BHINGA RANA Vs. STATE OF ORISSA

JUDGEMENT

(1.) IN this application under Section 482, Cr. P.C. the substantial 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 Anr., AIR 1996 SC 1931; Ranjit Singh v. State of Punjab, (1998) 15 OCR (SC) 476; and Kishori Singh and Ors. 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 Anr. AIR 2001 SC 2747 argues that in the latest decision of the apex Court the Magistrate'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 highlighted 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.) THE aforesaid being the settled position of law on analysing the fact involved in this case which is not in dispute it is seer 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 paragraph 10 of the judgment in the case of Ranjit Singh (supra) is available and i: so required that may be availed of by the learned Magistrate 01 by the trial Court.