Bharatiya Nagarik Suraksha Sanhita, 2023
Section 190
Cases to be sent to Magistrate, when evidence is sufficient
(1) If, upon an investigation under this Chapter, it appears to the officer in charge of the police station that there is sufficient evidence or reasonable ground as aforesaid, such officer shall forward the accused under custody to a Magistrate empowered to take cognizance of the offence upon a police report and to try the accused or commit him for trial, or, if the offence is bailable and the accused is able to give security, shall take security from him for his appearance before such Magistrate on a day fixed and for his attendance from day to day before such Magistrate until otherwise directed: Provided that if the accused is not in custody, the police officer shall take security from such person for his appearance before the Magistrate and the Magistrate to whom such report is forwarded shall not refuse to accept the same on the ground that the accused is not taken in custody.
(2) When the officer in charge of a police station forwards an accused person to a Magistrate or takes security for his appearance before such Magistrate under this section, he shall send to such Magistrate any weapon or other article which it may be necessary to produce before him, and shall require the complainant
(if any) and so many of the persons who appear to such officer to be acquainted with the facts and circumstances of the case as he may think necessary, to execute a bond to appear before the Magistrate as thereby directed and prosecute or give evidence (as the case may be) in the matter of the charge against the accused.
(3) If the Court of the Chief Judicial Magistrate is mentioned in the bond, such Court shall be held to include any Court to which such Magistrate may refer the case for inquiry or trial, provided reasonable notice of such reference is given to such complainant or persons.
(4) The officer in whose presence the bond is executed shall deliver a copy thereof to one of the persons who executed it, and shall then send to the Magistrate the original with his report.
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.