KRUSHNA CHANDRA MOHANTY Vs. STATE OF ORISSA

JUDGEMENT

(1.) The facts giving rise to this Criminal Misc. Case may be briefly stated as follows: In G.R. Case No. 12 of 1989, the S.D.J.M., Jajpur, on receipt of the charge-sheet under Sections 147, 148, 149, 323, 324 and 302, I.P.C. took cognizance against the seven accused persons named therein on 16-5-1989. As the accused persons were absent, N.B.Ws. were issued against the said seven accused persons, including the absconders, fixing 6-7-1989 as the date for their production. On 6-7-1989, the accused persons were alleged to be represented under Section 317, Code of Criminal Procedure On that date the A.P.P. filed a petition for taking cognizance against the present Petitioner also. On 29-7-1989 the learned S.D.J.M. allowing the petition of the A.P.P. issued process against the present Petitioner fixing 2 9-1989 for his appearance. Being aggrieved by that order, the present Criminal Misc. Case is filed for quashing that order.

(2.) The only point that arises for consideration in this Criminal Misc. Case is whether the learned S.D.J.M. had jurisdiction to pass the impugned order on 29-7-1989 summoning the present Petitioner also to figure as an accused in G.R. Case No. 12 of 1989 when in the charge-sheet filed under Section 302, I.P.C. and other sections, the Petitioner was not named as an accused.

(3.) On a perusal of the charge-sheet filed in the G.R. Case it is seen that as the offence under Section 302, I.P.C. is triable exclusively by the Court of Session, the learned S.D.J.M. was ultimately bound to commit the case to the Court of Session under Section 209, Code of Criminal Procedure The learned Counsel for the Petitioner contended that in view of the restrictions imposed on the powers of the committing Magistrate under Section 209, Code of Criminal Procedure the learned S.D.J.M. had no jurisdiction to pass the impugned order summoning the Petitioner also as an accused in the case and in this context he very much relied on Sanjoy Gandhi v. Union of India, 1978 AIR(SC) 514. The observations of the Supreme Court which are considered relevant and material are quoted below.