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PETITIONER: SOHAN LAL AND ORS.

       Vs.

RESPONDENT: STATE OF RAJASTHAN

DATE OF JUDGMENT21/08/1990

BENCH: SAIKIA, K.N. (J) BENCH: SAIKIA, K.N. (J) RAMASWAMY, K.

CITATION:  1990 AIR 2158            1990 SCR  (3) 809  1990 SCC  (4) 580        JT 1990 (3)   599  1990 SCALE  (2)307

ACT:     Criminal  Procedure  Code, 1973: Sections 216,  319  and 398-Expression of ’any person not being  accused’--Interpre- tation     of-Courts    taking    fresh    cognizance     of offences---Validity of.

HEADNOTE:     One ’S’ lodged a First Information Report alleging  that the  appellants  and two others were pelting stones  at  the house of informant, thereby causing damage to it and  injur- ing three women who were sitting at the chowk of the  house. After  completing  investigation the police  framed  charges under sections 147, 323, 325, 335 and 427 IPC and  forwarded the  charge sheet to the Judicial Magistrate  under  section 173  Cr.P.C. Taking cognizance and after hearing  the  argu- ments, the Judicial Magistrate discharged appellants 4 and 5 of all the charges and ordered that appellants 1, 2 and 3 be charged only under section 427 IPC.     Later,  the  Assistant Public  Prosecutor  submitted  an application  to the Magistrate under Section 2 16  Cr.  P.C. signed by one of the Prosecution Witnesses, for amending the charge claiming that a prima facie case under sections  147, 325 and 336 IPC was made out. After hearing the parties, the Magistrate  allowed  the said application.  This  order  was challenged  before the High Court by way of  Revision  Peti- tions.  The  Petitions  were dismissed by  the  High  Court, holding  that  it was not a case of reviewing the  order  of discharge passed by the Magistrate, but was a case of taking cognizance of the offence on the basis of evidence  recorded by the Magistrate himself, which was not prohibited in  law. It was also held that under section 319 Cr. P.C. the  Magis- trate was fully competent to take cognizance of the offences on the basis of evidence recorded by him though for the same offences order of discharge was passed by him earlier.     Aggrieved at the aforesaid order of the High Court,  the appellants have preferred these appeals, by special leave. On behalf of the appellants it was contended that the Magis- trate 810 committed  error of jurisdiction in passing  the  subsequent order  and  that  he could not have revised  his  own  order

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discharging  the appellants. It was also contended  that  s. 319  Cr. P.C. was applicable only to a person not being  the accused, and so the accused could not have been discharged.     The Respondent-State contended that the Magistrate found enough  materials for taking cognizance and framing  charges under  sections 147, 323, 325 and 336 IPC and he had  juris- diction to do so under section 319 Cr. P.C. irrespective  of the application under s. 216 Cr. P.C. filed by the Assistant Public Prosecutor. Allowing the appeals,     HELD:  1.1.  Under  Section 216 Cr. P.C.,  ’and  to  any charge’ means the addition of a new charge. An alteration of a  charge means changing or variation of an existing  charge or making of a different charge. Addition to and  alteration of  a charge or charges implies one or more existing  charge or  charges. When the appellants 4 and 5 were discharged  of all the charges and no charge existed against them, natural- ly an application under s. 216 Cr. P.C. was not maintainable in  their case. The Magistrate therefore while disposing  of the application under s. 216 Cr. P.C. only had no  jurisdic- tion to frame charges against the appellants 4 and 5. In his order the Magistrate did not say that he was proceeding  suo motu  against them though he said that s. 319 Cr.  P.C.  was also clear in this connection. [815B-D]     1.2. As regards appellants 1, 2 and 3, they were already accused  in  the case. Section 216 Cr.  P.C.  envisages  the accused  and the additions to and alterations of charge  may be done at any time before record was satisfied that charges ought also to be framed under the other sections with  which they  were  charged in the charge sheet. That was  also  the prayer  in  the Assistant Public  Prosecutor’s  application. However,  the Magistrate invoked his jurisdiction  under  s. 319 Cr. P.C. [815E-F]     2. The provisions of s. 319 had to be read in consonance with the provisions of s. 398 of the Code. Once a person  is found  to have been the accused in the case he goes  out  of the reach of s. 319. Whether he can be dealt with under  any other provisions of the Code is a different question. In the case of the accused who has been discharged under the  rele- vant provisions of the Code, the nature of finality to  such order 811 and  the  resultant protection’ of  the  persons  discharged subject to revision under s, 398 of the Code may not be lost sight of. This should be so because the complainant’s desire for vengeance has to be tempered with. [824E-F]     Chandra Deo Singh v. Prokash Chandra Bose & Anr., [1964] 1  SCR  639; Joginder Singh & Anr. v. State  of  Punjab  and Anr.,  [1979] 2 SCR 306; Municipal Corporation of  Delhi  v. Ram Kishan Rohtagi & Ors., [1983] 1 SCR 884; Dr. S.S. Khanna v.  Chief Secretary, Patna & Ors., [1983] 2 SCR 724;  relied on.     State v. Gangaram Kalite, AIR 1965 Assam and Nagaland 91 approved.     Saraswatiben  v.  Thakurlal Himmatlal & Anr.,  AIR  1967 Gujarat  263: Amarjit Singh @ Amba v. The State  of  Punjab, Punjab Law Reporter Vols. 85 (1983) p. 324, disapproved.     General  view  of the Criminal Law of England  by  James Stephen, p. 99 referred to.     3.  The Assistant Public Prosecutor’s application  under s.  216, in so far as the appellants 1 to 3 were  concerned, could be dealt with under s. 216. Appellants 3 & 5 could  be dealt with neither under s. 216 nor under s. 319. The  order of  the Magistrate as well as that of the High Court  in  so far as the appellants 4 and 5 are concerned, are set  aside.

