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2000 DIGILAW 518 (ORI)

Brajananda Nayak v. State of Orissa

2000-11-14

P.K.TRIPATHY

body2000
ORDER 14.11.2000 - Heard. In this Application under Sec. 482, Cr.P.C. petitioners challenge the order dated 25.1.2000 of the J.M.F.C., Basudevpur in G.R.Case No. 686 of 1999. By that order learned J.M.F.C. after fresh perusal of the statements of the Case Diary and also the statements under Sec. 164, Cr.P.C. added the petitioners as ac¬cused persons and directed to issue non-bailable warrant of arrest against them. The said three persons assail that order on the ground that learned J.M.F.C. had no jurisdiction to pass such an order at that stage of the proceeding. It is not disputed at the Bar that after submission of the Final Form (Charge-sheet) learned J.M.F.C. while taking cogni¬zance, issued process against the accused persons named in the charge-sheet. On a subsequent date, i.e., on 13.10.99 the prose¬cution filed an application to add the petitioners as the accused persons and to issue process against them. While disposing of that application, learned J.M.F.C., Basudevpur passed the im¬pugned order. Law is well settled that after taking cognizance of the offence in accordance with the provision under Sec. 190 (1) (b), Cr.P.C. the cognizance taking Magistrate is to consider the materials in the Case Diary and to issue process against the persons mentioned in the charge sheet and at that stage he cannot add or substitute the names of the accused persons. Admittedly, in the present case, learned Magistrate having taken cognizance of the offences under Secs. 341, 302,323, 427/34, I.P.C. the said offences are exclusively triable by the Court of Session. Thus, in view of the ratio in the cases of Raj Kishore Prasad v. State of Bihar and another, AIR 1996 SC 1931 and Kishore Singh and others v. State of Bihar and another, (2000) 19 OCR (SC) 647, the aforesaid order of the learned Magistrate is contrary to the provision of law and accordingly set aside. However, it is need¬less to say that at the stage of trial after recording some evidence if application under Sec. 319, Cr.P.C. shall be moved by the informant or the prosecution, that may be considered in accordance with law by the trial Court The Crl. Misc. case is thus allowed. Misc. Case allowed.