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PETITIONER: DR. S.S. KHANNA

       Vs.

RESPONDENT: CHIEF SECRETARY, PATNA & OTHERS

DATE OF JUDGMENT12/04/1983

BENCH: VENKATARAMIAH, E.S. (J) BENCH: VENKATARAMIAH, E.S. (J) SEN, AMARENDRA NATH (J)

CITATION:  1983 SCR  (2) 724        1983 SCC  (3)  42  1983 SCALE  (1)376

ACT:      Code of  Criminal Procedure,  1973  (Act  11  of  1974) Sections 202,  300 and  319-Scope and  Nature  of-Whether  a person against  whom a  complaint is  filed along  with some other person  and who  after an enquiry under Section 202 of the Code  is not  proceeded against  by  the  Court  can  be summoned at  a later  stage under Section 319 of the Code to stand trial  for the  same or  connected offence or offences along with  the other  persons against whom process had been issued earlier by the Court-Principles of Issue estoppel and Autre  fois,   applicability  of-Article   20  (2)   of  the Constitution of India, 1950.

HEADNOTE:      The General  Secretary of  the Employees Association of the National  Institute of  Foundry  and  Forge  Technology, Ranchi  filed   a  complaint   before  the   Chief  Judicial Magistrate, Ranchi  to take  action against Banktesh Prasad. the Security Officer of the Institute and the Appellant, the Director of  the Institute, alleging that both had committed certain acts  amounting to  offences punishable  the  former under Sections.  323  and  504  IPC  and  the  latter  under Sections 323  and 506  IPC. After recording the statement of the complainant  and the  evidence of six witnesses under s. 202 Cr.  Procedure Code  1973, the Chief Judicial Magistrate felt that  there was  no  prima  facie  case  made  out  for proceeding against the appellant and accordingly he declined to issue  process against  him. A revision petition filed by the complainant  against that  order was  dismissed  by  the Judicial Commissioner,  Ranchi. However,  in the  course  of further proceedings against Banktesh Prasad, the First Class Judicial Magistrate,  Ranchi to  whose Court the proceedings were transferred  allowed an  application under  section 319 filed by  the complainant to the effect that since it was in the further evidence of the witnesses that the appellant had also taken out his revolver and threatened to shoot and kill the complainants’  party, he  should be  summoned  to  stand trial along  with Banktesh  Prasad. The appellant questioned the order  of the  Magistrate before the Patna High Court at Ranchi in a Revision Petition. That Petition was dismissed.      Hence the appeal by Special Leave.      Allowing the appeal, the Court

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^      HELD: 1  :  1  Having  regard  to  the  nature  of  the proceedings under  Section 202  of  the  Criminal  Procedure Code, it  may be difficult to hold that there is a legal bar based on  the principle  of issue  estoppel to proceed under Section 319  against a person complained against on the same material, if  the Court  has  dismissed  a  complaint  under Section 203. But it is not necessary 725 to express  any final opinion on that question since, in the instant case, it is seen that the magistrate decided to take action under  section 319  of the Code on the basis of fresh evidence which  was brought  on  record  in  the  course  of proceedings that  took place  after the inquiry contemplated under Section  202 of the Code was over and in the course of the trial against Banktesh Prasad. [730 G-H, 731 A-B]      1 : 2 Even when an order of the magistrate declining to issue process  under Section  202 is  confirmed by  a higher court, the  jurisdiction of the magistrate under Section 319 remains unaffected, if other conditions are satisfied. [731- B]      1 :  3 The  autre-fois principle  adumbrated in Section 300 of  the Code cannot, however, apply to this case. In the instant case,  the magistrate  had good reason to summon the appellant under  Section 319 of the Code, as it appears from the evidence  led at  the trial that there was a strong case made out  against the  appellant  for  joining  him  in  the criminal case as an accused. [731 B, 732 D]      Pramathanath Taluqdar  v. Saroj  Ranjan  Sarkar  [1962] Suppl. 2  SCR 297;  Municipal Corporation  of Delhi  v.  Ram Kishan Rohatgi and ors. [1983] 1 S.C.C. 1 followed.      2 :  1 The  object of  the inquiry under Section 202 of the Code  is the  ascertainment  of  the  fact  whether  the complaint has  any valid foundation calling for the issue of process to  the person complained against or whether it is a baseless one  on which  no action need be taken. Section 202 does not require any adjudication to be made about the guilt or otherwise  of the  person against  whom the  complaint is preferred. [728 H, 729 A-B]      2 :  2 An  inquiry under Section 202 of the Code is not in the  nature of  a trial  for there can be in law only one trial in  respect of  any  offence  and  that  a  trial  can commence only  after the  process is  issued to the accused. The said  proceedings are  not strictly  proceedings between the complainant  and the  accused. A  person against  whom a complaint is  filed does  not become  an accused until it is decided  to   issue  process   against  him.   Even  if   he participates in  the proceedings  under Section  202 of  the Code, he  does so  not as  an accused but as a member of the public. [728 G-H]      Vadilal Panchal  v. Dattatraya  Dulaji Ghadigaonker and Anr., [1961]  1 S.C.R.  1;  Chandra  Deo  Singh  v.  Prokash Chandra Bose and Anr., [1964] 1 S.C.R. 639, referred to.

