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2005 DIGILAW 529 (ORI)

N. Dillip Reddy v. State of Orissa

2005-09-09

R.N.BISWAL

body2005
JUDGMENT R. N. BISWAL, J. — This CRLMC arises out of a petition under Section 482 Cr.P.C. filed on behalf of the petitioners where they threw the gauntlet to the order dated 15.7.2003 passed by the J.M.F.C., Purusottampur in G.R. Case No.110 of 1996(A) refusing to reconsider the order of taking cognizance for the offence under Sections 148/324/506/302/149 I.P.C. dated 5.12.1996. 2. In the aforesaid G.R. Case police submitted charge sheet against the accused persons other than the petitioners. Learned J.M.F.C., Purusottampur took cognizance of the aforesaid offences against the charge sheeted accused persons and the petitioners whose name did not find place in the charge sheet vide order dated 15.12.1996 and issued process against them. 3. Being aggrieved by the said order, the petitioners preferred Criminal Misc. Case No.4500 of 1996 before this Court, which was disposed of by order dated 3.9.2001 with the following observation : “The matter is remitted back to the trial Court to reconsid¬er the petitioners' request that when their names do not find place in the charge sheet, no cognizance should have been taken against them. If the petitioners make such request, the trial Court shall reconsider the same keeping in view the decision of the Supreme Court in Kishori Singh and others v. State of Bihar and another (2000)19 OCR (SC) 647.” 4. Accordingly, the petitioners approached the Court below and filed a petition to reconsider the order of taking cognizance against them. Learned J.M.F.C., again rejected the petition on 1.11.2002 inter alia holding that the case record was not avail¬able with him and that in the aforesaid order, the trial Court and not he was directed to reconsider the order of taking cognizance. Challenging the said order the petitioners preferred Criminal Revision No.35 of 2002 before the Sessions Judge, Ber¬hampur which on being transferred was disposed of by Additional Sessions Judge, Berhampur on 3.6.2003. The Additional Sessions Judge allowed the revision, set aside the impugned order dated 1.11.2002 and remitted back the matter to J.M.F.C. with direction to consider the petition filed by the petitioners against the order of taking cognizance against them in the light of decision of the Supreme Court of India in Kishori Singh and others v. State of Bihar and another (2000) 19 OCR (S.C.) 647. The J.M.F.C. rejected the petition dated 28.10.2002 vide order dated 15.7.2003 holding that he cannot review his own order and that the original record was not available with him. Being aggrieved with the said order the petitioners have preferred this CRLMC as stated earlier. 5. Learned counsel appearing for the petitioners submitted that Magistrate has no power to take cognizance of any offence triable by the Court of Session against a person who has not been named as an accused in the charge sheet submitted by police under Section 173 of Cr.P.C. In support of his submission he relied upon the decision in Kishori Singh and others v. State of Bihar and another, reported in (2000) 19 OCR (SC)-646 where the apex Court held as follows : "x x x x x x We have no hesitation to come to the conclusion that the Magistrate could not have issued process against those persons who may have been named in the F.I.R. as accused persons, but not charge sheeted in the charge sheet that was filed by police under Section 173 Cr.P.C." Of course in this decision it has further been held : “So far as those persons against whom charge sheet has not been filed, they can be arrayed as “accused persons” in exercise of powers under Section 319 of Cr.P.C. when some evidence of materials are brought on record in course of trial or they could also be arrayed as “accused persons” only when a reference is made either by the Magistrate while passing an order of commit¬ment or by the learned Sessions Judge to the High Court and the High Court, on examining the materials, comes to the conclusion that sufficient materials exist against them even though the police might not have filed charge sheet, as has been explained in the latter three judge bench decision.” Learned Addl. Standing Counsel supported the order passed by the Magistrate. 6. In the case at hand, admittedly the names of the peti¬tioners do not find place in the charge sheet submitted by the police. The case in question is exclusively triable by the Court of Session. Standing Counsel supported the order passed by the Magistrate. 6. In the case at hand, admittedly the names of the peti¬tioners do not find place in the charge sheet submitted by the police. The case in question is exclusively triable by the Court of Session. Besides the decision of the Apex Court cited above this Court also held in the case of Bhinga Rana v. State of Orissa* reported in (2002) 22 OCR 31 that scope of interference by the cognizance taking Magistrate in a case triable by the Court of Session is limited to the extent that he is to go by the charge sheet. So, there is no need at present to enter into the controversy as to whether the original record is there with the J.M.F.C., Purusottampur or not and whether he has power to review his order when directed to do so by superior Court. In view of the decision of the Apex Court and of our own Court as cited above, the order of cognizance taken against the petitioners for the offence under Sections 148/324/506/302/149 I.P.C. cannot stand. Therefore, the said order of taking cognizance and the subsequent orders thereto is hereby quashed. 7. However, it is made clear that this finding would not fetter the powers of the J.M.F.C., Purusottampur or the Sessions Judge/Additional Sessions Judge, Berhampur to act in accordance with law as laid down by the Apex Court in case of Kishori Singh (supra). Accordingly the CRLMC is disposed of. CRLMC disposed of.