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2009 DIGILAW 512 (ORI)

SRI BASU BARAD ` BASUDEV BARAD v. STATE OF ORISSA

2009-07-16

M.M.DAS

body2009
JUDGMENT : M.M. Das, J. - Heard learned Counsel for the Petitioner and learned Counsel for the State. 2. The Petitioners in the instant case have challenged the order dated 21.01.2009 passed by the learned S.D.J.M., Koraput in G.R. Case No. 520 of 2008. By the said order, the learned S.D.J.M. after receiving the charge sheet has taken cognizance of the offences under Sections 294/ 506/ 302/ 426/ 34 IPC against the accused persons named in the charge sheet and in addition to that, by exercising jurisdiction u/s 319 Code of Criminal Procedure has taken cognizance against the present Petitioners, who were not named as accused persons in the charge sheet. 3. It appears from the impugned order that the learned S.D.J.M, directed the C.S.I to amend the charge sheet and as per the said order, the C.S.I included the Petitioners as accused persons along with others. 4. Learned Counsel for the Petitioners relies upon the decision in the case Raj Kishore Prasad Vs. State of Bihar and another, and submits that the Supreme Court in the aforesaid Case has clearly laid down the Magistrate cannot exercise power u/s 319 Code of Criminal Procedure to associate any other person as accused in a case triable by the Court of Session, even at the stage of commitment. It is only on committal of the case, the Court of Session can exercise jurisdiction u/s 319 Code of Criminal Procedure and add a new accused on the basis of evidence recorded by it by providing the accused necessary safeguards envisaged u/s 319(4) Code of Criminal Procedure. 5. I have perused the aforesaid decision in the case of Raj Kishore Prasad (supra), wherein the Supreme Court in paragraphs-8 and 16 has held thus: 8. Sub-section (1) of Section 319 makes it clear that it operates in an ongoing inquiry into, or trial of, an offence. In order to apply Section 319, it is thus essential that the need to proceed against the person other than the accused, appearing to be guilty of offence, arises only on evidence recorded in the course of any inquiry or trial. Proceedings before a Magistrate u/s 209 Code of Criminal Procedure are patently not trial proceedings and were never considered so at any point of time historically. There has never been any doubt on that account. Proceedings before a Magistrate u/s 209 Code of Criminal Procedure are patently not trial proceedings and were never considered so at any point of time historically. There has never been any doubt on that account. Before the amendment of the Code of Criminal Procedure in the present form, commitment proceedings had the essential attributes of an inquiry and were termed as such. How do they continue to be so is the core question to determine and spell out the powers of the Magistrate u/s 209 Code of Criminal Procedure. If proceedings u/s 209 Code of Criminal Procedure continue to be an inquiry, Section 319 Code of Criminal Procedure would be obviously attracted, subject of course to deciding whether the materials put forth by the investigation could be termed as ' evidence' as otherwise no evidence is recordable by a Magistrate in such proceedings . 16. Thus we come to hold that the power u/s 209 Code of Criminal Procedure to summon a hew offender was not vested with a Magistrate on the Plain reading of its text as well as proceedings before him not being an ' inquiry' and material before him not being ' evidence'. When such power was not so vested, his refusal to exercise it can not be corrected by a Court of Revision, which may be the Court of Session itself awaiting the case on commitment, merely on the specious ground that the Court of Sessions can, in any event, summon the accused to stand trial, along with the accused meant to be committed for trial before it. Presently it is plain that the stage for employment of Section 319 Code of Criminal Procedure has not arrived. The order of the Court of Session requiring the Magistrate to arrest and logically commit the Appellant along with the accused proposed to be committed to stand trial before it, is patently illegal and beyond jurisdiction. Since the Magistrate has no such power to add a person as accused u/s 319 Code of Criminal Procedure when handling a matter u/s 209 Code of Criminal Procedure, the Court of Session, in purported exercise of revisional powers cannot obnligate it to do so. The question posed at the outset is answered accordingly in this light. Since the Magistrate has no such power to add a person as accused u/s 319 Code of Criminal Procedure when handling a matter u/s 209 Code of Criminal Procedure, the Court of Session, in purported exercise of revisional powers cannot obnligate it to do so. The question posed at the outset is answered accordingly in this light. When the case comes after commitment to the Court of Session and evidence is recorded, it may then in exercise of its powers u/s 319 Code of Criminal Procedure on the basis of the evidence recorded by it, if circumstances warranting, proceed against the Appellant, summon him for the purpose, to stand trial along with the accused committed, providing him the necessary safeguards envisaged under Sub-section (4) of Section 319. Such course is all the more necessary in the instant case when expressions on merit have extensively been made in the orders of the Magistrate, the Court of Session and that of the High Court. Any other course would cause serious prejudice to the Appellant. We order accordingly. 6. Examining the facts of the present case in the touch stone of the aforesaid decision, I find that the impugned order is unsustainable in law. The said order is accordingly quashed. The CRLMC is accordingly allowed.