Dr. S.S. Khanna Vs. Chief Secretary,
Patna & Ors  INSC 39 (12 April 1983)
VENKATARAMIAH, E.S. (J) VENKATARAMIAH, E.S.
(J) SEN, AMARENDRA NATH (J)
CITATION: 1983 SCR (2) 724 1983 SCC (3) 42
1983 SCALE (1)376
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.
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
Hence the appeal by Special Leave.
Allowing the appeal, the Court
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  Suppl. 2 SCR 297; Municipal
Corporation of Delhi v. Ram Kishan Rohatgi and ors.  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.,  1
S.C.R. 1; Chandra Deo Singh v. Prokash Chandra Bose and Anr.,  1 S.C.R.
639, referred to.
CRIMINAL APPELLATE JURISDICTION: Criminal
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
726 D. Goburdhan for the Respondent.
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 along with 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 along with 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 along with 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 along with 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.
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
(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 202 729 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
"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
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 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
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 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
In the instant case, the complaint was filed
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 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.