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(a) the proceedings in respect of such person shall be commenced afresh, and the witnesses re-heard;
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(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 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.

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 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: