सं Samvidhan

Bharatiya Nagarik Suraksha Sanhita, 2023

Section 190

Cases to be sent to Magistrate, when evidence is sufficient

Why this exists

This provision (carried forward from Section 170 of the old Code of Criminal Procedure) ensures that once police investigation gathers enough evidence, the case actually reaches a court rather than languishing with the police. It balances the need to produce the accused before a judicial authority with protection against unnecessary detention — allowing bail-type security in bailable offences and making clear that lack of custody cannot block a valid police report from being accepted by the Magistrate.

How courts read it

Courts have long clarified that the equivalent old provision (CrPC S.170) does not mean an accused must always be handcuffed or physically produced in custody — sending 'under custody' has been interpreted flexibly to include producing the accused through proper legal process. Courts have also emphasized that the Magistrate's obligation to accept the report is mandatory even when the accused has not been arrested, preventing police inaction or Magistrate’s refusal from stalling prosutions.

Common misconceptions
  • Myth: The accused must always be handcuffed and physically taken to court under this section.
    Fact: Courts have read 'forward the accused under custody' flexibly — it means through proper legal process, not necessarily physical restraint, especially for bailable offences where a bond suffices.
  • Myth: If the accused was never arrested, the Magistrate can refuse to accept the police report.
    Fact: The proviso to sub-section (1) explicitly says the Magistrate cannot refuse the report merely because the accused was not taken into custody.