Holding

A magistrate cannot frame additional charges under s. 216 CrPC or invoke s. 319 CrPC against persons who have been discharged of all charges; such persons are beyond the scope of ‘any person not being the accused.’

Summary

An FIR was lodged alleging that the appellants stone‑pelleted an informant’s house, causing damage and injuring three women. The Judicial Magistrate discharged two appellants (Vijya Bai and Jiya Bai) of all charges and limited the remaining three appellants (Sohan Lal, Padam Chand and Vishnu) to a charge under s. 427 IPC. The Assistant Public Prosecutor later filed an application under s. 216 CrPC to add charges of s. 147, 323, 325 and 336 IPC. The magistrate, relying on s. 319 CrPC, took fresh cognizance against all six accused, including the two previously discharged, and ordered framing of the additional charges. The Rajasthan High Court dismissed revision petitions, holding that the magistrate could take fresh cognizance under s. 319 and that s. 216 was applicable. On appeal, the Supreme Court held that once a person is discharged of all charges, an application under s. 216 is not maintainable and s. 319, which applies only to “any person not being the accused,” cannot be used to revive prosecution against them. Consequently, the magistrate had no jurisdiction to frame new charges against the two discharged appellants, and the High Court’s order as to them was set aside, while the application of s. 216 to the remaining three appellants was upheld.

Issues considered

Whether a magistrate can amend charges under s. 216 CrPC against persons who have been discharged of all charges.
Whether s. 319 CrPC, which permits proceeding against ‘any person not being the accused’, applies to persons previously discharged.
Whether taking fresh cognizance after a discharge violates the principle of functus officio and the finality of discharge orders.
Interpretation of ‘any person not being the accused’ in s. 319 CrPC in relation to previously discharged accused.

Legislation cited

Code of Criminal Procedure, 1973s. 216, s. 219, s. 245, s. 251-A, s. 319, s. 369, s. 398

Subjects

Criminal Procedure CodeSection 216Section 319Discharge of accusedFresh cognizanceFunctus officioRevisionAmendment of charges

Judgment

SOHAN LAL AND ORS. A
v.

STATE OF RAJASTHAN

AUGUST 21, 1990
B
[K.N. SAIKIA AND K. RAMASWAMY, JJ.]

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

One •s• lodged a First Information Report alleging that the appel-
c
lants and two others were pelting stones at the house of informant,
thereby causing damage to it and injuring three women who were sit-
ting at the chowk of the house. Aller completing investigation the police
- - - framed charges under sections 147, 323, 325, 335 and 427 IPC and
forwarded the charge sheet to the Judicial Magistrate nnder section 173 D
Cr.P.C. Taking cognizance and after hearing the arguments, the Judi-
cial Magistrate discharged appellants 4 and 5 of all the charges and
ordered that appellants l, 2 and 3 be charged only under section 427
IPC.

Later, the Assistant Public Prosecutor submitted an application to E
the Magistrate under Section 216 Cr. P.C. signed by Me of the Prosecu-
tion Witnesses, for amending the charge claiming that a prima facie
case under sections 147, 325 and 336 IPC was made out. Aller hearing
the parties, the Magistrate allowed the said application. This order was
challenged before the High Court by way of Revision Petitions. The
Petitions were dismissed by the High Court, holding that it was not a F
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 Magistrate 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 G
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 Magistrate H

809
810 SUPREME COURT REPORTS [1990] 3 S.C.R.

A committed error of jurisdiction in passing the subsequent order and (
that be could not have revised his own order 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.

B 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 jurisdiction to do so under
section 3I9 Cr. P.C. irrespective of the application under s. 216 -·
Cr. P.C. filed by the Assistant Public Prosecutor.

Allowing the appeals,
c
HELD: I. I. Under Section 2I6 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
D more existing charge or charges. When the appellants 4 and 5 were
discharged of all the charges and no charge existed against them, natur-
ally an application under s. 2I6 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 jurisdiction to frame charges against the
appellants 4 and 5. In his order the Magistrate did not say that he was
E proceeding suo motu against them though he said thats. 3I9 Cr. P.C.
was also clear in this connection. [iI5B-D I

