PRATIMA BEHERA Vs. STATE OF ORISSA

JUDGEMENT

(1.) HEARD .

(2.) THIS application under Section 482, Cr.P.C is disposed of at the stage of hearing on admission with active participation of both the parties.

(3.) AS rightly argued by the learned counsel appearing for the petitioner and correctly conceded by the Addl. Standing Counsel appearing lot the State, learned S.D.J.M. misconceived the position of law and passed a wrong order. After submission of charge -sheet, it is the duty of the Magistrate to peruse the case diary and to find out against whom he is to issue process. In other words, at that stage he is to find out if a prima facie case is made out against any person and accordingly he is to issue process if he finds prima facie materials to proceed against any other person besides the charge -sheeted accused persons, then that order of the Magistrate is not in exercise of the power under Section 319, Cr.P.C. but such order is one under Section 204, Cr.P.C. Thus, if the learned cognizance -taking Magistrate finds that prima facie case exists against some more persons other than the charge -sheeted accused persons, he should issue process to them to face the trial. That being the position of law, the impugned order is set aside and the learned S.D.J.M. is directed to peruse the case diary and to pass appropriate order in accordance with law. In other words, if the learned S.D.J.M. shall find that there are sufficient materials to proceed against opp. party Nos. 2 and 3 Udhaba and Kailash then he may issue processes to them.