BACHULAL MEHETA Vs. STATE OF ORISSA

JUDGEMENT

(1.) THE Petitioner assails the order passed by the trial court under Section 319 of the Code of Criminal Procedure (for short. 'the Code') taking cognisance of an offence punishable under Section 411 of the Indian Penal Code against him and summoning him as an accused person to stand his trial along with the accused Jagannath Mishra, who, on the basis of a charge -sheet placed against him, stood charged for commission of offences punishable under Sections 457 and 380 of the Indian Penal Code. The accused Jagannath Misra, it was alleged, had committed theft from the dwelling house of Bairagi Charan Barik of village Shankarpur during the night of September 9/10, 1980. In the charge -sheet, the Petitioner and Rankanidhi Sahu, against whom the trial court has also taken cognisance for an offence punishable under Section 411 of the Indian Penal Code for his trial the same case, had been named as witnesses for the prosecution as the other accused, namely, Jagannath Misra, bad allegedly sold some stolen articles to them. After examination of three witnesses for the prosecution, the learned Magistrate passed the following orders:

(2.) MR . S. Misra -I, the learned Counsel for the Petitioner, has submitted before me that there was complete absence of evidence to indicate that the Petitioner had dishonestly received or retained any stolen property knowing or having reason to believe the same to be a stolen property and the learned Magistrate had no jurisdiction to proceed under Section 319 of the Code and pass the impugned order. It has been submitted at the Bar that Rankanidhi Sahu, the other accused person against whom cognisance has also been taken by the impugned order, has not come up in revision. I have, however, put the learned Additional Standing Counsel to notice and to submit as to whether the impugned order passed against the other accused person who has not challenged the order should not also be set aside. The learned Additional Standing Counsel has submitted that on the materials on record, the learned Magistrate went wrong in proceeding against the Petitioner and Rankanidhi Sahu. I am of the view, for the reasons to follow, that the contention raised on behalf of the Petitioner shall prevail and the concession made by the learned Additional Standing Counsel is fair and reasonable.

(3.) IN a recent case reported in Municipal Corporation of Delhi v. Ram Kishan Rohtagi and Ors. : A.I.R. 1983 S.C. 67, their Lordships of the Supreme Court examined the scope of Section 319 of the Code and observed and held: