Section 204 CrPC vs Section 227 BNSS — Issue of Process

In India, Section 227 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) replaced Section 204 of the Code of Criminal Procedure, 1973 (CrPC) on 1 July 2024. The test for summoning an accused, "sufficient ground for proceeding", is unchanged; a new proviso lets summons and warrants be issued through electronic means.

At a glance

Section 227 is procedural, so the First Schedule does not classify it. Whether a case is a summons-case or a warrant-case turns on the offence: a warrant-case relates to an offence punishable with death, imprisonment for life or imprisonment for a term exceeding two years (Section 2(1)(z) BNSS, formerly Section 2(x) CrPC); every other case is a summons-case (Section 2(1)(x)). Section 227 opens Chapter XVII of the BNSS ("Commencement of proceedings before Magistrates"), which was Chapter XVI of the CrPC.

What changed

• Minor edit — clause (1)(a): "he shall issue his summons for the attendance of the accused, or" becomes "he shall issue summons to the accused for his attendance; or". The duty ("shall") is the same.
• New — proviso to sub-section (1): "Provided that summons or warrants may also be issued through electronic means." Section 204 CrPC had no such proviso. It sits alongside Section 63(ii) BNSS, which allows a summons "in an encrypted or any other form of electronic communication" bearing the image of the seal of the court or a digital signature.
• Identical — clause (1)(b) and sub-sections (2), (3) and (4).
• Minor edit — sub-section (5): "Nothing in this section shall be deemed to affect the provisions of section 87" becomes "section 90". Both are the power to issue a warrant in lieu of, or in addition to, summons, for recorded reasons, where the court believes the person has absconded or will not obey, or where a duly served person fails to appear without reasonable excuse.
• Neighbouring changes (not in Section 227): Section 228 BNSS lets the Magistrate permit the accused to appear by his "advocate" (Section 205 CrPC said "pleader"). Section 229 BNSS raises the fine that can be specified in a special summons for a petty offence, and the petty-offence ceiling, from one thousand to five thousand rupees (Section 206 CrPC).

Statutory text (relevant extract)

Extract, Section 204(1) CrPC (repealed from 1 July 2024):

(1) If in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding, and the case appears to be— (a) a summons-case, he shall issue his summons for the attendance of the accused, or

Extract, Section 227(1) BNSS:

(1) If in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding, and the case appears to be— (a) a summons-case, he shall issue summons to the accused for his attendance; or (b) a warrant-case, he may issue a warrant, or, if he thinks fit, a summons, for causing the accused to be brought or to appear at a certain time before such Magistrate or (if he has no jurisdiction himself) some other Magistrate having jurisdiction: Provided that summons or warrants may also be issued through electronic means.

How it works — the steps to process

1. Cognizance. The Magistrate takes cognizance under Section 210 BNSS on a complaint, a police report or other information. On a complaint, the accused must first be given an opportunity of being heard (Section 223(1), first proviso). See the Section 190 page.
2. Optional pre-process inquiry (complaint cases). The Magistrate may postpone process and inquire himself or direct an investigation, and must do so where the accused lives outside his jurisdiction (Section 225(1)).
3. Decision. If there is no sufficient ground for proceeding, he dismisses the complaint and briefly records reasons (Section 226). If there is sufficient ground, he issues process under Section 227.
4. Form of process. Summons-case: summons (clause (a)). Warrant-case: a warrant, or a summons if he thinks fit (clause (b)). Either may be issued through electronic means (proviso).
5. Pre-conditions. A list of prosecution witnesses must be on file (Section 227(2)); process-fees, where payable, must be paid (Section 227(4)).
6. Enclosure. In a case on a written complaint, a copy of the complaint goes with every summons or warrant (Section 227(3)).
7. Appearance. When issuing a summons, the Magistrate may dispense with personal attendance and permit appearance by an advocate, while keeping the power to direct personal attendance at any stage (Section 228). A warrant may still issue under Section 90 in the circumstances that section describes (Section 227(5)).

What this means in practice

For a complainant

• File the list of prosecution witnesses and pay any process-fees when the complaint is filed or soon after; Section 227(2) and (4) bar process until both are done, and non-payment within a reasonable time can lead to dismissal.

For the accused and defence advocate

• Check the summoning order for application of mind to the allegations and the material. In Lalankumar Singh the High Court had inferred a process order from the record although none had been passed; the Supreme Court held that approach unsustainable and dismissed the complaint against the appellants (paras 30-31). Bhushan Kumar holds that the order need not set out explicit reasons (paras 10-11).
• Tarsem Lal holds, for a PMLA complaint, that where the accused was not arrested till the complaint was filed a summons, not a warrant, should as a normal rule issue, and that appearing on a summons does not put the accused in custody (paras 10, 23). The Court applied Section 204 CrPC, whose words Section 227 repeats. Applications for exemption from personal attendance lie under Section 228 BNSS.
• In a complaint case, the copy of the complaint served with the summons (Section 227(3)) is the document to answer at the next stage.

For the court and its staff

• Electronic issue is now expressly permitted by the proviso to Section 227(1). Service remains governed by Sections 64 to 71 BNSS, which are not covered here; see the electronic summons scenario.

Judgments that still matter

Bhushan Kumar & Anr. v. State (NCT of Delhi) & Anr., [2012] 2 S.C.R. 696 — 4 April 2012. P. Sathasivam and J. Chelameswar JJ. (judgment by Sathasivam J.) held that at the cognizance stage the Magistrate must be satisfied "whether there is sufficient ground for proceeding and not whether there is sufficient ground for conviction" (para 8), and that Section 204 "does not mandate the Magistrate to explicitly state the reasons for issuance of summons" (para 10), because the Magistrate must have taken notice of the accusations and applied his mind to the police report and the material filed with it (para 11). It held the Section 482 petition maintainable but confirmed the High Court's order on merits and dismissed the appeals (paras 18-19). Section 227 BNSS repeats the operative words.

Lalankumar Singh & Ors. v. State of Maharashtra, [2022] 14 S.C.R. 573 (2022 INSC 1061) — 11 October 2022. B.R. Gavai and C.T. Ravikumar JJ. (judgment by Gavai J.) held that "The order of issuance of process is not an empty formality", that the formation of the Magistrate's opinion "is required to be stated in the order itself", and that the order need not contain detailed reasons (para 28), quoting, in the same paragraph, Sunil Bharti Mittal v. CBI on the words "sufficient ground for proceeding". The High Court had inferred a process order from the record where none had been passed; the Court held that approach unsustainable (para 30), allowed the appeal, quashed the impugned order together with the Chief Judicial Magistrate's order of issuance of process and the Sessions Judge's order, and dismissed the complaint against the appellants, leaving it to proceed against the other accused (para 31).

Tarsem Lal v. Directorate of Enforcement Jalandhar Zonal Office, [2024] 6 S.C.R. 864 (2024 INSC 434) — 16 May 2024. Abhay S. Oka and Ujjal Bhuyan JJ. (judgment by Oka J.) held that a PMLA complaint is governed by Sections 200 to 205 CrPC (para 23(a)). Under Section 204(1)(b) the court may issue a warrant or a summons in a warrant-case (para 7), but where the accused was not arrested till the complaint was filed, "as a normal rule, the Court should issue a summons to the accused and not a warrant" (para 23(b)). "The object of issuing a summons is to secure the accused's presence before the Court. It is not issued for taking an accused in custody" (para 10), so an accused appearing on summons need not apply for bail, though the court may take a bond under Section 88 CrPC (para 23(c)). The judgment predates the BNSS; Section 227(1)(b) repeats the words it construed.

In Re: Expeditious Trial of Cases Under Section 138 of N.I. Act 1881, [2021] 4 S.C.R. 257 (2021 INSC 257) — 16 April 2021. In an order of a five-Judge Bench (S.A. Bobde C.J., L. Nageswara Rao, B.R. Gavai, A.S. Bopanna and S. Ravindra Bhat JJ.), the Court said: "The Trial Court cannot be conferred with inherent power either to review or recall the order of issuance of process" (para 21). Dealing next with Section 322 CrPC, it said that if the trial court is informed that it lacks jurisdiction to issue process on a cheque-dishonour complaint, the proceedings shall be stayed and the case submitted to the Chief Judicial Magistrate or another Magistrate with jurisdiction (para 22).

Which law applies to your case

Section 531(2)(a) BNSS provides that an appeal, application, trial, inquiry or investigation pending immediately before 1 July 2024 is continued under the CrPC "as if this Sanhita had not come into force". On a reading of that text, where the inquiry on a complaint was already pending on that date, process is issued under Section 204 CrPC; where cognizance was taken afresh after that date, Section 227 BNSS applies. The Supreme Court's treatment of that line for cognizance is summarised on the Section 190 page. See also which law applies to an offence before 1 July 2024.

Frequently asked questions

What is the BNSS equivalent of Section 204 CrPC? Section 227 of the Bharatiya Nagarik Suraksha Sanhita, 2023 replaces Section 204 CrPC. If the Magistrate taking cognizance thinks there is sufficient ground for proceeding, he must issue summons in a summons-case, and may issue a warrant or summons in a warrant-case (Section 227(1)(a) and (b)).

