Dr. S.S. Khanna Vs. Chief Secretary, Patna & Ors [1983] 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

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

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.

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.

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 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 202 729 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 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 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 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.

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