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[824G-H]

JUDGMENT:     CRIMINAL  APPELLATE JURISDICTION: Criminal  Appeal  Nos. 452-53 of 1990.     From  the  Judgment  and Order dated  23.3.1989  of  the Rajasthan High Court in S.B. Cr. R. No. 426 and 325 of 1982.     Badridas  Sharma,  Manoj Jain, H.  Shekhar,  Anil  Kumar Gupta, Indra Makwana, Prem Sunder Jha, Lahoty and Ms.  Meeta Sharma for the Appearing Parties. The Judgment of the Court was delivered by K.N. SAIKIA, J. Special leave granted. These two criminal appeals are from the common Judgment of 812 the High Court of Rajasthan dated 23.3.1989 in S.B. Criminal Revision  No. 426 of 1982 filed by the appellants Nos. 1,  2 and  3 and S.B. Criminal Revision No. 325 of 1982  filed  by the appellants Nos. 4 and 5 herein.     On  21.4.1980 one Shanti Lal lodged a report at  Bikaner Police  Station stating therein that the appellants and  two others namely Uttam Chand and Hanuman Chand at about 2  P.M- that day were pelting stones at the informant’s house  caus- ing  damage to it and that Durgabai, Tara and Sunita who  at the  relevant  time were sitting at the chowk of  the  house were injured. After recording F.I.R. No. 22 dated 21.4. 1980 and  on  completion of investigation police  framed  charges under  s. 147, 323, 325, 336 and 427 I.P.C. and  the  charge sheet was forwarded to the Judicial Magistrate No. 2 Bikaner under  s.  173 Cr. P.C. After taking  cognizance  and  after hearing  the arguments, the Judicial Magistrate, Bikaner  by his  order dated 3.10.1980 in Criminal Case No. 165 of  1980 had  been pleased to discharge the appellants Nos. 4 and  5, namely,  Bijya Bai and Jiya Bai of all the charges  levelled against them. Appellants Nos. 1, 2 and 3, namely, Sohan Lal, Padam Chand and Vishnu were ordered to be charged only under s.  427  I.P.C. on the basis of site inspection  and  injury report:     On 25.2.82 the Assistant Public Prosecutor submitted  an application  to the Magistrate under s. 216 Cr. P.C.  signed by Durga Bai stating: "The accused have been charged under s. 427 I.P.C.,  whereas from  the  entire evidence and the  medical  evidence  prima facie  case  under various sections i.e. 147,  325  and  336 I.P.C.  is  made  out. Hence it is prayed  that  accused  be charged  in accordance with the evidence and the  charge  be amended in the light of the evidence."     After recording the plea of the accused persons,  prose- cution  led evidence and examined P.W. 1 Shanti Lal, P.W.  2 Sampat  Lal, P.W. 3 Chagan Lal on 12.5.82 and P.W.  4  Durga Bai on 8.7.82.     The learned Magistrate on 8.9.82 after referring to  the aforesaid application submitted by A.P.P. dated 25.2.82  and heating the A.P.P. and the learned advocate for the  accused and  discussing the evidence and observing that if  any  ac- cused  was discharged of any charge under any  section  then there would be no bar for taking fresh cognizance and recon- sideration  against  him according to s. 2 16 Cr.  P.C.  and that 813 the  provision  of s. 319 Cr. P.C. was also  clear  in  that connection, recorded the following order: "Hence  cognizance  for offences under ss.  147,  427,  336, 323,325  I.P.C.  is taken against accused Sohan  Lal,  Padam

