NABIR KHAN Vs. STATE OF ORISSA

JUDGEMENT

(1.) Upon hearing Mr. P.K Misra, the learned counsel for the petitioner and Mr. Ajit Rath, the learned Additional Standing Counsel, I am of the view that the impugned order passed by Mr. A. P. Das, the learned Sub divisional Judicial Magistrate, Bhadrak, under section 319 of the Code of Criminal Procedure (for short, the Code) summoning the petitioner as an accused person in a case in which Chanda Dei and Waish Ahmed have been facing trial for commission of an offence punishable under section 3(a) of the Railway Property (Unlawful Possession) Act. 1966 (for short, the Act), has been passed without jurisdiction and in flagrant violation of the provisions made in section 319 of the Code and it would be noticed, for the reasons to follow, that the impugned order has been passed not to further the ends of justice and it has caused serious injustice and prejudice to the present petitioner.

(2.) The prosecution came forward with a case that accused Chanda Devi was in wrongful possession of railway property and that consequent upon her statement, railway property had been recovered from a rented house in the occupation of the other accused person, namely, Waish Ahmed. The petitioner is the landlord and he had given out the house to the co-accused Waish Ahmed on rent. The petitioner had been named as a witness for the prosecution in the prosecution report. After examination of the Sub-Inspector of Railway Protection Force, the learned Sub- divisional Judicial Magistrate considered the question of framing a charge against the accused person standing trial and while doing so, passed the impugned order summon in the petitioner as an accused person holding that he found prima facie material against the petitioner for commission of the offence punishable under section 3(a) of the Act. Although not expressly stated in the order, the impugned order had been passed under section 319 of the Code.

(3.) Section 319 of the Code reads: - p319 Power to proceed against other persons appearing to be guilty of offence.