Holding

A dismissal under Section 202 does not bar a later summons under Section 319 when fresh evidence justifies it, but the Court may decline to proceed in the interest of justice and public policy.

Summary

The General Secretary of an employees' association filed a complaint against a security officer and the institute's Director, alleging offences under the IPC. The Chief Judicial Magistrate, after a Section 202 inquiry, found no prima facie case against the Director and declined to issue process, while proceeding against the security officer. During the trial of the security officer, fresh evidence emerged that the Director had threatened the complainant with a revolver, leading the magistrate to summon the Director under Section 319. The Director challenged this summons, arguing that the earlier dismissal barred further proceedings and invoking issue estoppel and Article 20(2). The Supreme Court held that a Section 202 dismissal does not preclude a later Section 319 summons when new evidence is presented, and the principle of issue estoppel does not apply. However, considering the settlement of the industrial dispute and the interest of industrial peace, the Court set aside the High Court's order and dismissed the application under Section 319, allowing the appeal.

Issues considered

Whether a person against whom a complaint is dismissed after a Section 202 inquiry can later be summoned under Section 319 for the same or connected offence.
Whether the principle of issue estoppel or the autrefois acquit doctrine bars such a subsequent proceeding.
Whether Article 20(2) of the Constitution is violated by summoning the person after a prior dismissal.

Legislation cited

Code of Criminal Procedure, 1973s. 202, s. 203, s. 300, s. 319

Subjects

Section 202Section 319issue estoppelautrefois acquitCriminal Procedure Codesummonscomplaint dismissalArticle 20(2)industrial dispute

Judgment

DR. S.S. KHANNA
A
v.
CHIEF SECRETARY, PATNA & OTHERS

April 12, 1983
B
(E.S. VENKATARAM!AH AND AMARENDRA NATH SEN, JJ]

Code of Criminal Procedure, 1973 (Act JI 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
c Code is not proceeded against by the Court can be summ1ned 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 proocess had be~n issued
earlier by the C:Jurt--Principles of Issue estoppel an.I Autre [vis, applicability of-
.Article 20 (2) of the ConStilution of India, 1950.

The General Secretary of the Employees Association of the National
D I1istitute· of Foundry and Forge Technology, Ranchi filed a complaint before
the Chief Judicial Magistrate, Ranchi to take action _against Banktesh Prasad.
the S~curity Officer of the Institute ar.d 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
E 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 dismi~sed by the Judicial Commissioner, l\.anchi. However, in the·
course LOf further proceedings against Banktesh Prasad, the First ClassJ udicial
Magistrate, Ranchi to whose Court the proceedings were transferred allowed
F 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 5tand trial along with Banktesh Prasad.
The appellant questioned the order of the ~Aagistrate before the Patna High
Court at Ranchi in a Revision Petition. That Petition was dismissed.
G Hence the appeal by Special Leave.

Allowing the appeal, the Court

HELD : I : I Having regard to the nature of the proceedings under
H 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 p~rso:i. co.n;>lain~d ag1ios t on the same material, if the
Court bas dismissed a complaint under Section 203. But it is not necessary
s.s. KHANNA v. CHIEF SECRETARY (Vankataramiah, J.) 72~

to express any final opinion on that qustion since, in the.instant case, it is seen
that the magistrate decided to take action under section 319 of the Code on the A
basis of fresh evidence which was brought on record- in the course of proceed-
ings that took place after the inquiry contemplated under Section 202 of the
Code was over and }n the course of the trial against Banktesh Prasad.
(730 G-H, 731 A-BJ

1: 2 Even wt.en an order of the magistrate declining to hsue process
under Section 202 is confirmed by a higher court, the jurisdiction of the B:
magi.strtlte under Section 319 remaios unaffected, if other conditions are
satisfied.[731-BJ

I : 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 Secti.on 319 of the Code, as it C
appears from the evidence led at the trial that there was a strong case made
out against the ai;pellant 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] J. S.C.C,
I followed. D
2 : l The object of the inquiry under Section 202 of the Code is the
ascertainment of the fact whether the complaint has any valid foundation
cal1ing 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 p~rson E
against whom the complaint is preferred. [728 H, 729 A-BJ

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 re -pect of any· offence and
that a trial can ommence 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 :}n F
ai::cused until-it is decided to issue process against him. Even if he partici·
pates 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 Poncha/ v. Dattatraya Dulaji Ghadigaonker ana Anr., (1961]
I S.C.R. I; Chandra Deo Singh v. Prakash Chandra Bose and Anr., [1964] I
S.C.R. 639, referred to. G
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 481
of 1980.
Appeal by Special Leave from the Judgment and Order dated H
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 SUPREME COURTS REPORTS [1983] 2 S.C.R.