I.2. As regards appellants I, 2 and 3, they were already accused
in the case. Section 2I6 Cr. P.C. envisages the accused and the addi-
tions to and alterations of charge may be done at any time before
F judgment is pronounced. The 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 Assistant Public Prosecutor's appli-
cation. However, the Magistrate invoked his jurisdiction under s. 3I9
Cr. P.C. [8I5E-F]
G
2. The provisions of s. 3I9 had to be read in consonance with the
provisions ofs. 398 of the Code. Once a person is found to have been the
accused in the case he goes out of the reach ofs. 3I9. Whether he can be ~-
dealt with under any other provisions of the Code is a different ques-
tion. In the case of the accused who has been discharged under the
H relevant provisions of the Code, the nature of finality to such order
SOHAN LAL v. STATE OF RAJASTHAN [SAIKIA, J.[ 811

and the resultant protection of the persons discharged subject to
A
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. Prakash Chandra Bose & Anr., [1964] l
SCR 639; Joginder Singh & Anr. v. State of Punjab and Anr., [1979] 2 B
SCR 306; Municipal Corporation of Delhi v. Ram Kishan Rohtagi &
Ors., [1983] l 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 9;
approved.
c
Saraswatiben v. Thakur/al Himmatlal & Anr., AIR 1967 Gujarat
263; Amarjit Singh@ Amba v. The State of Punjab, Punjab Law Repor-
ter Vols. 85 (1983) p. 324, disapproved.

General view of the Criminal Law of England by James Stephen, D
p. 99 referred to.

3. The Assistant Public Prosecutor's application under s. 216, in
so far as the appellants l 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 E
the High Court in so far as the appellants 4 and 5 are concerned, are
set aside. [824G-H]

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
Nos. 452-53 of 1990.
F
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. G

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 H
812 SUPREME COURT REPORTS [1990] 3 S.C.R.

the High Court of Rajasthan dated 23.3.1989 in S.B. Criminal Revi-
A
sion 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
B 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 causing 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
c 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
D 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 applica-

E
tion 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
F 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, prosecution 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.
G
The learned Magistrate on 8.9.82 after referring to the aforesaid
application submitted by A.P.P. dated 25.2.82 and hearing the A.P.P.
and the learned advocate for the accused and discussing the evidence ~
and observing that if any accused was discharged of any charge under
any section then there would be no bar fqr taking fresh· cognizance
H and reconsideration against him according to s. 216 Cr. P.C. and that
SOHAN LAL v. STATE OF RAJASTHAN (SAIKIA, J.] 813

the provision of s. 319 Cr. P.C. was also clear in that connection,
A
_>•• recorded the following order:

"Hence cognizance for offences under ss. 147, 427, 336,
323, 325 l.P.C. is taken against accused Sohan Lal, Padam
Chand, Smt. Vijya Bai, Jiya Bai, Vishnu, Hanuman Chand
and Uttam Chand. Orders for framing the charges against B
accused Sohan Lal, Padam Chand, Vishnu under the

r-- aforesaid sections are passed and accused Smt. Jiya Bai,
Vijya Bai, Uttam Chand and Hanuman Chand be sum-
moned 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 c
cancelled 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 D
dismissed by the order under appeal. According to the learned Single
Judge the question that arose for consideration in those revision peti-
tions 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 dis.charged them it was not open E
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 offence on the basis of the
evidence recorded by the Magistrate himself which was not in any way F
i prohibited in law, and that under the provisions of s. 319 Cr. P.C. the
Magistrate 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, G
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. commit-
ted 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 H
814 SUPREME COURT REPORTS (1990] 3 S.C.R.

A 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
B 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.
319 Cr. P.C. irrespective of the application under s. 216 Cr. P.C. filed
bytheA.P.P.
c
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,
D 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:

E "216. Court may alter charge.

(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
F explained to the 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
defence or the prosecutor in the conduct of the case, the
G Court may, in its discretion, after such alteration or addi-
tion 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
H court, to prejudice the accused or the prosecutor as
SOHAN LAL v. STATE OF RAJASTHAN [SAIKIA, J.] 815

aforesaid, the Court may either direct a new trial or
A
adjourn 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 B
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 LP .C. was already in existence
c
there of course could arise the question 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 D
Vijya Bai and Jiya Bai though he said thats. 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__ th<!. case.
Section 216 Cr. P .C. envisages the. accused and the additions to and E
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. 319 Cr. P .C. which says: F

"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 G
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 H
816 SUPREME COURT REPORTS [1990] 3 S.C.R.