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Chand,  Smt. Vijya Bai, Jiya Bai, Vishnu, Hanuman Chand  and Uttam Chand. Orders for framing the charges against  accused Sohan Lal, Padam Chand, Vishnu under the aforesaid  sections are passed and accused Smt. Jiya Bai, Vijya Bai, Uttam Chand and  Hanuman Chand be summoned through bailable-warrants  in the sum of Rs.500 each. File to come on 20.10.82 for framing the  amended charge against the accused  present.  Exemption from  appearance of accused Vishnu Chand and Padam Chand  is canceled  until further order. The advocate for the  accused shall present the said accused in the Court in future."     The  above  order was challenged in  the  aforesaid  two criminal  revision petitions in the High Court of  Rajasthan and  the  same  were dismissed by the  order  under  appeal. According  to  the learned Single Judge  the  question  that arose  for  consideration in those  revision  petitions  was whether a Magistrate was competent to take cognizance of the offence  after recording some evidence against  the  accused persons  who had been earlier discharged of those  offences. It  was urged by the revision petitioners that  having  once discharged them it was not open to the Magistrate to proceed against  them and the only remedy was to go in revision  and the  Magistrate could not review his own order. The  learned Judge  dismissed the petitions taking the view that  it  was not a case of reviewing the order of discharge passed by the Magistrate  but was a case of taking cognizance of  the  of- fence  on the basis of the evidence recorded by  the  Magis- trate  himself which was not in any way prohibited  in  law, and that under the provisions of s. 3 19 Cr. P.C. the Magis- trate was fully competent to take cognizance of the offences on the basis of evidence recorded by him though for the same offences order of discharge was passed by him earlier.     Mr. B.D. Sharma, the learned counsel for the appellants, firstly, submits that the learned Magistrate while  deciding the application dated 25.2.82 submitted by the A.P.P.  under s.  216 Cr. P.C. committed error of jurisdiction in  passing an  order far beyond what was prayed in the application  and could  not  have revised his own order  of  discharging  the appellants. Secondly, s. 319 Cr. P.C. was applicable only to a  person  not being the accused and the  appellants  having been 814 accused  but discharged could not have been charged  as  was done  in  this  case. Counsel submits that  the  High  Court having  failed to notice this fact if this order is  allowed to  stand it will cause grave miscarriage of justice to  the appellants.     The learned counsel for the State supports the  impugned order  submitting that the learned Magistrate  found  enough materials for taking cognizance and framing charges  against the appellants after examining P. Ws. 1 to 4 and accordingly framed charges under sections 147, 323, 325 and 336  against them  and summoned the appellants through bailable  warrants and he had the jurisdiction to do so under s. 3 19 Cr.  P.C. irrespective of the application under s. 216 Cr. P.C.  filed by the A.P.P.     We may now proceed to examine the contentions. From  the application  submitted  by the A.P.P.  dated  25.5.82  there could  be no doubt that what he prayed for was the  charging the  accused  in addition to s. 427 I.P.C.  whereunder  they were already charged, under ss. 147, 323, 325 and 336 I.P.C. of  which they were already discharged. This application  ex facie did not envisage the appellants Vijya Bai and Jiya Bai who were wholly discharged.under all the above sections. Under s. 219 Cr. P.C. the court may alter charge. It says: "2 16. Court may alter charge.

