Ashok Kumar Panda vs State of Orissa

A.K. Samantaray, J.—The Petitioner in this application u/s 482, Code of Criminal Procedure has assailed the order dated 4.2.2002 passed by learned S.D.J.M., Bhanjanagar taking cognizance and directing issue of NBWA for the offence under Sections 376, 493, 417, 109, 506/34, IPC arraying him as an accused in G.R. Case No. 404 of 2001 (after split up converted to G.R. Case No. 404 of 2001 (A) corresponding to Buguda P.S. Case No. 160 of 2001.

The factual scenario which resulted in the initiation of the aforementioned G.R. Case briefly stated runs as under:

The informant Sweta Pradhan lodged a written report on 3.10.2001 alleging therein that about 7 to 8 months back one Rajkumar Senapati forcibly committed sexual intercourse with her and also threatened her with dire consequence if she disclosed the same to anybody. Under the threat she had not disclosed the same and kept mum and taking advantage of this situation Rajkumar Senapati went on maintaining sexual relationship with her. On 5.8.2001 when she was going to take tailoring lesson at village Gangadhar in a trekker, at that time Rajkumar Senapati alongwith Birendra and Bhabagrahi insisted her to go with Rajkumar Senapati and accordingly she went with him to Bhanjanagar. Subsequently, she went with Rajkumar Senapati to various places and ultimately they got married at Puri. When both of them returned back to Jagannathprasad some unknwon persons came in an Ambassador Car and a motor cycle and Rajkumar Senapati went away with them in a motor cycle. Two of those persons came out of the car who were introduced to her by Bhabagrahi as Niranjan Pradhan, the brother-in-law of Rajkumar, and Anr. to be a friend of Rajkumar and all of them threatened the informant. On this FIR lodged by the informant a case was registered and investigation started. After recording of the statements of the witnesses and on completion of the investigation charge-sheet was submitted against said Rajkumar under Sections 493, 376 and 417, IPC by charge-sheet No. 22 dated 2.2.2002, before the S.D.J.M., Bhanjanagar who on 4.2.2002 while taking cognizance of the offence not only decided to proceed against the charge-sheeted accused Rajkumar Senapati but also observed in the impugned order that there were sufficient materials to presume that not only charge-sheeted accused Rajkumar Senapati involved in this case but also all other accused persons named in the FIR as reported and stated by the victim lady namely Birendra Altia, Bhabagrahi Behera, Niranjan Pradhan and Ashok Panda (the present Petitioner, were involved in the case which was registered under Sections 376, 506, 493, 109/34, IPC. He also observed in the said order that he found there were sufficient materials to take cognizance of the said offence and proceeded against those persons including the present Petitioner and accordingly he took cognizance of the said offences and directed issuance of NBWA against them for their production in the Court by 20.3.2002.

Admittedly, this Petitioner though was named in the FIR, he was not charge-sheeted when the police after investigation filed the charge-sheet u/s 173, Code of Criminal Procedure The offence in question i.e., offence u/s 376, IPC is triable by the Court of Session. The short question that comes for consideration is whether it was legally permissible for the learned Magistrate to decide to proceed against this Petitioner for the above mentioned offences when he was not charge-sheeted by the police after investigation although his name found place in the FIR lodged by the informant.

The expression "accused persons" would obviously mean those accused person or persons against whom the police had filed the charge-sheet. Learned Counsel Mr. Manoj Kumar Mishra, appearing for the Petitioner raises the contention that under the scheme of the Code of Criminal Procedure , in a case where the offence is triable solely by the Court of Session, when the police files a charge-sheet and arrays only one person as an accused though many more might have been named in the FIR, the learned Magistrate or the Sessions Judge would have no jurisdiction to array them as accused persons at a stage prior to Section 319, Code of Criminal Procedure , the stage when some evidence or materials are collected in course of trial and even in that view of the matter the order of the Magistrate must be held to be erroneous and this Court should invoke its inherent power to quash the same by interfering with the order of the Magistrate impugned.

Referring to the decision of the Apex Court reported in (2000) 19 OCR (SC) 647 (Kishori Singh and Ors. v. State of Bihar and Anr.) where their Lordships have relied on the decision reported in the case of Raj Kishore Prasad Vs. State of Bihar and another, and the three Judge Bench judgment of the Court in the case of Ranjit Singh Vs. State of Punjab, , learned Counsel for Petitioner submits that the question involved in the present case has been squarely answered by the Apex Court after meticulously examining the provision of the Code of Criminal Procedure and there can be no hesitation to come to the conclusion that the Magistrate could not have issue process of any nature against this Petitioner who though has been named in the FIR but has not been charge-sheeted in the charge-sheet that was filed by the police u/s 173, Code of Criminal Procedure.

Now the law is well settled that so far as this Petitioner and other persons against whom charge-sheet has not been filed, they can be arrayed as accused persons in exercise of powers u/s 319, Code of Criminal Procedure , when some evidence or materials are brought on record in course of trial or they can also be arrayed as "accused persons" only when a reference is made either by the Magistrate while passing an order of commitment or by the Sessions Judge to the High Court and the High Court on examining the materials comes to the conclusion that sufficient materials exist against them even though the police might not have filed charge-sheet.

In that view of the matter, the order impugned of learned S.D.J.M., Bhanjanagar in G.R. Case No. 404 of 2001 (A) taking cognizance of offences under Sections 376, 506, 493, 109/34, IPC and directing issue of NBWA against the Petitioner for his production is wholly indefensible and has to be quashed which I direct.

With the above observation and direction the CRLMC is allowed.