Change the facts. Anand's neighbour had earlier filed a complaint case about the same incident before the same Magistrate. On learning that a police investigation is in progress, the Magistrate shall stay the complaint case and call for a report, section 233(1). When the report comes and he takes cognizance on it against Anand, who is also an accused in the complaint case, he must try the two together as if both were instituted on a police report, section 233(2).

Change them once more. Anand is prosecuted for an offence punishable only with a fine of two thousand rupees, not under the Motor Vehicles Act. That is a petty offence. The Magistrate shall, unless he records a contrary opinion, issue a special summons under section 229 offering Anand the choice of appearing, or of pleading guilty by post and remitting the fine, or of authorising an advocate to plead guilty and pay. The fine specified may not exceed five thousand rupees.

Distinctions

What this does NOT mean

Section 227 does not oblige a Magistrate to issue a warrant in a warrant case. He may issue a summons if he thinks fit.

Section 230 is not satisfied by letting the accused see the file. Copies must be furnished free, and inspection is allowed only for a voluminous document.

A committal is not a finding of guilt or even of a prima facie case in the section 250 sense. It is the transfer of a case the Magistrate cannot try.

And section 233 does not merge every complaint case with every police case. The joint trial happens only where the Magistrate takes cognizance on the police report against a person who is an accused in the complaint case.

Quick revision

• 227(1): summons in a summons-case; warrant or summons in a warrant-case; process may issue electronically.
• 227(2), new: no process until the list of prosecution witnesses is filed.
• 227(3) and (4): a written complaint's copy accompanies the process; no process until process fees are paid, and the complaint may be dismissed for non-payment.
• 228: personal attendance may be dispensed with and an advocate permitted; attendance may be directed at any stage.
• 229: a special summons in a petty offence that may be summarily disposed of, offering a plea of guilty by post or through an advocate; the fine specified may not exceed five thousand rupees; "petty offence" means one punishable only with fine not exceeding five thousand rupees, excluding Motor Vehicles Act offences and any law allowing conviction in absence on a plea of guilty; extension by notification to compoundable offences and offences up to three months.
• 230: in a police report case, five categories of documents, free, within fourteen days of production or appearance, to the accused and the victim if represented by an advocate; excluded parts may still be ordered furnished; voluminous documents may be supplied electronically or only inspected; electronic supply is due furnishing.
• 231: in an exclusively Sessions triable complaint case, three categories, forthwith and free, with the same provisos.
• 232: committal after complying with section 230 or 231; remand; record, documents and articles to the Sessions Court; notify the Public Prosecutor; ninety days from cognizance, extendable to one hundred and eighty for recorded reasons; pending applications forwarded with the committal.
• 233: stay the complaint case and call for a report where a police investigation into the same offence is in progress; try both together as if on a police report where cognizance is taken against a common accused; otherwise resume the stayed proceeding.

Test yourself

1. What must be on file before a summons or warrant may issue? A list of the prosecution witnesses, section 227(2).

2. Within what time must the police report and other documents be given to the accused? Without delay and in no case beyond fourteen days from the date of production or appearance of the accused, section 230.

3. Who else is entitled to those documents? The victim, if represented by an advocate, section 230.

4. Define a petty offence. An offence punishable only with fine not exceeding five thousand rupees, but not one so punishable under the Motor Vehicles Act, 1988 or under any other law providing for conviction in the accused's absence on a plea of guilty, section 229(2).

5. Within what time must a committal be completed? Within ninety days from the date of taking cognizance, extendable by the Magistrate for a period not exceeding one hundred and eighty days for reasons to be recorded in writing, first proviso to section 232.

6. Must the documents be supplied before or after committal? Before. Section 232(a) requires the Magistrate to commit the case after complying with section 230 or section 231.

7. A complaint case and a police investigation cover the same offence. What must the Magistrate do? Stay the complaint proceedings and call for a report from the investigating officer; and if he then takes cognizance on the police report against a person who is an accused in the complaint case, try the two together as if both had been instituted on a police report, section 233.