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(1)  Any  court may alter or add to any charge at  any  time before judgment is pronounced. (2)  Every  such alteration or addition shall  be  read  and explained to t. he accused. (3)  If the alteration or addition to a charge is such  that proceeding immediately with the trial is not likely, in  the opinion  of the Court, to prejudice the accused in  his  de- fence  or  the prosecutor in the conduct of  the  case,  the Court  may,  in  its discretion, after  such  alteration  or addition  has  been made, proceed with the trial as  if  the altered or added charge had been the original charge. (4)  If the alteration or addition is such  that  proceeding immediately with the trial is likely, in the opinion of  the court, to prejudice the accused or the prosecutor as 815 aforesaid,  the Court may either direct a new trial  or  ad- journ the trial for such period as may be necessary. (5) xxxxx     Add to any charge means the addition of a new charge. An alteration  of  a charge means changing or variation  of  an existing charge or making of a different charge. Under  this section  addition to and alteration of a charge  or  charges implies  one  or more existing charge or charges.  When  the appellants Vijya Bai and Jiya Bai were discharged of all the charges  and  no charge existed against them,  naturally  an application  under s. 216 Cr. P.C. was not  maintainable  in their  case. In cases of appellants Sohan Lal,  Padam  Chand and  Vishnu against whom the charge under s. 427 I.P.C.  was already  in existence there of course could arise the  ques- tion of addition to or alteration of the charge. The learned Magistrate  therefore  while disposing  of  the  application under  s.  216 Cr. P.C. only had no  jurisdiction  to  frame charges  against the appellants Vijya Bai and Jiya  Bai.  In his  order  the learned Magistrate did not say that  he  has proceeding suo motu against Vijya Bai and Jiya Bai though he said that s. 319 Cr. P.C. was also clear in this connection.     As  regards  the other three appellants,  namely,  Sohan Lal, Padam Chand and Vishnu they were already accused in the case.  Section 2 16 Cr. P.C. envisages the accused  and  the additions  to and alterations of charge may be done  at  any time  before Judgment is pronounced. The learned  Magistrate on  the basis of the evidence on record was  satisfied  that charges  ought  also to be framed under the  other  sections with  which they were charged in the charge sheet. That  was also  the  prayer in the A.P.P.’s application.  However  the learned  Magistrate invoked his jurisdiction under s.  3  19 Cr. P.C. which says: "3  19. 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 816 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--

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(a)  the  proceedings  in respect of such  person  shall  be commenced afresh, and the witnesses reheard; (b)  subject to the provisions of clause (a), the  case  may proceed  at 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  crucial words in the section are, ’any  person  not being  the  accused.’  This section empowers  the  Court  to proceed  against persons not being the accused appearing  to be  guilty of offence. Sub-ss. 1 and 2 of this section  pro- vide  for  a situation when a Court heating a  case  against certain  accused  person finds from the evidence  that  some person  or persons, other than the accused before it  is  or are  also  connected in this very offence or  any  connected offence;  and it empowers the court to proceed against  such person  or persons for the offence which he or they  appears or  appear to have committed and issue process for the  pur- pose.  It provides that the cognizance against  newly  added accused  is deemed to have been taken in the same manner  in which cognizance was first taken of the offence against  the earlier  accused. It naturally deals with a  matter  arising from  the  course of the proceeding already  initiated.  The scope of the section is wide enough to include cases  insti- tuted on private complaint.     There  could be no doubt that the appellants 1, 2 and  3 were  the  accused in the case at the time  of  passing  the impugned order by the Magistrate and as such s. 319 Cr. P.C. would  not cover them. Could appellants 4 and 5  be  brought under that section.? Were they accused in the case? Precise- ly when a person can be called the accused?     Generally  speaking, to accuse means to  allege  whether the person is really guilty of the crime or not.  Accusation according to 817 Black’s  Law  Dictionary  means a formal  charge  against  a person,  to  the effect that he is guilty  of  a  punishable offence  laid before a Court or Magistrate having  jurisdic- tion to inquire into the alleged crime. In this sense  accu- sation may be said to be equivalent of information at common law which is mere allegation of prosecuting officer by  whom it is preferred.     In  the  Code of Criminal  Procedure  1973,  hereinafter called the Code, the expression ’the accused’ has been  used in  a  narrower sense. Chapter XII of the  Code  deals  with information  to the police and their power  to  investigate. Section  154 deals with information in cognizable cases  and section 155 with information as to non-cognizable cases  and investigation of such cases.     Section  167, dealing with procedure when  investigation cannot be completed in 24 hours, says: "(1) Whenever any person is arrested and detained in custody and  it appears that the investigation cannot  be  completed within the period of 24 hours fixed by section 57, and there are grounds for believing that the accusation or information is well rounded, the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of sub-inspector, shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary hereinafter prescribed relating to case, and shall  at the same time forward the accused to such Magistrate. (2)  The Magistrate to whom an accused person  is  forwarded under this section may, whether he has or has not  jurisdic- tion  to  try  the case, from time to  time,  authorise  the detention of the accused in such custody as such  Magistrate thinks  fit, for a term not exceeding ’fifteen days  in  the