D. Goburdhan for the Respondent.
A
D.P. Mukherjee for Complainant.

The Judgment of the Court was delivered by

B VENKATARAMIAH, J. The question for consideration in this case
a
is whether 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 l974) (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
c 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
D 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 h;rein
before the Chief Judicial Magistrate, Ranchi, to take action against
the appellant and one Banktesh Prasad alleging that Banktesh Prasad
E 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 Secu-
rity Officer ·of the National Institute of Foundry and Forge Techno-
logy, The appellant was its Director. The complainant was. the
F 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 prirna facie case
G 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.
H The complainant filed a revision petition before the Judicial Commis-
sioner, 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,
S.S. KHANNA v. CB11ll' SECRETARY (Venkatarmiah, J.) 727

The proceedings against Banktesh Prasad were continued before
the iudicial Magistrate, 1st Class, Ranchi, as directed by the Chief A
Judicial Magistrate. In the course 'of those pr6ceedings, 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 B
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
J
committed offences punishable under sections 323; 109 and 506 IP.C. 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 op the revision petition.
D
Section 319 of the Code reads :

"319. Power to procet;d against other persons
appearing to be guilty of offence-(!) Where, in the
course of any inquiry into, or trial of, an offence, it
E
,,,
) 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.
F
(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 G
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-sec.lion (I) then-:- H
(a) the proceedings in respect of such person shall be
commenced afresh, and the witnesses re-heard ;
728 · SUPREME COURT REPORTS {1983] 2 s.c.R.

(b) subject to the provisions of clause (a), the case may
A 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
B 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
c 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
D 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
E empower the criminal court to take action against such person also,
Parliament on the recommendation of the Law Commission in its
4Jst Report introduced section 319 in the present code as set out
above.

F The point to be decided in this case is. whether when a magis-
trate 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
'
G
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 '.
H issue process against him. Even if he participates in the proceedings y

under ·section 202 of the Code, he does so not as an accused but as
a mem\Jer of the rublic. The object of the inquiry under sectiol) 20Z
S.S. KHANNA v. CHIEF SECRETARY (Venkataramiah, J.) 729

is the ascertainment of the fact whether the complaint has any valid
foundation calling for the issue of process to the person complained A
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 &ection 202 of the Code. The B
nature of these proceedings is fully discussed by thls Court in two
cases Vadila/ Panchal v. Dattatraya Du/aji Ghadigaonker & Anr.(1)
and Chandra Deo Singh v. Prakash Chandra Bose & Anr.(') in which
section 202 of the former Code of Criminal Procedure arose for
consideration. The present section . 202 being a substantantial
reproduction of the former section 202, the observations made by C
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
D
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 E
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 F
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 41 st Report of the Law Commis- G
sion 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" .. H
(1) [1961] 1 S.C.R. I.
(2) {1964] I S.C.R,. (j_39.,
730 SUPREME COURT REPORTS (1983] 2 S.C.R,

We consider this inappropriate, as the truth or falsehood
A 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
B of section 202 should correspond to the language of
section 203, and we have accordingly made snitable
verbal alterations."

The effect of dismissal of a complaint under section 203 of the
c old Code has been dealt with by this Court in Pramatha Nath Taluqdar
v. Saroj Ranjan Sarkar(1). Kapur, J. who wrote tbe majority judgment
observed at page 354 thus :

"An order of dismissal under s. 203, Crimiual
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
E been brought on the record in the previous proceedings
have been adduced."
'
As rightly commented by the Law Commission the circum-
stances mentioned by the Court in the above passage cannot be ._.
F exhaustive of all the circumstances when a second complaint can be in
otherwise in entertained.· A second comlaint may be entertained
appropriate cases too, though it should be for extraordinary
reasons.

Having regard to the nature of the proceedings under
G 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
• I>-
a person complained against on the same material if the Court h.as
dismissed a complaint under section 203. But it is not n,ecessary
to express any final opinion on that question since in the instant
•
H case, it is seen that the magistrate decided to take action under
section 319 of the Code on the basis of fresh evideµce whkh was

{J) 1962j Supp. 2 S.C.R. 291,
. s.s. :KHANNA y. CHIEF SECRETARY. (Venkataramiah, J.) 731

brought on record in the course of the proceedings that took place
after the inquiry contemplated under section 202 of the Code was A
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 B
under section 202 is confirmed by a higher court, the jurisdiction of
the magistrate under section 319 remains unaffected if other condi-
tions are satisfied. In Municipal Corporation of Delhi v. Ram Kishan
Rohtagi & Ors(') 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
Foo.d Inspector filed a complaint before a magistrate requesting him C
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. j)
The High Court quashed the proceedings against al) 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 E
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 pro-
ceed against them. But it was, however, made clear that if the
prosecution was able to produce evidence against any of those direc- . F
tors 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 per~on not being an accused G
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)
H

(!) \1983j 1 s.c.c. ,,
732 SUPREME COURT REPORTS [1983] 2 s.c.R.

A plain reading of Section 319(1) which occurs in
A Chapter XXIV dealing with general provisions as to in-
quiries 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 theye 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
c 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
D
and should be used very sparingly and only if compelling
reasons exist for taking cognizance against the other per-
son 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
E 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
F 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
G 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
H 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 responde11t. The.
S.S. KHANNA v. CHIBF SECRETARY (Venkataramiah, J.) 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 B
all back wages. No other workman has been discharged or punished
for participating in the incid_ent. On November 4, 1981, a settelment
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 C
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 D
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. E
S.R._ Appeal allowed.
I