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2004 DIGILAW 482 (ORI)

DHABALESWAR PRADHAN v. STATE OF ORISSA

2004-11-02

P.K.TRIPATHY

body2004
JUDGMENT : P.K. Tripathy, J. - This application u/s 482, Cr.P.C. has been filed by the petitioners with the prayer to quash the order of cognizance dated 3.'11.1997 in G.R. Case No. 528 of 1995 of the Court of Sub-divisional Judicial Magistrate, Jajpur. To determine the issues, it is not necessary to refer to the facts involved in the case because the contention of the parties centres round on a legal issue. 2. On the basis of the First Information Report, lodged by one Subash Chandra Behera, P.S. Case No. 157 of 1995 was registered for various offences including the offence u/s 307/34, IPC Petitioners are named in the FIR. On completion of investigation, final form was filed enlisting two of the alleged culprits, viz., Hagu @ Prafulla Das and Nandu Ch. Das, as the accused persons. Therefore, charge-sheet was not submitted against the present petitioners. The Investigating Officer reported to the Court of SDJM, Jajpur regarding commission of various other offences including the offence u/s 307/34, IPC. Learned SDJM, Jajpur on perusal of the case diary passed order on 3.11.1997 taking cognizance of the offence as per the charge-sheet and directed to issue process to the charge-sheeted accused to also the petitioners on the ground of existence of a prima facie case. That order has been described as taking cognizance of the offence against the charge-sheeted accused and the present petitioners. On refusal to receive summons as reported by the Process Server on 3.12.2002 learned SDJM, Jajpur passed order to issue NBWA against the petitioners. 3. Contention of the petitioners is that in view of the settled position of law by the Apex Court which has been taken note by this Court in the case of Bhinga Rana v. State of Orissa (2002) 22 OCR 31 the order of learned SDJM, Jajpur in issuing process against the petitioners is illegal and without jurisdiction and therefore the same is liable to be quashed. Learned counsel for the State, however, relies on the case of M/s, SWIL Ltd. v. State of Delhi and Anr. AIR 2001 SC 2747 4. Learned counsel for the State, however, relies on the case of M/s, SWIL Ltd. v. State of Delhi and Anr. AIR 2001 SC 2747 4. In the case of Bhinga (supra) this Court has taken note of various decisions of the Apex Court including the ratio in the case of M/s. SWILL Ltd. (supra) and has held that : ".....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 Magistrate is that of a post office to commit a case on the basis of challan (charge-sheet) submitted by the investigating agency. At that stage, he has no scope to add to the list of accused. Similar 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 Kishori 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." 5. in view of the above noted ratio, undoubtedly, the process which was issued by learned SDJM to the petitioners, be it in the form of summons or warrant is non-sustainable and accordingly quashed. 6. in view of the above noted ratio, undoubtedly, the process which was issued by learned SDJM to the petitioners, be it in the form of summons or warrant is non-sustainable and accordingly quashed. 6. Before parting with the case, this Court feels it proper to note here that in a case of such nature when the FIR or the case diary indicates that persons other than enlisted in the charge-sheet have been complained by the complainant to be the author of the crime, then in such a case, in view of the aforesaid ratio of the Apex Court, instead of the cognizance taking Magistrate showing enthusiasm to reach to the accused persons by issue of process, though not charge-sheeted for offences exclusively triable by the Court of Session, it should be appropriate for such Magistrate to make a reference to the High Court or to intimate to the informant/complainant, about not submitting a charge-sheet against such named accused persons, which in other words amounts to submission of final report against such culprits, so that the complainant can choose to file a protest petition in the shape of complaint for due enquiry u/s 202, Cr.P.C. to be followed with appropriate order, be it relating to cognizance or rejection of the protest petition. In this case as well, such a course can be adopted by the SDJM to meet the ends of justice. 7. With the aforesaid finding and observation, the order of issue of process against the petitioners is quashed and the Criminal Misc. case is disposed of accordingly.