JUDGMENT:      CRIMINAL APPELLATE  JURISDICTION: Criminal  Appeal  No. 481 of 1980      Appeal by  Special Leave  from the  Judgment and  Order dated the  2nd May, 1979 of the Patna High Court in Criminal Misc. No. 405 of 1979.      D.P. Singh, and V.J. Francis for the appellant. 726      D. Goburdhan for the Respondent.

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    D.P. Mukherjee for Complainant.      The Judgment of the Court was delivered by      VENKATARAMIAH, J.  The question  for  consideration  in this case  is whether  a person  against whom a complaint is filed alongwith  some other  person and who after an enquiry under section  202 of  the Code  of Criminal Procedure, 1973 (Act 2 of 1974) (hereinafter referred to as the Code) is not proceeded against  by the  court can  be summoned at a later stage under  section 319  of the Code to stand trial for the very same  or connected  offence or  offences alongwith  the other person against whom process had been issued earlier by the court.      This is an appeal by special leave against the judgment and order  dated May  2, 1979  of the High Court of Patna in Criminal Misc. No. 405 of 1979.      A complaint  was preferred  by  the  second  respondent herein before the Chief Judicial Magistrate, Ranchi, to take action  against   the  appellant  and  one  Banktesh  Prasad alleging that  Banktesh Prasad  had committed  certain  acts which amounted to offences punishable under sections 323 and 504 I.P.C.  and that  the appellant  had abetted the offence under  section   323  and  had  also  committed  an  offence punishable under  section 506  I.P.C. .  Banktesh Prasad was the Security  Officer of  the National  Institute of Foundry and Forge  Technology, The  appellant was  its Director. The complainant was  the General Secretary of the association of the employees  of the  Institute. The  alleged  incident  is stated to  have taken  place as  a consequence  of a certain labour  dispute.   After  recording  the  statement  of  the complainant on  solemn affirmation  and the  evidence of six witnesses, the Chief Judicial Magistrate felt that there was no prima  facie case  made out  for proceeding  against  the appellant and  accordingly  he  declined  to  issue  process against him.  He,  however,  took  cognizance  of  the  case against Banktesh  Prasad and  issued process against him for his  appearance   on  September   15,  1976.  The  case  was transferred to  the file  of the  Judicial Magistrate,  Ist, Class, Ranchi for disposal. The complainant filed a revision petition before  the Judicial  Commissioner, Ranchi, against the order  of the  Chief Judicial  Magistrate  dropping  the proceedings  against   the  appellant.   That  petition  was dismissed by the Judicial Commissioner on November 24, 1976. 727      The proceedings  against Banktesh Prasad were continued before  the  Judicial  Magistrate,  Ist  Class,  Ranchi,  as directed by  the Chief Judicial Magistrate. In the course of those  proceedings,   it  appears,   that  the   prosecution witnesses deposed  on oath  that the  appellant had  ordered Banktesh  Prasad   to  hit  the  complainant  and  that  the appellant had  also taken out his revolver and threatened to shoot and  kill the  complainant’s  party  by  pointing  the revolver towards  them. After such evidence was recorded the complainant made  an application  under section  319 of  the Code to  summon  the  appellant  to  stand  trial  alongwith Banktesh  Prasad.   That  application  was  allowed  by  the magistrate  on   April  2,   1979  holding  that  there  was sufficient  evidence   in  the   case  suggesting  that  the appellant had  committed offences  punishable under sections 323/109 and  506 I.P.C.  and that  the appellant  should  be summoned to  face the trial alongwith the other accused. The appellant questioned  the order of the magistrate before the Patna High  Court at  Ranchi in  a revision  petition.  That petition was  dismissed. This  appeal by  special  leave  is filed against  the order  of the  High Court on the revision petition.

