ASHOK KUMAR PANDA Vs. STATE OF ORISSA

JUDGEMENT

(1.) THE petitioner in this application under Sec. 482, Cr.P.C. has assailed the order dated 4.2.2002 passed by learned S.D.J.M., Bhanjanagar taking cognizance and directing issue of NBWA for the offence under Secs. 376, 493, 417, 109, 506/34, IPC arraying him as an accused in G.R.Case No. 404 of 2001 (after split up converted to G.R.Case No. 404 of 2001 (A) corresponding to Buguda P.S.Case No. 160 of 2001.

(2.) THE factual scenario which resulted in the initiation of the aforementioned G.R.Case briefly stated runs as under : The informant Sweta Pradhan lodged a written report on 3.10.2001 alleging therein that about 7 to 8 months back one Rajkumar Senapati forcibly committed sexual intercourse with her and also threatened her with dire consequence if she disclosed the same to anybody. Under the threat she had not disclosed the same and kept mum and taking advantage of this situation Rajkumar Senapati went on maintaining sexual relationship with her. On 5.8.2001 when she was going to take tailoring lesson at village Gangadhar in a trekker, at that time Rajkumar Senapati alongwith Birendra and Bhabagrahi insisted her to go with Rajkumar Senapati and accordingly she went with him to Bhanjanagar. Subsequently, she went with Rajkumar Senapati to various places and ultimately they got married at Puri. When both of them returned back to Jagannathprasad some unknwon persons came in an Ambassador Car and a motor cycle and Rajkumar Senapati went away with them in a motor cycle. Two of those persons came out of the car who were introduced to her by Bhabagrahi as Niranjan Pradhan, the brother -in -law of Rajkumar, and another to be a friend of Rajkumar and all of them threatened the informant. On this FIR lodged by the informant a case was registered and investigation started. After recording of the statements of the witnesses and on completion of the investigation charge -sheet was submitted against said Rajkumar under Secs. 493, 376 and 417, IPC by charge -sheet No. 22 dated 2.2.2002, before the S.D.J.M., Bhanjanagar who on 4.2.2002 while taking cognizance of the offence not only decided to proceed against the charge -sheeted accused Rajkumar Senapati but also observed in the impugned order that there were sufficient materials to presume that not only charge -sheeted accused Rajkumar Senapati involved in this case but also all other accused persons named in the FIR as reported and stated by the victim lady namely Birendra Altia, Bhabagrahi Behera, Niranjan Pradhan and Ashok Panda (the present petitioner, were involved in the case which was registered under Secs. 376, 506, 493, 109/34, IPC. He also observed in the said order that he found there were sufficient materials to take cognizance of the said offence and proceeded against those persons including the present petitioner and accordingly he took cognizance of the said offences and directed issuance of NBWA against them for their production in the Court by 20.3.2002.

(3.) THE expression "accused persons" would obviously mean those accused person or persons against whom the police had filed the charge -sheet. Learned counsel Mr. Manoj Kumar Mishra, appearing for the petitioner raises the contention that under the scheme of the Cr.P.C., in a case where the offence is triable solely by the Court of Session, when the police files a charge -sheet and arrays only one person as an accused though many more might have been named in the FIR, the learned Magistrate or the Sessions Judge would have no jurisdiction to array them as accused persons at a stage prior to Section 319, Cr.P.C., the stage when some evidence or materials are collected in course of trial and even in that view of the matter the order of the Magistrate must be held to be erroneous and this Court should invoke its inherent power to quash the same by interfering with the order of the Magistrate impugned.