RAJKISHORE MOHAPATRA Vs. STATE OF ORISSA

JUDGEMENT

(1.) The short question that falls for determination in this case is whether the Magistrate after passing the order taking cognizance of the offence and issuing process to the accused persons named in the charge-sheet filed by the police has any power to issue process to other accused persons not named in the charge-sheet to face trial.

(2.) In this application filed under Section 482 of the Code of Criminal Procedure (for short, "Cr. P.C."), the petitioners have prayed for quashing the order passed by the learned Sub-Divisional Judicial Magistrate, Khurda on 9-5-1988 in G.R. Case No. 344 of 1987, which was confirmed by the learned First Additional Sessions Judge, Puri, by his order dated 7-5-1992 in Criminal Revision No. 99 of 1988. In the order, the learned Magistrate, on a finding that there exists a prima facie case for the offences punishable under Sections 143/144/436/294 and 506 of the Indian Penal Code against the petitioners, directed process to be issued against them. The G.R. Case was initiated on the first information report lodged by the informant (P.W. 2) in Tangi police-station on 16-5-1987 naming the petitioners and others as accused persons. The Officer-in-charge of Tangi police station after investigation submitted charge-sheet on 7-3-1988 naming certain other persons as accused persons sent up for trial and showing the names of the petitioners in col. 2 of the charge-sheet as accused persons not sent up for trial. On receipt of the charge-sheet, the learned Magistrate by order dated 17-3-1988 took cognizance and issued process to the accused persons sent up for trial. No process was issued to the petitioners. Subsequently on 25-4-1988 the informant (P.W. 2) filed an application to issue process to the petitioners who had not been sent up by the police for trial, alleging that on the materials available on record, a prima facie case of the offences was established against them. Objection to the said petition was filed on behalf of the petitioners. On consideration of the matter, the learned Magistrate passed the order dated 9-5-1988 directing process to be issued to the petitioners to face trial of the offences noticed earlier. The revision petition filed by the petitioners against the said order was dismissed by the learned Additional Sessions Judge.

(3.) The thrust of the submissions of Miss S. Ratho, learned counsel for the petitioners, is that the learned Magistrate had no power to summon the petitioners to face trial at that stage of the case. Eluciditing the point, she submitted that in the report submitted by the investigating officer under Section 173 Cr. P.C. (the charge-sheet), the petitioners had not been named as accused persons sent up for trial. On accepting the report, the learned Magistrate took cognizance of the offence and issued process to the accused persons sent up for trial. Thereafter, the learned Magistrate had no power to issue summons to the petitioners to stand trial in the case on the selfsame materials. According to Miss Ratho, this question could be considered only at the stage of framing of charge under Section 228 Cr. P.C. or during trial as provided under Section 319 thereof.