Section 225 of BNSS, 2023 — Postponement of Issue of Process

Introduction

Section 225 of the Bharatiya Nagarik Suraksha Sanhita, 2023 deals with the postponement of the issue of process against an accused after a Magistrate receives a complaint of an offence which he is authorised to take cognizance of.

The provision allows the Magistrate to make further inquiry or direct an investigation before deciding whether there is sufficient ground for proceeding against the accused. In certain circumstances, particularly where the accused resides beyond the Magistrate’s jurisdiction, such postponement is mandatory.

Meaning of Section 225

The “issue of process” refers to the stage at which the Magistrate directs the accused to appear before the Court, generally through summons or warrant as permitted by law.

Section 225 allows the Magistrate to postpone this step and conduct further inquiry or investigation to determine whether sufficient grounds exist for proceeding against the accused.

The provision serves as a safeguard against issuing process mechanically on the basis of a complaint alone.

Statutory Basis

Section 225 of the BNSS provides for:

• postponement of issue of process;
• inquiry by the Magistrate;
• investigation by a police officer or another person authorised by the Magistrate;
• determination of whether sufficient ground exists for proceeding;
• special safeguards where the accused resides outside the Magistrate’s jurisdiction.

Object and Purpose

The main purposes of Section 225 are:

• To prevent unnecessary issuance of process against an accused.
• To enable the Magistrate to ascertain whether sufficient grounds exist for proceeding.
• To provide an additional preliminary scrutiny of the complaint.
• To protect persons from being unnecessarily summoned to Court.
• To assist the Magistrate in determining whether the complaint requires further proceedings.

Nature of the Power

The power under Section 225 has both a discretionary and mandatory aspect.

Discretionary Power

A Magistrate may postpone the issue of process if the Magistrate considers it appropriate.

The Magistrate may then:

• inquire into the case himself; or
• direct an investigation by a police officer; or
• direct an investigation by another person whom he considers fit.

Mandatory Postponement

The Magistrate shall postpone the issue of process where the accused is residing at a place beyond the area in which the Magistrate exercises jurisdiction.

Therefore, the provision distinguishes between the general discretionary power of postponement and the specific situation where postponement is mandatory.

Procedure under Section 225

Step 1: Receipt of Complaint

The Magistrate receives a complaint concerning an offence which he is authorised to take cognizance of, or which has been made over to him under Section 212.

Step 2: Consideration of Issue of Process

Before issuing process against the accused, the Magistrate may consider whether further inquiry or investigation is necessary.

Step 3: Postponement of Process

The Magistrate may postpone the issue of process.

Where the accused resides outside the territorial area of the Magistrate’s jurisdiction, postponement is mandatory.

Step 4: Inquiry or Investigation

The Magistrate may:

• conduct an inquiry himself; or
• direct an investigation by a police officer; or
• direct an investigation by another person considered fit.

Step 5: Determination of Sufficient Ground

The purpose of the inquiry or investigation is to determine whether there is sufficient ground for proceeding against the accused.

Investigation under Section 225

The Magistrate may direct an investigation for the limited purpose of determining whether sufficient ground exists for proceeding.

This investigation should not be confused with the full investigation of a criminal case conducted by the police under the general investigative provisions of the BNSS.

Section 225 operates within the complaint procedure before the Magistrate.

Exceptions to Direction for Investigation

Section 225 contains important limitations on the Magistrate’s power to direct an investigation.

1. Offence Triable Exclusively by Court of Session

The Magistrate cannot direct an investigation under this provision where it appears that the offence complained of is triable exclusively by the Court of Session.

2. Complaint Not Made by a Court

Where the complaint has not been made by a Court, the Magistrate cannot direct such an investigation unless the complainant and the witnesses present, if any, have been examined on oath under Section 223.

These safeguards ensure that the investigation mechanism under Section 225 is not used without the necessary preliminary examination.

Inquiry by the Magistrate

During an inquiry under Section 225, the Magistrate may, if he thinks fit, take evidence of witnesses on oath.

Where the offence appears to be triable exclusively by the Court of Session, the Magistrate must call upon the complainant to produce all his witnesses and examine them on oath.

Investigation by a Person Other Than Police

Where an investigation under Section 225 is conducted by a person who is not a police officer, that person has the powers conferred by the BNSS on an officer in charge of a police station for the purpose of that investigation.

However, such person does not have the power to arrest without warrant.

This is an important limitation on the authority of a non-police investigator under the provision.

Powers and Duties of the Magistrate

The Magistrate has the power to:

• postpone the issue of process;
• conduct an inquiry personally;
• direct an investigation by a police officer;
• direct an investigation by another suitable person;
• examine witnesses on oath during an inquiry where appropriate.

The Magistrate also has a duty to postpone the issue of process when the accused resides beyond the area in which the Magistrate exercises jurisdiction.

Important Distinctions

Postponement of Process vs Dismissal of Complaint

Postponement of process does not mean that the complaint has been dismissed.

Under Section 225, the Magistrate postpones the issue of process to conduct further inquiry or investigation and determine whether sufficient ground exists for proceeding.

Dismissal of the complaint is dealt with separately under Section 226.

Inquiry vs Investigation

An inquiry under Section 225 may be conducted by the Magistrate himself and can involve examination of witnesses.

