L. Mohapatra, J.
1. This application under Section 482, Cr.P.C. has been filed challenging the order dated 11.5.95 passed by the learned S.D.J.M., Jajpur, in G. R. Case No. 548 of 1994 recalling the earlier order dated 22.43.1995 taking cognizance of offence under Section 302 read with other offences of the Penal Code so far as the present opposite party is concerned.
2. It appears from the record that an F.I.R. was lodged by one Kalandi Sethi before the I.I.C, Jajpur police station on 13.6.1994 stating that at about 8 0’clock some accused persons named therein assaulted one Ananta Sethi who succumbed to the injuries due to such assault. On receipt of the F.I.R. Jajpur P.S. Case No. 130/94 was registered for the offences alleged to be committed under Section 147/148/302/325/326/338/307/149 of the Penal Code. Investigation was taken up and on conclusion of investigation charge-sheet was submitted against some accused persons named in the F.I.R. So far as the present opposite party is concerned, the I.O. did not submit any charge sheet Learned S.D.J.M. on perusal of the case diary took cognizance on 22.3.1995 for the offences stated above against the present opposite party also who had not been charge sheeted. Challenging the said order the opposite party approached this Court in Crl. Misc. Case No. 971 of 1995 and this Court while disposing of the said application directed the learned Magistrate to reconsider the order taking cognizance keeping in view the guidelines indicated by the Apex Court in the case of K.M. Mathew v. State of Kerala, (1992) 5 OCR 66. Learned Magistrate in the impugned order on reconsideration of all the materials available on record recalled the earlier order taking cognizance so far as the present opposite party is concerned. The said order is challenged by the State Government in this application.
3. Learned counsel for the State submits that in the F.I.R specific allegations has been made by the informant ;that the opposite party assaulted the deceased on the head by means of a sword and also instigated other accused persons to kill the deceased. The informant himself during his examination under Section 161, Cr.P.C. did not support the same and he did not even whisper single word about any assault given by the opposite party or any instigation at the instance of the opposite party. Though learned Addl Standing Counsel fairly concedes the fact he has placed reliance on the statement of three witnesses examined during investigation. Referring to the statements of the aforesaid three witnesses, namely Balaram Jena, Puma Chandra Sethi and Tauli Sethi, it is submitted by the learned counsel for the State that prima facie materials are available at least to indicate that the opposite party instigated other accused person to assault and kill the deceased. In view of such materials being available in the case diary there was no illegality in the order dated 22.3.95 passed by the learned Magistrate taking cognizance so far as the present opposite party is concerned and there was no reason for him to recall the said order.
Shri Nayak, learned counsel for the opposite party, on the other hand, submitted that in a case triable by Court of Session the Magistrate has no jurisdiction to take cognizance of offence relating to those persons who are not charge-sheeted. According to Sri Nayak at the stage of taking cognizance in a case triable by Court of Session the Magistrate functions as a post office and only the stage where under law process can be issued against those persons who have not been charge-sheeted is the stage under Section 319, Cr.P.C. He further submitted that the informant himself have not supported the case of the prosecution so far as the opposite party is concerned and one responsible Government Officer examined during investigation having specifically stated that the opposite party was with him at the time of occurrence at a different place, there is no reason to set aside the order.
4. From the F.I.R. it appears that a specific allegation has been made against the opposite party stating that he assaulted the deceased on his head by means of sword. He also alleged in the F.I.R. that the opposite party instigated other accused persons to assault and kill the deceased. Though such allegations are available in the F.I.R. the informant himself in the statement recorded under Section 161, Cr.P.C. has not whispered about the same. The only material available before the Court is the statement of three witnesses as aforesaid where they have stated that the opposite party instigated other accused persons to assault the deceased. It also appears from the case diary that one Choudhury Gour Sundar Das, working as A.D.M., Jajpur stated during his examination that the opposite party was discussing with him in the morning hour on the alleged date of occurrence and he was also present with the A.D.M. at 10.A.M. and remained with him for about 45 minutes.
On consideration of the above contradictory materials available in the case diary the I.O. did not think it proper to submit charge sheet so far as the opposite party is concerned. Taking all the factors into consideration also the learned Magistrate recalled his order dated 22.3.1995.
5. So far as the jurisdiction of the Magistrate with regard to taking cognizance against the non-chargesheeted persons in cases triable by Court of Session is concerned, reference may be made to a decision of this Court in the case of Bhinga Rana v. State of Orissa (2002) 22 OCR and 2002 (I) OLR 155 page 31. This Court taking into consideration the earlier decisions of the apex Court on the print observed that in a case triable by Court of Session, the role of committing Magistrate is that of the post office to commit the case on the basis of charge-sheet and he has no scope to add to the list of accused persons. Only in cases triable by Magistrate it is open for the Magistrate to add accused persons even if they are not charge-sheeted. Since this decision is based on the earlier decision of the apex Court there cannot be any dispute about the said proposition of law that in cases triable by Court of Session the Magistrate has no jurisdiction to add accused persons who have not been charge-sheeted.
6. Accordingly, I do not find any illegality in the impugned order recalling earlier order dated 22.3.1995 taking cognizance of offence. It is submitted by the learned, counsel for the State that the case has also been committed to the Court of Session and is ready for trial. In the event materials are available indicating involvement of present opposite party in commission of offence, recourse to Section 319, Cr.P.C. can be taken for issuing process against those accused persons who have not been charge-sheeted.
Crl. Revision is disposed of accordingly.