be arrested ~r summoned, as the circumstances of the case
A
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
B 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 com-
menced afresh, and the witnesses reheard;
c
(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."
-
D
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 provide for a situation when a Court hearing a case
against certain accused person finds from the evidence that some
•
E 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 purpose. It provides that the cognizance against
newly added accused is deemed to have been taken in the same ~
F 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 instituted on private complaint.
'
There could be no doubt that the appellants 1, 2 and 3 were the
G 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? Precisely when a person can be called the accused?
~
Generally speaking, to accuse means to allege whether the
H person is really guilty of the crime or not. Accusation according to
SOHAN LAL v. STATE OF RAJASTHAN [SAIKIA, J.] 817

Black's Law Dictionary means a formal charge against a person, to the A
effect that he is guilty of a punishable offence laid before a Court or
_>, Magistrate having jurisdiction to inquire into the alleged crime. In this
sense accusation may be said to be equivalent of information at com-
mon law which is mere allegation of prosecuting officer by whom it is
preferred.
B
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~cogni.Zable cases
and investigation of such cases.
c
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 D
completed within the period of 24 hours fixed by section
57, and there are grounds for believing that the accusation
or information is well founded, 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 E
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 for-
warded under this section may, whether he has or has not F
jurisdiction 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
whole; and if he has no jurisdiction to try the case.or com-
mit it for trial, and considers further detention unneces-
sary, he may order the accused to be forwarded to a Magis- G
!rate having such jurisdiction."
(Emphasis ours)

..I. Thus the words 'the accused' have been used only in respect of a
case where there are grounds for believing that the accusation or infor-
mation is well founded. 'Information' and 'accusation' are synoni- H
mously used.
818 SUPREME COURT REPORTS [1990] 3 S.C.R.

Chapter XV deals with complaints to Magistrate. Section 200
A
provides for examination of complainant. Section 202 deals with post-
ponement of issue of process and says in sub-section (1) that any ...._
Magistrate, on receipt of a complaint of an offence which he is
authorised to take cognizance or which has been made over to him
under section 192, may, if he thinks fit, postpone the issue of process
B 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 is
sufficient ground for proceeding. 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
C the expression "the accused" is used after cognizance is taken by the
Magistrate.

Chapter XVI of the Code deals with commencement of proceed-
ings before Magistrates. Section 204 dealing with issue of process uses
the expression "the accused". Under sub-section ( 1) thereof if in the
D opinion of a Magistrate taking cognizance of an offence there is suffi-
cient ground for proceeding and the case appears to be-(a) a summons-
case, 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 Magistrate or {if he has no jurisdiction him-
E self) 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.
F
Section 273 provides for evidence to be taken in presence of the
accused in the course of trial or other proceedings. The explanation to J
the section says that "accused" includes a person in relation to whom
any proceeding under Chapter VIII (Security for keeping the peace
and Good Behaviour) has been commenced under this Code.
G
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 Magistrate directed the First Class Magis-
H !rate to inquire into that complaint and also to report. During the
(

SOHAN LAL v. STATE OF RAJASTHAN [SAIK.IA, J.] 819

inquiry, apart from the witness produced by the complainant respon- A
, dent 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 another B
report on the second complaint stating that no prima facie case has
been made against respondent No. 1. The Sub-Divisional Magistrate
"y:. directed the initiation of committal proceedings against the persons
· mentioned in the first complaint. On a revision application fI1ed by the
complainant of the second complaint the Sessions Judge directed the
Sub-Divisional Magistrate to conduct further inquiry. against respon- C
dent 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: D

"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 Magis- E
!rate. 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." F

Joginder Singh & Anr. v. State of Punjab and Anr., reported in
1979 (2) SCR 306 is an authority for the proposition that the expres-
sion "any person not being the accused" 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 G
having found that the two appellants were innocent chargesheeted 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 application that they be tried along with the
three accused and the Sessions Judge directed the appellants to stand
trial together with other accused. Their revision application in the H
820 SUPREME COURT REPbRTS [1990] 3 S.C.R.

High Court was dismissed. In their appeal in this Court it was inter alia
A submitted that Section 319 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
reieased 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 319 clearly showed that even a person who had been drop-
ped by the police during investigation but against him evidence shOw- •../
ing his involvement in the offence came before the criminal court were \ --
included in the said expression.