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         Section 319 of the Code reads:           "319.  Power  to  proceed  against  other  persons      appearing to  be guilty  of offence-(1)  Where, in  the      course of any inquiry into, or trial of, an offence, it      appears from the evidence that any person not being the      accused has committed any offence for which such person      could be tried together with the accused, the Court may      proceed against  such person  for the  offence which he      appears to have committed.           (2) Where  such person is not attending the Court,      he may be arrested or summoned, as the circumstances of      the case may require, for the purpose aforesaid.           (3) Any  person attending  the Court, although not      under arrest or upon a summons, may be detained by such      Court for the purpose of the inquiry into, or trial of,      the offence which he appears to have committed.           (4) Where  the Court  proceeds against  any person      under sub-section (1) then-      (a)  the proceedings in respect of such person shall be           commenced afresh, and the witnesses re-heard; 728      (b)  subject to  the provisions of clause (a), the case           may proceed  as if such person had been an accused           person when  the  Court  took  cognizance  of  the           offence  upon  which  the  inquiry  or  trial  was           commenced."      The provision  corresponding to section 319 of the Code was section  351 of  the former  Criminal Procedure  Code of 1898. Section  351 of  the old Code provided that any person attending a criminal court although not under arrest or upon a summons,  might be  detained by such court for the purpose of inquiry  into or trial of any offence of which such court could take  cognizance and  which from  the  evidence  might appear to have been committed and might be proceeded against as though  he had  been arrested  or  summoned.  It  further provided that  when such  detention took place in the course of an inquiry under Chapter XVIII of the old Code or after a trial had  begun the  proceedings in  respect of such person should be commenced afresh and the witnesses re-heard. Under that section it was not open to the Court to summon a person who was  not attending  the court  and join him in a pending criminal proceeding  even though  it appeared  to the  court that evidence  in the proceedings disclosed that such person was also involved in the commission of any offence connected with the  one for which the accused already before the Court was on  trial. Since  it was  found desirable to empower the criminal court  to take  action against  such  person  also, Parliament on  the recommendation  of the  Law Commission in its 41st  Report introduced  section 319 in the present code as set out above.      The point  to be decided in this case is whether when a magistrate had declined to issue process against a person at the stage  of an  inquiry under  section 202 of the Code, he can later on summon him under section 319 of the Code.      An inquiry  under section 202 of the Code is not in the nature of  a trial for there can be in law only one trial in respect of  any offence  and that  a trial can commence only after process is issued to the accused. The said proceedings are not strictly proceedings between the complainant and the accused. A person against whom a complaint is filed does not become an  accused until  it is  decided  to  issue  process against him.  Even if  he participates  in  the  proceedings under section  202 of the Code, he does so not as an accused but as  a member  of the  public. The  object of the inquiry under section 202

