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.) SECTION 209, Code of Criminal Procedure deals with the commitment of case to Court of Session when the offence is triable exclusively by it. There is nothing in Section 209, Code of Criminal Procedure which would restrict the Magistrate's power of taking cognizance under Section 190, Code of Criminal Procedure As held by the Supreme Court in Raghubar Dubey v. State of Bihar, : 1967 S.C.D. 455 : A.I.R. 1967 SC 1167, once cognizance has been taken by the Magistrate, he takes cognizance of an offence and not offender; once he takes cognizance of an offence it is his duty to find out who the offenders really are and once he comes to the conclusion that apart from the persons sent up by the Police, some other persons are involved, it is his duty to proceed against those persons. The summoning of the additional accused is part of the proceeding initiated by his taking cognizance of an offence.