Municipal Corporation of Delhi v. Ram Kishan Rohtagi &
c Ors., In[1983] 1SCR884, under the Food Adulteration Act, the respon-
dent 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 proceedings against the directors as also against the
manager. This court set aside a part of the Judgment of the High Court
D which quashed the proceedings against the manager respondent No. 1.
It was ·held that where the allegatfons 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 discretion under section 319 Cr. P.C. if it was
made out on the additional evidence laid before it. Section 319 gives
E 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 4
any stage produce evidence which satisfies the court that ...
F the other accused or those who have not been arrayed as
accused ·against whom proceedings have been guashed have ,i
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 extraordi-
nary power which is conferred on the Court and should be
G 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
H it plain that the mere fact that the proceedings have been
SOHAN LAL v. STATE OF RAJASTilAN ISAIKIA, J.J 821

quashed against respondent Nos. 2 to 5 will not present the
A
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 was pointed out that under the Cr.P.C. 1973 the Court can
take cognizance against persons who have not been made accused and B
try them in the same manner along with other accused. In the old
Code, Section 351 contained a lacuna in the mode of taking cognizance
... ·y~ .. 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 319 of the present Code gave full effect to the recommendation
of the Law Commission by removing the lacuna which was found to
exist in section 351 of the old Code.
c
In Dr. S.S. Khanna v. Chief Secretary, Patna & Ors., reported in
1983 2 SCR 724 this Court had to consider whether 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 D
the Court, could be summoned at a later stage under s. 319 of the latter
Code to stand trial for the same or a connected offence or offences
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 E
under s. 319 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 M-agistrate decided to take action under s. 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 enquiry contemplated under F
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. 319 remained unaffected, if other conditions were satisfied and the
autre fois principle adumbrated in s. 300 of the Code could not, how-
ever, apply to such a case. G

In the instant case, Vijya Bai and Jiya Bai were discharged by
the Magistrate of all the charges and the three other appellants were
discharged of the sections other than section 427 1.P.C. After the
police submitted charge sheet against them the order of discharge,
according to Mr. B.D. Sharma, could not be taken to be one under H
822 SUPREME COURT REPORTS [1990] 3 S.C.R.

s. 203 but under s. 245 which is included in Chapter XIX and deals with
A trial of warrant cases by the Magistrates. This submission has not been
refuted. That section says:

"245. When accused shall be discharged.-(!) If, upon
taking all the evidence referred to ins. 244, the Magistrate
B 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 t.his 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
c 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 Magis-
D trate 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 revisional court?
Section 397 empowers the High Court or any Sessions Judge to call for
examining the records or any proceedings before any inferior criminal
E court within its jurisdiction for the purpose of satisfying itself or him-
self 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
F
Judicial Magistrate by himself or by any of the Magistrates
subordinate to him to make, and the Chief Judicial Magis-
trate may himself make or direct any subordinate Magis-
trate 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
G
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
H opportunity of showing cause why such direction should
not be made."
SOHAN LAL v. STATE OF RAJASTHAN [SAIKIA, J.] 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) A
' 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 B
further inquiry as envisaged in s. 398 could be obviated or circum-
'y;: __ vented by taking resort to s. 319. As has already been held by this
Court, there is need for caution in resorting to s. 319. 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 c
proceed further after issue of process is discharge. 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 whole case.
The cases of appellants 4 and 5 would be one of total discharge. But it .D
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 person
may be accused of several offences and' he may be discharged of some
offences.and proceeded against for trial in respect of otlier offences.
1 This was the position regarding appellants 1, 2 & 3, who were partially
discharged. E

The High Court did not subscribe to the view taken in State v.
Gangaram Kalite reported in AIR 1965 Assam and Nagaland 9. The-
rein a chargesheet having been filed aginst 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 F
persons on 26.6.1961. Subsequently on 22.8.1961, without any fresh
chargesheet or a complaint, Sub-Divisional Magistrate decided to pro-
ceed afresh against the accused persons and ordered summons to be
issued to them, fixing a later date for evidence. 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 G
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-Divisional Magistrate. It was observed that as the order H

I-
824 SUPREME COURT REPORTS [ 1990] 3 S.C.R.

passed was an order of discharge and not one of acquittal, a fresh
A
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 discharged, would amount in law to a review of the
Judgment of the Magistrate which was not permissible having regard
B to section 369 of the Code of Criminal Procedure. Section 369 pro-
vided 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. Thakur/al Himatlal & Anr., reported in AIR 1967
Gujarat 263, holding that if at one stage on the evidence before him
C the Magistrate found that there was no prima facie case against the
accused, subsequently on enquiry as a result of further evidence if he
felt that there was prima fade case against the accused whom he had
discharged 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
0
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 provisions of s. 319 had to be
E 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 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
F 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 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
G under s. 216, in so far as the appellants 1to3 were concerned could be
dealt with under s. 216. Appellants 4 & 5 could be dealt with neither
under s. 216 nor under s. 319. 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
H extent.
G. N. Appeals allowed.