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729 is the  ascertainment of  the fact whether the complaint has any valid foundation calling for the issue of process to the person complained against or whether it is a baseless one on which no  action need be taken. The section does not require any adjudication  to be made about the guilt or otherwise of the person  against whom  the complaint is preferred. Such a person cannot  even be  legally called to participate in the proceedings under  section 202  of the  Code. The  nature of these proceedings  is fully  discussed by  this Court in two cases Vadilal  Panchal v.  Dattatraya Dulaji  Ghadigaonker & Anr.(1) and  Chandra Deo  Singh v.  Prokash Chandra  Bose  & Anr.(2) in  which section 202 of the former Code of Criminal Procedure arose  for consideration.  The present section 202 being a  substantial reproduction of the former section 202, the observations  made  by  this  Court  on  the  nature  of proceedings under  that section would have to be accepted as governing the proceedings under section 202 of the Code.      Even so  two of  the modifications  made in the present section 202(1)  deserve attention.  In section 202(1) of the old Code where a magistrate decided to postpone the issue of process  for   compelling  the   attendance  of  the  person complained against  he had  to record  reasons in writing in support of such decision. That obligation is no longer there under the  present section. Secondly, the purpose of holding an inquiry  under section  202(1) of the old code was stated to  be   ’ascertaining  the   truth  or   falsehood  of  the complaint’. Under  the new  section the inquiry contemplated is for  the purpose  of deciding  whether or  not  there  is sufficient ground  for proceeding.  The amendment  now  made brings out  clearly the purpose of the inquiry under section 202 even  though words  used in  the former section had also been understood  by courts  in the  same way  in  which  the present section is worded. Thus the section has been brought in accord  with the  language of  section 203 which empowers the magistrate  to dismiss  a complaint  if he is of opinion ’that there  is no  sufficient ground  for proceeding’.  The object of the latter change in section 202 is to be found in the 41st Report of the Law Commission which opined thus:           "16.9. Section  202 says in terms that the further      inquiry or investigation is intended for the purpose of      ascertaining the truth or falsehood of the complaint". 730      We  consider   this  inappropriate,  as  the  truth  or      falsehood of the complaint cannot be determined at that      stage; nor  is it possible for a magistrate to say that      the complaint  before him  is true  when he  decides to      summon the  accused. The  real purpose  is to ascertain      whether grounds  exist for  ’proceeding further", which      expression is  in fact  used in  section 203’. We think      therefore that  the  language  of  section  202  should      correspond to  the language of section 203, and we have      accordingly made suitable verbal alterations."      The effect  of dismissal  of a  complaint under section 203 of  the old  Code has  been dealt  with by this Court in Pramatha Nath  Taluqdar v. Saroj Ranjan Sarkar(1). Kapur, J. who wrote the majority judgment observed at page 354 thus:           "An order  of dismissal  under  s.  203,  Criminal      Procedure Code, is however, no bar to the entertainment      of a  second complaint on the same facts but it will be      entertained only  in  exceptional  circumstances,  e.g.      where the  previous order  was passed  on an incomplete      record or  on a  misunderstanding of  the nature of the      complaint  or  it  was  manifestly  absurd,  unjust  or      foolish or  where  new  facts  which  could  not,  with

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    reasonable diligence,  have been  brought on the record      in the previous proceedings have been adduced."      As  rightly   commented  by   the  Law  Commission  the circumstances mentioned  by the  Court in  the above passage cannot be  exhaustive of all the circumstances when a second complaint can  be in  otherwise  in  entertained.  A  second complaint may  be entertained  appropriate cases too, though it should be for extraordinary reasons.      Having regard  to the  nature of  the proceedings under section 202  of the  Code, it  may be difficult to hold that there is  a legal  bar  based  on  the  principle  of  issue estoppel to  proceed against  a person complained against on the same  material if  the Court  has dismissed  a complaint under section  203. But  it is  not necessary to express any final opinion on that question since in the instant case, it is seen  that the  magistrate decided  to take  action under section 319 of the Code on the basis of fresh evidence which was 731 brought on record in the course of the proceedings that took place after  the inquiry  contemplated under  section 202 of the Code  was over  and in  the course  of the trial against Banktesh Prasad.  The autre  fois principle  adumbrated,  in section 300 of the Code cannot however, apply to this case.      Even when an order of the magistrate declining to issue process under  section 202  is confirmed  by a higher court, the jurisdiction of the magistrate under section 319 remains unaffected if  other conditions  are satisfied. In Municipal Corporation of Delhi v. Ram Kishan Rohtagi & Ors(1) to which one of  us (Venkataramiah, J) was a party, this Court had to deal with  the scope  of section  319. In  that case  a Food Inspector filed  a complaint  before a magistrate requesting him to take action against the manager and all the directors of  a   company  which   was  engaged  in  the  business  of manufacture of  a certain  brand of  toffees  for  violating certain provisions  of the  Prevention of  Food Adulteration Act. When  the magistrate  proceeded to  take action against the accused,  they approached  the High  Court under section 482 of  the Code with a prayer for quashing the proceedings. The High  Court quashed  the proceedings against all of them on the  ground that  there was  no averment that any of them was in  charge of  the affairs  of  the  company  which  was manufacturing the  toffees. On  appeal to  this  Court,  the order of  the High  Court in  so  far  as  the  manager  was concerned was  set aside  as from  the very  nature  of  his duties it  was clear  that he  was liable  to  be  proceeded against for  the offence  said to have been committed by the company. But as regards the directors, the order of the High Court was  upheld as  at that  stage it was found that there was not  sufficient material to proceed against them. But it was, however, made clear that if the prosecution was able to produce evidence  against any  of those directors at a later stage it  was open to the trial court to proceed against him under section 319 of the Code. In that connection this Court observed at Page 8 thus:           "This provision gives ample powers to any court to      take cognizance and add any person not being an accused      before it  and try  him along  with the  other accused.      This  provision   was  also  the  subject-matter  of  a      decision by  this Court  in Joginder  Singh v. State of      Punjab  (1979)  1  S.C.C.  345  where  Tulzapurkar,  J.      speaking for the Court observed thus; (at page 349) 732           A plain  reading of Section 319(1) which occurs in      Chapter XXIV  dealing with  general  provisions  as  to