An investigation under Section 225 may be entrusted to a police officer or another person authorised by the Magistrate.

The two mechanisms serve the same immediate purpose: assisting the Magistrate in deciding whether there is sufficient ground for proceeding.

Postponement vs Issue of Process

Postponement delays the issuance of process so that the Magistrate can conduct the necessary preliminary scrutiny.

Issue of process occurs when the Magistrate decides that the case should proceed against the accused and takes the appropriate procedural step under Section 227.

BNSS and CrPC

Section 225 of the BNSS corresponds substantially to Section 202 of the Code of Criminal Procedure, 1973.

The basic framework has been retained:

• the Magistrate may postpone the issue of process;
• postponement is mandatory where the accused resides beyond the Magistrate’s jurisdiction;
• the Magistrate may conduct an inquiry or direct investigation;
• restrictions apply to investigation in cases triable exclusively by the Court of Session;
• examination of the complainant and witnesses is required before directing investigation in certain non-Court complaints;
• a non-police investigator does not have the power to arrest without warrant.

The principal change is the renumbering of the provision from Section 202 CrPC to Section 225 BNSS, along with its placement within the BNSS framework.

Relationship with Other BNSS Provisions

Section 223 — Examination of Complainant

Section 223 deals with examination of the complainant and witnesses when a Magistrate takes cognizance on a complaint.

Section 225 deals with the subsequent preliminary inquiry or investigation that may be undertaken before process is issued.

Section 224 — Procedure by Magistrate Not Competent to Take Cognizance

Section 224 applies where the Magistrate is not competent to take cognizance.

Section 225 applies where the Magistrate is authorised to take cognizance and is considering whether process should be issued.

Section 226 — Dismissal of Complaint

Section 226 deals with dismissal where, after considering the statements and the result of any inquiry or investigation under Section 225, the Magistrate finds that there is no sufficient ground for proceeding.

Section 227 — Issue of Process

Section 227 deals with the actual issue of process where the Magistrate finds sufficient ground for proceeding.

Thus, Section 225 functions as an important preliminary stage between the receipt and examination of a complaint and the eventual decision to issue process.

Example

A complaint is filed before a Magistrate against a person who ordinarily resides outside the territorial area of that Magistrate’s jurisdiction.

The Magistrate considers the complaint but does not immediately issue process. Since the accused resides beyond the Magistrate’s jurisdiction, the Magistrate must postpone the issue of process and may conduct an inquiry or direct an investigation for determining whether sufficient ground exists for proceeding.

Common Confusions

Is postponement of process always mandatory?

No.

The Magistrate generally has discretion to postpone the issue of process.

However, where the accused is residing at a place beyond the area in which the Magistrate exercises jurisdiction, postponement is mandatory.

Can the Magistrate direct investigation in every complaint?

No.

Section 225 places restrictions on the power to direct investigation, particularly where the offence is triable exclusively by the Court of Session or where the statutory requirement concerning examination of the complainant and witnesses has not been satisfied.

Can a non-police investigator arrest the accused without warrant?

No.

A person other than a police officer conducting an investigation under Section 225 may exercise the powers specified by the provision, but does not have the power to arrest without warrant.

Does Section 225 mean that the accused has already been summoned?

No.

The very purpose of the provision is to allow the Magistrate to postpone the issue of process before deciding whether sufficient ground exists for proceeding.

Topic at a Glance

• BNSS Section: 225
• Subject: Postponement of issue of process
• General rule: Magistrate may postpone issue of process if considered necessary.
• Mandatory situation: Accused resides beyond the area of the Magistrate’s jurisdiction.
• Methods: Inquiry by Magistrate or investigation by a police officer or other suitable person.
• Purpose: Determine whether sufficient ground exists for proceeding.
• Important restriction: Investigation cannot be directed where the offence appears to be exclusively triable by the Court of Session.
• Non-police investigator: Cannot arrest without warrant.
• Corresponding CrPC provision: Section 202
• Related provisions: Sections 223, 224, 226 and 227 BNSS.

Quick Revision

• Section 225 deals with postponement of issue of process.
• The Magistrate may postpone process where further inquiry or investigation is considered necessary.
• Postponement is mandatory when the accused resides beyond the Magistrate’s jurisdiction.
• The Magistrate may conduct the inquiry himself.
• The Magistrate may direct investigation by a police officer or another suitable person.
• The purpose is to determine whether there is sufficient ground for proceeding.
• Investigation cannot be directed where the offence appears to be exclusively triable by the Court of Session.
• In certain cases involving complaints not made by a Court, the complainant and witnesses present must first be examined on oath under Section 223.
• A non-police investigator does not have the power to arrest without warrant.
• Section 225 corresponds substantially to Section 202 CrPC.
• Section 226 deals with dismissal of the complaint where there is no sufficient ground for proceeding.
• Section 227 deals with issue of process.

ASLO READ: Section 224 – Procedure by Magistrate not competent to take cognizance of case

Conclusion

Section 225 of the BNSS provides an important preliminary safeguard before process is issued against an accused. It enables the Magistrate to undertake further inquiry or investigation where necessary and makes such postponement mandatory when the accused resides beyond the Magistrate’s jurisdiction. By requiring sufficient ground for proceeding before process is issued, the provision seeks to prevent unnecessary criminal proceedings while preserving the complainant’s right to pursue a genuine case.