MAMA Vs. STATE OF ORISSA

JUDGEMENT

(1.) The present batch of cases raises an interesting question of law concerning the power of a Judicial Magistrate to take cognizance of an offence essentially and exclusively triable by the court of sessions vis-à-vis an accused person who has not been charge sheeted.

(2.) The reference to the present Division Bench of two Judges is pursuant to an order dtd. 9/7/2004 passed by learned Single Judge of this Court in CRLMC No.2817 of 2003 (Mama @ Bidyut Prava Khuntia v. State of Orissa (2004) 29 OCR 329. In the said order, it was noted by the learned Single Judge of this Court that although the earlier judgments of the Supreme Court of India in Raj Kishore Prasad v. State of Bihar AIR 1996 SC 1931, Ranjit Singh v. State of Punjab (1998) 7 SCC 149 and Kishori Singh v. State of Bihar (2000)19 OCR (SC) 647 had held that when an offence exclusively triable by the Court of Sessions is alleged to have been committed and the matter is investigated, the Magistrate has to go by the person named in the charge sheet and cannot add or subtract to that list since he has no jurisdiction in that respect, a contrary view was taken by the Supreme Court in M/s. SWIL Ltd. v. State of Delhi AIR 2001 SC 2747 and Rajinder Prasad v. Bashir (2002) 23 OCR (SC) 404 where it was held that the Magistrate has the power under Sec. 190 Cr PC not only to add offences but also accused persons on the basis of the evidence collected by the police. It is as a result of the conflict of the decisions of the Supreme Court as noted hereinbefore that the reference has been made to this Division Bench.

(3.) More or less, a similar question arises in each of the other five connected petitions in this batch.