- (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. Secondly, it is not open to the committal Court to launch on a process of satisfying itself that a prima facie case has been made out on the merits. The jurisdiction once vested in him under the earlier Code but has been eliminated now under the present Code. Therefore, to hold that he can go into the merits even for a prima facie satisfaction is to frustrate the Parliament's purpose in remoulding S. 207-A(old Code) into its present non discretionary snaps. Expedition was intended by this change and this will be defeated successfully, if interpretatively we hold that a dress rehearsal of a trial before the Magistrate is in order. In our view, the narrow inspection hole through which the committing Magistrate has to look at the case limits him merely to ascertain whether the case, as disclosed by the police report, appears to the Magistrate to show an offence triable solely by the Court of Session. Assuming the facts to be correct as stated in the police report, if the offence is plainly one under Section 201 I.P.C. the Magistrate has simply to commit for trial before the Court of Session. If, by error, a wrong section of the Penal Code is quoted, he may look into that aspect. Shri Mulla submits if the Magistrate's jurisdiction were to be severely truncated like this the prosecution may stick a label mentioning a sessions offence (if we may use that expression for brevity's sake) and the accused will be denied a valuable opportunity to prove his ex facie innocence. There is no merit in this contention. If made-up facts unsupported by any material are reported by the police and a sessions offence is made to appear, it is perfectly open to the Sessions Court under Section 227, Code of Criminal Procedure to discharge the accused. This provision takes care of the-alleged grievance of the accused. On a careful reading of the above Supreme Court's decision, I find that the Supreme Court laid down the proposition that once the name of an accused finds mention in the charge-sheet, the committing Magistrate has no power to discharge him. From the list of the names of the accused persons mentioned in the charge-sheet, none of them can be omitted while the case is committed to the Court of Session. There is nothing in the said decision which would suggest that on a consideration of the material before him, the committing Magistrate has no power to add to the list of the names of the accused persons mentioned in the charge-sheet.;