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 isinvestigated, 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.
Finding
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).
Orissa High Court therefore concluded that a Judicial Magistrate has the power to take cognizance of an offence essentially and exclusively triable by the Court of Sessions vis-à-vis an accused person who is not 'charge-sheeted'.
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