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2001 DIGILAW 529 (ORI)

Bhinga Rana v. State of Orissa

2001-12-10

P.K.TRIPATHY

body2001
ORDER In this application under Section 482, Cr.P.C. the substan¬tial prayer of the petitioner is to quash the order of issue of process against him by learned S.D.J.M., Dharmagarh in G. R. Case No. 494 of 1999 on the ground that though the charge-sheet is filed for the offence under Sections 294, 323, 324, 307/34, IPC, petitioner was not named as an offender in the charge-sheet and notwithstanding that learned S.D.J.M. exceeding the power and jurisdiction vested in him issued process against the petitioner. 2. Learned counsel for the petitioner in course of his prolonged argument filed a memo of citation of large number of cases and after placing a few out of that he became conscious that the legal issue which is to be considered in this Court is short and single. Thus, he has placed reliance on the case of Raj Kishore Prasad v. State of Bihar and another, AIR 1996 SC 1931 ; Ranjit Singh v. State of Punjab, (1998) 15 OCR (SC) 476; and Kishori Singh and others v. State of Bihar ad another; (2000) 19 OCR (SC) 647 in support of his contention that when an offence exclusively triable by the Court of Session is alleged to have been committed and the matter is investigated the Magistrate has to go by the persons named in the charge-sheet and not to add or subtract the list having no jurisdiction in that respect. Learned Addl. Govt. Advocate referring and strongly relying on the case of M/s. SWIL Ltd. v. State of Delhi and another, AIR 2001 SC 2747 argues that in the latest decision of the apex Court the Magis¬trate’s duty, responsibility and power under Section 190 (1)(b) read with Section 204, Cr.P.C. to add to the list of the accused in the event of existence of a prima facie case has been high¬lighted following the ratio from the case of Raghubans Dubey v. State of Bihar, AIR 1967 SC 1167 and therefore that view should prevail so far as the present case is concerned. 3. After hearing both the parties and making a careful perusal of the aforesaid citations this Court finds that there is no conflict in opinion in the ratio laid down in the above cited decisions. In the case of M/s. SWIL ltd. 3. After hearing both the parties and making a careful perusal of the aforesaid citations this Court finds that there is no conflict in opinion in the ratio laid down in the above cited decisions. In the case of M/s. SWIL ltd. (supra) the fact avail¬able before the apex Court was relating to the offence under Sec. 420/406/120-B, I.P.C., all triable by the Magistrate of First Class. Therefore the cannon of law as propounded by the apex Court in Raghubans Dubey (supra) was referred to and relied on to propound that the Magistrate has jurisdiction at that stage to add to the list of the accused persons notwithstanding omission of such names in the charge-sheet. In a case which is triable by Magistrate the cognizance taking Magistrate is not only provided with the jurisdiction but also the duty under the Code and also the pronouncement in several decisions that Magistrate is to apply his judicial mind and to find out if a prima facie case is made out for the alleged offence or any other offence and also against whom such allegations are prima facie available and accordingly to issue process to them. That principal has been reiterated by the apex Court in the case of M/s. SWIL Ltd. On the other hand, referring to several other decisions of the apex Court in the case of Raj Kishore Prasad (supra) the apex Court has emphasised that in a case where the offence is exclusively triable by the Court of Session, the role of committing Magis¬trate is that of a post office to commit a case on the basis of chalan (charge-sheet) submitted by the investigating agency. At that stage, he has no scope of add to the list of accused. Simi¬lar view was expressed by the apex Court in the case of Ranjit Singh (supra) and that was followed with approval by the apex Court in the case of Kishore Singh (supra). Therefore, the scope of interference by the cognizance taking Magistrate in a case exclusively triable by the Court of Session is limited to the extent that he is to go by the charge-sheet whereas in other case as propounded by the apex Court in M/s. SWIL Ltd. the Magistrate has absolute jurisdiction. 4. Therefore, the scope of interference by the cognizance taking Magistrate in a case exclusively triable by the Court of Session is limited to the extent that he is to go by the charge-sheet whereas in other case as propounded by the apex Court in M/s. SWIL Ltd. the Magistrate has absolute jurisdiction. 4. The aforesaid being the settled position of law on analysing the fact involved in this case which is not in dispute it is seen that petitioner being not charge-sheeted as accused learned S.D.J.M. could not have added him as accused and issued process against him. However, the recourses as provided in para¬graph 10 of the judgment in the case of Ranjit Singh (supra) is available and if so required that may be availed of by the learned Magistrate or by the trial Court. 5. With the aforesaid observation the process issued against the petitioner stands quashed and the Cri. Misc. Case is allowed accordingly. Crl. Misc. Case allowed.