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whole;  and  if he has no jurisdiction to try  the  case  or commit it for trial, and considers further detention  unnec- essary, he may order the accused to be forwarded to a Magis- trate having such jurisdiction." (Emphasis ours)     Thus  the  words ’the accused’ have been  used  only  in respect of a case where there are grounds for believing that the accusation or information is well founded. ’Information’ and ’accusation’ are synonymously used. 818     Chapter XV deals with complaints to Magistrate.  SectiOn 200  provides  for examination of complainant.  Section  202 deals  with  postponement of issue of process  and  says  in sub-section  (1) that any Magistrate, on receipt of  a  com- plaint  of an offence which he is authorised to take  cogni- zance or which has been made over to him under section  192, may, if he thinks fit, postpone the issue of process against the  accused,  and either inquire into the case  himself  or direct an investigation to be made by a police officer or by such  other  person  as he thinks fit, for  the  purpose  of deciding whether or not there sufficient ground for proceed- ing. Thus we find that the expression "the accused" has been used in relation to a complaint case under this section even before  issue of process. It also appears that in  the  Code the  expression  "the accused" is used after  cognizance  is taken by the Magistrate.     Chapter  XVI  of  the Code deals  with  commencement  of proceedings  before  Magistrates. Section 204  dealing  with issue  of process uses the expression "the  accused".  Under sub-section  (1) thereof 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  summon- scase, he shall issue his summons for the attendance of  the accused, 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  Magis- trate  or  (if he has no jurisdiction  himself)  some  other Magistrate  having jurisdiction. Under sub-section  (2),  no summons or warrant shall be issued against the accused under sub-section  (1) until a list of the  prosecution  witnesses has been filed. Thereafter the expression ’the accused’  has been used in subsequent sections. Thus one is referred to as ’the accused’ even before issue of process.     Section  273  provides  for  evidence  to  be  taken  in presence  of  the accused in the course of  trial  or  other proceedings.  The  explanation  to  the  section  says  that "accused" includes a person in relation to whom any proceed- ing  under Chapter VIII (Security for keeping the peace  and Good Behavior) has been commenced under this Code.     In  Chandra Deo Singh  v. Prokash Chandra Bose  &  Anr., [1964] 1 SCR 639, during the pendency of the first complaint on  which the Magistrate directed an inquiry, the nephew  of the deceased filed a complaint alleging that the  respondent No.  1 had committed the murder. The  Sub-Divisional  Magis- trate  directed the First Class Magistrate to  inquire  into that complaint and also to report. During the 819 inquiry, apart from the witness produced by the  complainant respondent No. 1 was allowed to be represented by a  counsel and two persons who had been named in the First  Information Report  alongwith respondent No. 1 were examined with  court witnesses.  The First Class Magistrate after conducting  the inquiry  under  section  203 Cr. P.C., 1898  made  a  report stating  that a prima facie case had been made  out  against the persons mentioned in the first complaint. He made anoth-

