Judicial Magistrate Can Take Cognizance Even Against Persons 'Not Charge-Sheeted' For Offences Exclusively Triable By Court Of Sessions: Orissa HC

"The above view in Dharam Pal (supra) which was by a Bench of five Judges of the Supreme Court continues to hold the field. Importantly, in Nahar Singh v. State of Uttar Pradesh (2022) 5 SCC 295, it was noted in para 25 that "jurisdiction of the Magistrate to take cognizance of an offence triable by a Court of Sessions is not in controversy before us"."

Background:

The reference to the present Division Bench was pursuant to an order dated 9^th July 2004 passed by a Single Judge Bench in Mama @ Bidyut Prava Khuntia v. State of Orissa, (2004) 29 OCR 329. It was therein noted that the earlier judgments of the Supreme Court in Raj Kishore Prasad v. State of Bihar, Ranjit Singh v. State of Punjab and Kishori Singh v. State of Bihar 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.

However, a contrary view was taken by the Supreme Court in M/s. SWIL Ltd. v. State of Delhi and Rajinder Prasad v. Bashir, where it was held that the Magistrate has the power under Section 190, Cr.P.C. not only to add offences but also accused persons on the basis of the evidence collected by the police.

Findings:

The Court observed that in Raj Kishore Prasad (supra), it was held that the Magistrate has no power to add a person as an accused under Section 319, Cr.P.C. when handling a matter under Section 209, Cr.P.C. In Ranjit Singh (supra), the above view adopted 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.P.C., that Court can deal with only the accused referred to it in Section 209, Cr.P.C. The same view was reiterated Kishori Singh v. State of Bihar (supra).

However, a different view was taken earlier in Kishun Singh v. State of Bihar, which was disapproved later in Ranjit Singh (supra). The view in Ranjit Singh (supra) was doubted by the Apex Court in its order in Dharam Pal v. State of Haryana, (2004) 13 SCC 9 and accordingly, the matter was referred to a Constitution Bench of five Judges.

The Constitution Bench of the Supreme Court in Dharam Pal v. State of Haryana overruled the decisions in Raj Kishore Prasad (supra), Ranjit Singh (supra) and Kishori Singh (supra) and agreed with the rationale adopted in Kishun Singh (supra). Referring to the role of the Magistrate under Section 190(1)(b) on submission of a Police Report under Section 173(2) of Cr.P.C. vis-à-vis the persons shown in Column 2 of the charge-sheet i.e., not as an accused, the Supreme Court held as under:

"In our view, the Magistrate has a role to play while committing the case to the Court of Session upon taking cognizance on the police report submitted before him under Section 173(2) Cr.P.C. In the event the Magistrate disagrees with the police report, he has two choices. He may act on the basis of a protest petition that may be filed, or he may, while disagreeing with the police report, issue process and summon the accused. Thereafter, if on being satisfied that a case had been made out to proceed against the persons named in column 2 of the report, proceed to try the said persons or if he was satisfied that a case had been made out which was triable by the Court of Session, he may commit the case to the Court of Session to proceed further in the matter."

Accordingly, the Court clarified that the above observation of the Supreme Court still holds good and therefore, a Magistrate can take cognizance even against those persons who are not 'charge-sheeted' for an offence which is exclusively triable by the Court of Sessions.

Case Title: Mama @ Bidyut Prava Khuntia v. State of Orissa

Case No.: CRLMC No. 2817 of 2003

Judgment Dated: 14^th September 2022

Coram: Dr. S. Muralidhar, CJ. & Chittaranjan Dash, J.

Judgment Authored By: Dr. S. Muralidhar, CJ.

Counsel for the Petitioner: Mr. Gourisankar Pani, Advocate

Counsel for the Respondent: Mr. Janmejaya Katikia, Additional Government Advocate

Citation: 2022 LiveLaw (Ori) 141

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