JUDGMENT
N. Biswal, J.
1. This CRLMC arises out of a petition under Section 482 Cr.P.C. filed on behalf of the petitioners where they threw the gauntlet to the order dated 20.2.2004 passed by the J.M.F.C., Purusottampur in G.R.Case No. 110 of 1996-A refusing to reconsider the order of taking cognizance for the offence under Sections 148/324/506/302/149, IPC dated 5.12.1996.
2. In the aforesaid G.R.case police submitted charge sheet against the accused persons other than the petitioners. Learned J.M.F.C., Purusottampur took cognizance of the aforesaid offences against the charge sheeted accused persons and the petitioners whose name did not find place in the charge sheet vide order dated 15.12.96 and issued process against them.
3. Being aggrieved by the said order, the petitioners preferred Criminal Misc. Case No. 5173 of 1997 before this Court which was disposed of by order dated 3.9.2001 with the following observation :
“The matter is remitted back to the trial Court to reconsider the petitioners’ request that when their names do not find place in the charge sheet, no cognizance should have been taken against them, if the petitioners make such request, the trial Court shall reconsider the same keeping in view the decision of the Supreme Court in Kishori Singh and Ors. v. State of Bihar and Anr. (2000) 19 OCR (SC) 647.”
4. Accordingly, the petitioners approached the Court below and filed a petition to reconsider the order of taking cognizance against them. Learned J.M.F.C. again rejected the petition inter alia holding that the case record was not available with him. Being aggrieved with the said order, the petitioners preferred CRLMC No. 910 of 2003 before this Court. In course of hearing since learned counsel for the petitioners submitted that in the meantime the trial against the charge-sheeted accused persons had already been disposed of resulting in their acquittal, and as such the record could be made available to the J.M.F.C., this Court vide order dated 25.7.2003 held as follows :
“After hearing learned counsel for the petitioners and learned counsel for the State without entering into the arena of controversy, I dispose of this case giving liberty to the petitioners to file a fresh petition before the learned Magistrate, who shall dispose of the said petition in consonance with the ratio of the decision in Bhinga’s case (supra).”
5. Accordingly, the petitioners filed a fresh petition before the learned J.M.F.C., Purusottampur to reconsider the order of taking cognizance against them in consonance with the decision in Bhinga’s case.
After hearing learned counsel for the parties, the J.M.F.C. rejected the petition holding that on perusal of the entire case record he found that there was sufficient materials against the accused persons-petitioners for which cognizance for the offence under Sections 148/324/506/302/149 IPC was taken against them vide order dated 5.12.1996. A petition to reconsider the order of taking cognizance filed on behalf of the petitioners earlier was rejected by him on 15.7.2003. Original case record shows that the case has already been disposed of against some of the accused persons by the Court of Session. Since the offences alleged are exclusively triable by Court of Session he lacked jurisdiction to review its own order. He further held that the principle laid down in Bhinga’s case was not applicable to the present one. Accordingly, he rejected the petition vide order dated 20.2.2004.
Being aggrieved by this order the petitioners have preferred the present CRLMC as stated earlier.
6. Learned counsel appearing for the petitioners submitted that Magistrate has no power to take cognizance of any offence triable by the Court of Session against any person who has not been named as an accused in the charge sheet. In support of his submission he relied upon the decision in Kishori Singh and Ors. v. State of Bihar and Anr., reported in (2000) 19 OCR (SC) 646 where the apex Court held as follows :
“x x x x x We have no hesitation to come to the conclusion that the Magistrate could not have issued process against those persons who may have been named in the FIR as accused persons, but not charge sheeted in the charge sheet that was filed by police under Section 173 Cr.P.C.”
Of course in this decision it has further been held :
“So far as those persons against whom charge sheet has not been filed, they can be arrayed as “accused persons” in exercise of powers under Section 319 of Cr.P.C. when some evidence or materials are brought on record in course of trial or they could 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 learned
Sessions Judge to the High Court and the High Court, on examining the materials, conies to the conclusion that sufficient materials exist against them even though the police might not have filed charge sheet, as has been explained in the latter three Judge bench decision.”
Learned Addl. Standing Counsel supported the order passed by the Magistrate.
7. In the case at hand, admittedly the names of the petitioners do not find place in the charge sheet. The offence in question is one which is triable by the Court of Session. This Court also held in the case of Bhinga Rana v. State of Orissa reported in 2002 (I) OLR 155 : (2002) 22 OCR 31 that scope of interference by the cognizance taking Magistrate in a case triable by the Court of Session is limited to the extent that he is to go by the charge sheet. As mentioned earlier this Court in CRLMC No. 910 of 2003 ordered that if the petitioners file a fresh petition, the Magistrate shall dispose of the said petition in consonance with the ratio of the decision in Bhinga’s case (supra). But the Magistrate, without properly going through the said decision held that it was not applicable to the present case, which is absolutely wrong. His finding that he cannot review his own order also suffered from magnificent error, because this Court directed in both the criminal Misc. Cases Nos. 5173 of 1997 and 910 of 2003 to reconsider the order of taking cognizance. The Magistrate concerned should not have defied the direction of this Court in the manner he did.
8. The case was remanded in two occasions to reconsider the order of taking cognizance. The Magistrate did not carry out the said orders. In the meantime as submitted by the learned counsel for the petitioners the main case has been disposed of and the accused persons got acquitted, as there was no evidence against them. So it will not be useful to again remand the case to the J.M.F.C. for reconsideration of the order of taking cognizance. As discussed earlier, admittedly the name of the petitioners do not find place in the charge sheet. The case is one triable by the Court of Session. So as per the decisions cited above cognizance could not have been taken against the petitioners when they were not charge sheeted by the police.
Accordingly, the order of taking cognizance against the petitioners dated 20.2.2004 and the subsequent orders thereto are hereby quashed.
It is made clear that the aforesaid findings would not fetter the powers of the J.M.F.C., Purusottampur to act in accordance with law laid down by the Apex Court in the case of Kishori Singh (supra).
Accordingly the CRLMC is allowed.