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er  report  on the second complaint stating  that  no  prima facie case has been made against respondent No. 1. The  Sub- Divisional  Magistrate directed the initiation of  committal proceedings  against  the  persons mentioned  in  the  first complaint. On a revision application filed by the  complain- ant of the second complaint the Sessions Judge directed  the Sub-Divisional Magistrate to conduct further inquiry against respondent No. 1 who took the matter in revision to the High Court.  The  Revision Applications by respondent No.  1  and three  others were allowed wherefrom there was an appeal  to this  Court  by  certificate. The main  contentions  of  the appellant  before this Court were that the respondent No.  1 had  no locus standi to appear and contest a  criminal  case before the issue of process. This Court held: "It seems to us clear from the entire scheme of Chapter  XVI of  the  Code of Criminal Procedure (1898) that  an  accused person does not come into the picture at all till process is issued.  This does not mean that he is precluded from  being present  when  an enquiry is held by a  Magistrate.  He  may remain  present  either in person or through  a  counsel  or agent  with a view to be informed of what is going  on.  But since  the very question for consideration being whether  he should be called upon to face an accusation, he has no right to  take part in the proceedings nor had the Magistrate  any jurisdiction to permit him to do so."     Joginder  Singh  &  Anr. v. State of  Punjab  and  Anr., reported in 1979 (2) SCR 306 is an authority for the  propo- sition  that  the expression "any person not being  the  ac- cused"  clearly  covers any person who is  not  being  tried already  by the Court. A criminal complaint  was  registered against  5  persons including the 2 appellants.  The  police having  found that the two appellants were innocent  charge- sheeted  the remaining 3 persons and they were committed  to trial.  At the trial evidence having shown  the  appellants’ involvement  in the crime the prosecution moved an  applica- tion that they be tried along with the three accused and the Sessions  Judge directed the appellants to stand  trial  to- gether with other accused. Their revision application in the 820 High  Court was dismissed. In their appeal in this Court  it was  inter  alia submitted that Section 3 19  Cr.  P.C.  was inapplicable  to the facts of this case because  the  phrase "any person not being the accused" occurring in the  section excluded from its operation an accused who had been released by  the police. This Court rejected the  contention  holding that  the said expression clearly covered by person who  has not been tried already by the Court and the very purpose  of enacting  such a provision like section 3 19 clearly  showed that even a person who had been dropped by the police during investigation but against him evidence showing his  involve- ment  in  the offence came before the  criminal  court  were included in the said expression.     In Municipal Corporation of Delhi v. Ram Kishan  Rohtagi & Ors., [ 1983] 1 SCR 884, under the Food Adulteration  Act, the  respondent  No. 1 was Manager of the  company  and  the respondent  No.  2 to 5 were the directors  of  the  company including  the company. The High Court quashed the  proceed- ings against the directors as also against the manager. This court  set  aside a part of the Judgment of the  High  Court which quashed the proceedings against the manager respondent No. 1. It was held that where the allegations set out in the complaint did not constitute any offence and the High  Court quashed the order passed by the Magistrate taking cognizance of the offence there would be no bar to the Court’s  discre- tion  under section 3 19 Cr. P.C. if it was made out on  the