What changed in Section 227 BNSS? A proviso to Section 227(1) now says that summons or warrants may also be issued through electronic means. Clause (1)(a) is reworded from 'issue his summons for the attendance of the accused' to 'issue summons to the accused for his attendance', and sub-section (5) now refers to Section 90 BNSS instead of Section 87 CrPC. Sub-sections (2) to (4) are unchanged.

Does a summoning order have to give reasons? In Bhushan Kumar v. State (NCT of Delhi) ([2012] 2 S.C.R. 696, paras 10-11) the Supreme Court held that Section 204 CrPC does not require the Magistrate to state reasons explicitly. In Lalankumar Singh v. State of Maharashtra (2022 INSC 1061, para 28) it held that the Magistrate must apply his mind, that the formation of that opinion must be stated in the order, and that detailed reasons are not required. Section 227 BNSS uses the same words, 'sufficient ground for proceeding'.

When does a Magistrate issue a warrant instead of a summons? A warrant-case is one relating to an offence punishable with death, imprisonment for life or imprisonment for more than two years (Section 2(1)(z) BNSS). In a warrant-case Section 227(1)(b) allows a warrant or, if the Magistrate thinks fit, a summons; in a summons-case clause (a) requires a summons. In Tarsem Lal v. Directorate of Enforcement (2024 INSC 434, paras 8 and 23) the Supreme Court held, for a complaint under the Prevention of Money Laundering Act, 2002, that where the accused was not arrested before the complaint was filed, a summons should normally be issued.

Can summons be sent by WhatsApp or email under the BNSS? Section 227(1) BNSS has a proviso that summons or warrants may also be issued through electronic means, and Section 63(ii) BNSS allows a summons in an encrypted or any other form of electronic communication bearing the image of the court's seal or a digital signature. Section 204 CrPC had no such proviso. Which platforms qualify depends on rules and practice not covered here.

What must accompany the process in a complaint case? Under Section 227(2) BNSS, no summons or warrant may issue until a list of prosecution witnesses has been filed. Under Section 227(3), in a proceeding on a written complaint, every summons or warrant must be accompanied by a copy of the complaint. Under Section 227(4), process is not issued until any payable process-fees are paid, and the complaint may be dismissed if they are not paid within a reasonable time.

Can a Magistrate recall an order issuing process? In In Re: Expeditious Trial of Cases Under Section 138 of N.I. Act 1881 (2021 INSC 257, para 21), a five-Judge Bench of the Supreme Court said that the trial court cannot be conferred with inherent power to review or recall the order of issuance of process. In para 22 it added that where the trial court is informed that it lacks jurisdiction to issue process on a cheque-dishonour complaint, the proceedings shall be stayed and the case submitted to the Chief Judicial Magistrate or another Magistrate having jurisdiction.

Related

• Section 190 CrPC vs Section 210 BNSS — cognizance by Magistrate
• Section 200 CrPC vs Section 223 BNSS — private complaint
• Section 207 CrPC vs Section 230 BNSS — supply of documents
• Summons on WhatsApp and email — electronic service under the BNSS
• Section 482 CrPC vs Section 528 BNSS — inherent powers of the High Court
• CrPC to BNSS master table
• Section 2 CrPC vs Section 2 BNSS — Definitions
• Sections 61–69 CrPC vs Sections 63–71 BNSS — Summons: Form, Service and Proof of Service
• Sections 177–189 CrPC vs Sections 197–209 BNSS — Place of Inquiry and Trial
• Sections 206–209 CrPC vs Sections 229–232 BNSS — Special Summons in Petty Offences and Commitment to the Court of Session

Sources

• Bharatiya Nagarik Suraksha Sanhita, 2023 (Gazette text): Sections 2(1)(x), 2(1)(z), 63, 90, 225, 226, 227, 228, 229 and 531.
• Code of Criminal Procedure, 1973 (India Code text): Sections 2(w), 2(x), 87, 202, 203, 204, 205 and 206.
• Judgments read in full text: Bhushan Kumar v. State (NCT of Delhi) (2012_2_696_707_EN.md); Lalankumar Singh v. State of Maharashtra (2022_14_573_590_EN.md); Tarsem Lal v. Directorate of Enforcement (2024_6_864_893_EN.md); In Re: Expeditious Trial of Cases Under Section 138 of N.I. Act 1881 (2021_4_257_273_EN.md).

This page explains the statutory text and the judgments cited as they stand. It is not legal advice; for a specific case, consult an advocate.