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    inquiries and  trials, clearly shows that it applies to      all the Courts including a Sessions Court and as such a      Sessions Court  will have  the power to add any person,      not being the accused before it, but against whom there      appears during trial sufficient evidence indicating his      involvement in  the offence,  as an  accused and direct      him to be tried along with the other accused,...           In  these   circumstances,   therefore,   if   the      prosecution can  at any  stage produce  evidence  which      satisfies the court that the other accused or those who      have  not   been  arrayed   as  accused   against  whom      proceedings have  been quashed  have also committed the      offence the  Court can take cognizance against them and      try them along with other accused. But, we would hasten      to add that this is really an extraordinary power which      is conferred  on the  court and  should  be  used  very      sparingly and  only if  compelling  reasons  exist  for      taking cognizance against the other person against whom      action has  not been taken. More than this we would not      like to  say anything  further at  this stage. We leave      the entire  matter  to  the  discretion  of  the  court      concerned so  that it  may act  according  to  law.  We      would, however,  make it  plain that the mere fact that      the proceedings have been quashed against respondents 2      to 5  will not  prevent the  court from  exercising its      discretion if  it is  fully satisfied  that a  case for      taking cognizance against them has been made out on the      additional evidence led before it."      It is  thus clear  that it  cannot  be  said  that  the magistrate had  no power to proceed against the appellant in this case.  On looking  into the  record we  are of the view that the  magistrate had good reason to summon the appellant under section  319 of  the  Code  as  it  appears  from  the evidence led  at the trial that there was a strong case made out against  the appellant  for joining  him in the criminal case as  an accused.  It is, however, not necessary to refer to this  aspect of the matter in detail having regard to the nature of the order we propose to pass in this case.      In the  instant case,  the complaint was filed in 1976. There was  also a counter complaint filed against the second respondent. The 733 Magistrate convicted  the second respondent in that case. On appeal,  the   Additional  Judicial   Commissioner,   Ranchi acquitted the  second  respondent  and  the  said  order  of acquittal has become final. The second respondent who was an employee of  the National  Institute of  Foundry  and  Forge Technology, Ranchi had been suspended for involvement in the incident in  question. That  order of  suspension has  since been revoked  and he has rejoined his duties after receiving all back  wages. No  other workman  has been  discharged  or punished for  participating in  the incident. On November 4, 1981, a  settlement has  been arrived  at between  the NIFFT Employees’  Association  and  the  management  settling  all pending issues.  As a  consequence of  the settlement, it is stated  that   the  second  respondent  has  also  filed  an application before  the Magistrate  to withdraw the original complaint out  of which  these proceedings  have arisen.  In view of these events which have taken place since the filing of the  complaint and  the nature of the offences alleged to have been committed by the appellant and in the interests of industrial peace,  we feel that while we agree with the High Court on  the order  made by it, these proceedings initiated against the  appellant should be dropped. We, therefore, set aside the  orders passed  by  the  High  Court  and  by  the

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Magistrate and  dismiss the  application filed by the second respondent under section 319 of the Code.      The appeal is accordingly allowed. S.R.                                         Appeal allowed. 734