Corporate structures often separate operational sites from management centres - factories located in resource-rich areas, subsidiaries managing local operations, supply chains spanning continents, and global capability centres supporting worldwide functions. In many such cases, key business activities are managed by individuals from different locations on the ground, but their acts/ omissions implicate management sitting elsewhere. Managers and directors based outside of India face even greater challenges, as they may have to quickly respond to legal proceedings in a country where they neither reside nor oversee local operations, often lacking familiarity with the legal system. To address these difficulties, Indian criminal law provides safeguards to ensure fairness before summoning individuals outside a court’s jurisdiction.
To protect individuals from undue legal hardship and ensure judicial due diligence, Indian criminal law mandates specific procedural requirements before summoning an accused who resides beyond a court’s territorial jurisdiction. Section 225 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (“BNSS”) (previously Section 202 of the Code of Criminal Procedure, 1973) mandates that a Magistrate must postpone the issue of process and conduct an inquiry or direct an investigation to determine whether sufficient grounds exist for proceeding. This procedural safeguard is crucial in preventing arbitrary summons and serves as a strong defence for quashing criminal proceedings where due diligence has not been exercised.
Originally, Indian criminal law did not provide explicit protection for individuals residing outside the jurisdiction of the court issuing summons. However, the need for such a safeguard became evident due to the misuse of legal proceedings to harass individuals living in distant locations. Recognising this, this safeguard was introduced through the Code of Criminal Procedure (Amendment) Act, 2005, effective from June 23, 2006. By making it obligatory for Magistrates to conduct an inquiry or direct an investigation before issuing summons, the law now filters out baseless complaints and ensures that innocent individuals are not subjected to undue legal troubles.
The language of the law makes it clear that this inquiry is mandatory and not merely a discretionary step. The Supreme Court, in Udai Shankar Awasthi v. State of UP, (2013) 2 SCC 435, emphasized that Magistrates must comply with this requirement before issuing summons when the accused resides outside their jurisdiction. Failure to do so can render the summoning order invalid.
Section 225 of the BNSS provides for a limited police inquiry ordered by a Magistrate, which differs significantly from a standard, full-fledged investigation. The specific goal of this inquiry is to verify, on a prima facie basis, the allegations made in the complaint. This assessment relies exclusively on the contents of the complaint and the evidence provided by the complainant's witnesses. Following the inquiry, the police officer submits a report to the Magistrate stating whether sufficient grounds appear to exist to proceed against the accused. Notably, this process occurs without the accused's presence (in absentia), and their potential defence or version of events is not examined during this preliminary step.
If a Magistrate issues a summons without conducting the required inquiry under Section 225 of the BNSS, the accused has valid grounds to challenge the summons. Typically, individuals file such challenges before the High Court with jurisdiction over the issuing court. Under Section 528 of the BNSS, High Courts possess the authority to quash summons when Magistrates fail to comply with procedural requirements since High Courts can exercise their inherent powers to prevent abuse of process and ensure justice.
The procedural safeguard provided in Section 225 of the BNSS plays a crucial role in protecting individuals from undue hardship and potential abuse of process in criminal proceedings initiated in alien jurisdictions. By mandating a preliminary inquiry, Indian law prevents the misuse of criminal complaints for harassment and ensures that individuals are not unfairly burdened by legal processes far from their residences.
About the author: Lokesh Aidasani is a Senior Associate at BTG Advaya.
Disclaimer: The opinions expressed in this article are those of the author(s). The opinions presented do not necessarily reflect the views of Bar & Bench.
If you would like your Deals, Columns, Press Releases to be published on Bar & Bench, please fill in the form available here.