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additional evidence laid before it. Section 3 19 gives ample powers  to any Court to take cognizance against  any  person not  being an accused before it and try him along  with  the other accused. This Court clearly observed: "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 the 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 821 quashed against respondent Nos. 2 to 5 will not present  the court  from exercising its discretion if it is fully  satis- fied that a case for taking cognizance against them has been made out on the additional evidence led before it."     It was pointed out that under the Cr.P.C. 1973 the Court can  take cognizance against persons who have not been  made accused  and  try them in the same manner along  with  other accused. In the old Code, Section 35 1 contained a lacuna in the  mode  of taking cognizance if a new person  was  to  be added  as an accused. The Law Commission in its 41st  Report (para 24.81) adverted to this aspect of the law and  section 3 19 of the present Code gave full effect to the recommenda- tion of the Law Commission by removing the lacuna which  was found to exist in section 35 1 of the old Code.     In  Dr.  S.S. Khanna v. Chief Secretary, Patna  &  Ors., reported in 1983 2 SCR 724 this Court had to consider wheth- er  a person against whom a complaint was filed  along  with some other persons and who after an enquiry under s. 202  of the  Code was not proceeded against by the Court,  could  be summoned  at a later stage under s. 3 19 of the latter  Code to  stand trial for the same or a connected offence  or  of- fences along with the other persons against whom process had been  issued earlier by the Court. It was held  that  having regard to the nature of the proceedings under s. 202 of  the Cr.  P.C. it may be difficult to hold that there is a  legal bar  based  on the principle of issue  estoppel  to  proceed under  s.  3 19 against a person complained against  on  the same material, if the Court has dismissed a complaint  under s.  203. But the Court did not express any final opinion  on the question. In that case, however, the Magistrate  decided to  take  action under s. 3 19 of the Code on the  basis  of fresh evidence which was brought on record in the course  of proceedings  that took place after the enquiry  contemplated under s. 202 of the Code was over. It was further held  that even  when  an order of the Magistrate  declining  to  issue process  under  s. 202 was confirmed by a higher  Court  the jurisdiction of the Magistrate under s. 3 19 remained  unaf- fected, if other conditions were satisfied and the autre low principle adumbrated in s. 300 of the Code could not, howev- er, apply to such a case.     In  the instant case, Vijya Bai and Jiya Bai  were  dis- charged  by the Magistrate of all the charges and the  three other appellants were discharged of the sections other  than section  427 I.P.C. After the police submitted charge  sheet against  them the order of discharge, according to Mr.  B.D.

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Sharma, could not be taken to be one under 822 s. 203 but under s. 245 which is included in Chapter XIX and deals  with trial of warrant cases by the Magistrates.  This submission has not been refuted. That section says: "245. When accused shall be discharged.--(1) If, upon taking all  the  evidence  referred to in s.  244,  the  Magistrate considers, for reasons to be recorded, that no case  against the  accused has been made out which, if  unrebutted,  would warrant his conviction, the Magistrate shall discharge him. (2)  Nothing  in this section shall be deemed to  prevent  a Magistrate  from  discharging the accused  at  any  previous stage  of  the case if, for reasons to be recorded  by  such Magistrate, he considers the charge to be groundless."     If that was so, the question is what would be the effect of  the order of discharge? Should the protection  resulting from such an order of discharge be allowed to be taken  away by  allowing the same Magistrate to take cognizance  of  the offence  or  offences against them at a later stage  of  the trial, without further enquiry where the order of  discharge was  not  challenged or even if the order of  discharge  was taken in revision and the same was affirmed by the revision- al  court? Section 397 empowers the High Court or  any  Ses- sions  Judge to call for examining the records or  any  pro- ceedings  before  any  inferior criminal  court  within  its jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence  or  order,  recorded or passed  etc.  Section  398 empowers  the  High  Court or the Sessions  Judge  to  order inquiry. It says: "On examining any record under s. 397 or otherwise, the High Court  or the Sessions Judge may direct the  Chief  Judicial Magistrate by himself or by any of the Magistrates  subordi- nate  to him to make, and the Chief Judicial Magistrate  may himself  make or direct any subordinate Magistrate to  make, further inquiry into any complaint which has been  dismissed under s. 203 or sub-section (4) of s. 204, or into the  case of any person accused of an offence who has been discharged.          Provided  that  no Court shall make  any  direction under  this section for inquiry into the case of any  person who has been discharged unless such person has had an oppor- tunity  of  showing cause why such direction should  not  be made." 823 Thus  this provision empowers, the Courts to direct  further inquiry into any complaint which has been dismissed under s. 203  or  sub-section  (4) of s. 204 or in the  case  of  any person accused of the offence who has been discharged and no such  order  shall  be made unless such person  has  had  an opportunity  of showing cause why such direction should  not be made.     The  question  therefore  is whether  the  necessity  of making  a  further inquiry as envisaged in s. 398  could  be obviated or circumvented by taking resort to s. 319. As  has already  been held by this Court, there is need for  caution in resorting to s. 3 19. Once a person was an accused in the case  he  would be out of reach of this  section.  The  word "discharge" in s. 398 means discharge of an offence relating to the charge within the meaning of ss. 227,239,245 and 249. Refusing  to proceed further after issue of process is  dis- charge.  The  discharge has to be in  substance  and  effect though there is no formal order. The language of the section does not indicate that the word "discharge" should be  given a  restricted  meaning in the sense  of  absolute  discharge where the accused is set at liberty after examination of the

