Bidyut Prava Khuntia v. State of Orissa
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLMC Nos.2817 of 2003 and batch In CRLMC No.2817 of 2003 Mama @ Bidyut Prava Khuntia …. Petitioner Mr. Gourisankar Pani, Advocate -versus- State of Orissa Opposite Party Mr. J. Katikia, Additional Government Advocate …. In CRMC No.2407 of 1999 Sucheta Kanungo and another …. Petitioners Mr. D. Nayak, Senior Advocate -versus- State of Orissa
Legal Reasoning
Judge of this Court in CRLMC No.2817 of 2003 (Mama @ Bidyut Prava Khuntia v. State of Orissa (2004) 29 OCR 329. In the said order, it was noted by the learned Single Judge of this Court that although the earlier judgments of the Supreme Court of India in Raj CRLMC Nos.2817 of 2003 and batch Page 2 of 8 Kishore Prasad v. State of Bihar AIR 1996 SC 1931, Ranjit Singh v. State of Punjab (1998) 7 SCC 149 and Kishori Singh v. State of Bihar (2000)19 OCR (SC) 647 had held that when an offence exclusively triable by the Court of Sessions is alleged to have been committed and the matter is investigated, the Magistrate has to go by the person named in the charge sheet and cannot add or subtract to that list since he has no jurisdiction in that respect, a contrary view was taken by the Supreme Court in M/s. SWIL Ltd. v. State of Delhi AIR 2001 SC 2747 and Rajinder Prasad v. Bashir (2002) 23 OCR (SC) 404 where it was held that the Magistrate has the power under Section 190 Cr PC not only to add offences but also accused persons on the basis of the evidence collected by the police. It is as a result of the conflict of the decisions of the Supreme Court as noted hereinbefore that the reference has been made to this Division Bench. 3. More or less, a similar question arises in each of the other five connected petitions in this batch. 4. In Raj Kishore Prasad v. State of Bihar (1996) 4 SCC 495 which is a by a Bench of two Judges, the question that arose for consideration was as under: “2. Can a Magistrate undertaking commitment under Section 209 Cr.P.C. of a case triable by a court of session, associate another person as accused, in exercise of the power under Section 319 Cr.P.C., or under any other provision?” The above question was answered in the negative. In other words, it was held that the Magistrate has no power to add a person as an CRLMC Nos.2817 of 2003 and batch Page 3 of 8 accused under Section 319 Cr PC when handling a matter under Section 209 Cr PC. 5. Next, in Ranjit Singh v. State of Punjab (1998) 7 SCC 149, the aforementioned view in Raj Kishore Prasad (supra) was reiterated and it was held that from the stage of committal till the sessions court reaches the stage of evidence collection indicated under Section 230 Cr PC, that court can deal with only the accused referred to it in Section 209 Cr PC. The same view has been reiterated in Rajinder
Arguments
Opposite Party Mr. J. Katikia, Additional Government Advocate for the State Mr. Devashis Panda, Advocate for the Informant …. In CRLREV No.217 of 2006 Babu @ Sk. Raban Tarafdar and others …. Petitioners Mr. Devashis Panda, Advocate -versus- State of Orissa Opposite Party Mr. J. Katikia, Additional Government Advocate for the State Mr.D.P. Dhal, Senior Advocate for the Informant …. In CRLREV No.446 of 2006 Bipin Sahoo and another …. Petitioners Mr. Devashis Panda, Advocate -versus- State of Orissa Opposite Party Mr. J. Katikia, Additional Government Advocate for the State Mr.D.P. Dhal, Senior Advocate for the Informant …. CRLMC Nos.2817 of 2003 and batch Page 1 of 8 In CRLMC No.625 of 2008 Suratha Sethi and another …. Petitioners -versus- None State of Orissa Opposite Party Mr. J. Katikia, Additional Government Advocate …. In CRLMC No.1521 of 2010 Biswanath @ Basanta Sethi and others …. Petitioners -versus- None State of Orissa and another Opposite Parties Mr. J. Katikia, Additional Government Advocate …. CORAM: THE CHIEF JUSTICE JUSTICE CHITTARANJAN DASH JUDGMENT 14.09.2022 Dr. S. Muralidhar, CJ. 1. The present batch of cases raises an interesting question of law concerning the power of a Judicial Magistrate to take cognizance of an offence essentially and exclusively triable by the court of sessions vis-à-vis an accused person who has not been charge sheeted. 2. The reference to the present Division Bench of two Judges is pursuant to an order dated 9th July 2004 passed by learned Single