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whole case. The cases of appellants 4 and 5 would be one  of total discharge. But it could not be said that they were not some of the accused in the case, or that cognizance was  not taken  of the offences against them. A personmay be  accused of  several  offences and he may be discharged of  some  of- fences  and proceeded against for trial in respect of  other offences. This was the position regarding appellants 1, 2  & 3, who were partially discharged.     The  High Court did not subscribe to the view  taken  in State  v.  Gangaram Kalite reported in AIR  1965  Assam  and Nagaland 9. Therein a chargesheet having been filed  against 9 accused persons in his Court the Sub-Divisional Magistrate called  for  report from the police and on  receipt  of  the final report ordered the discharge of the accused persons on 26.6.1961.  Subsequently  on 22.8.1961,  without  any  fresh chargesheet or a complaint, Sub-Divisional Magistrate decid- ed to proceed afresh against the accused persons and ordered summons  to be issued to them, fixing a later date for  evi- dence. On a reference by the Additional District Magistrate, calling  into  question the procedure followed by  the  Sub- Divisional  Magistrate a single bench of the High  Court  of Assam and Nagaland on the basis of Section 241-A of the  old Code  of the Criminal Procedure held that assuming that  the discharge  order  had been validly  passed,  the  Magistrate became functus officio so far as the case was concerned  and unless there was a fresh complaint or a fresh chargesheet no action in the matter could have been taken by the  Sub-Divi- sional Magistrate. It was observed that as the order 824 passed was an order of discharge and not one of acquittal, a fresh complaint could under law have been entertained by the Magistrate  and  in the absence of any such  complaint,  any attempt  to go back on the order of discharge passed by  him and  to  revive the case, as if the case had not  been  dis- charged, would amount in law to a review of the Judgment  of the  Magistrate which was not permissible having  regard  to section  369 of the Code of Criminal Procedure. Section  369 provided  that  no Court when it had  signed  its  Judgment, shall  alter or review the same, except to correct  clerical errors.     The High Court in the instant case followed the decision in  Saraswatiben v. Thakurlal Hitnatlal & Anr., reported  in AIR  1967 Gujarat 263, holding that if at one stage  on  the evidence  before him the Magistrate found that there was  no prima  facie case against the accused, subsequently  on  en- quiry as a result of further evidence if he felt that  there was  prima facie case against the accused whom he  had  dis- charged under section 251-A (2) Cr. P.C., it was open to him to  frame a charge against the accused and that it  was  not necessary  to take cognizance again and the  Magistrate  did not  become  functus  officio. The same view  was  taken  in Amarjit  Singh  @ Amba v. The State of Punjab,  reported  in Punjab Law Reporter Vol. 85 (1983) p. 324.     The  above views have to yield to what is laid  down  by this  Court in the decisions above referred to.  The  provi- sions of s. 319 had to be read in consonance with the provi- sions of s. 398 of the Code. Once a person is found to  have been the accused in the case he goes out of the reach of  s. 3  19. Whether he can be dealt with under any  other  provi- sions  of the Code is a different question. In the  case  of the  accused  who  has been discharged  under  the  relevant provisions of the Code, the nature of finality to such order and  the  resultant  protection of  the  persons  discharged subject to revision under s. 398 of the Code may not be lost sight of. This should be so because the complainant’s desire

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for  vengeance has to be tempered with though it may be,  as Sir  James  Stephen says; "The Criminal law  stands  to  the passion of revenge in much the same relation as marriage  to the  sexual appetite." (General view of the Criminal Law  of England, p. 99). The A.P.P. ’s application under s. 2 16, in so  far  as the appellants 1 to 3 were  concerned  could  be dealt  with under s. 2 16. Appellants 4 & 5 could  be  dealt with  neither under s. 2 16 nor under s. 3 19. In that  view of  the matter the impugned order of the Magistrate as  well as that of the High Court in so far as the appellants 4 & 5, namely, Vijya Bai and Jiya Bai are concerned, have to be set aside  which we hereby do. The appeals are allowed  to  that extent. G.N.                                Appeals allowed. 825