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Judicial Magistrate Can Take Cognizance Even Against Persons Not Charge-Sheeted' For Offences Exclusively Triable By Court Of Sessions: Orissa HC

Urvi Gupta ,
  21 September 2022       Share Bookmark

Court :
Hon’ble High Court of Delhi
Brief :

Citation :
CRLMC Nos.2817 of 2003 and batch

Mama @ Bidyut Prava Khuntia Vs State Of Orissa

14 September 2022


Opposite Party: STATE OF ORISSA



Code of Criminal Procedure, 1973

Section 190- Cognizance of offences by Magistrates.—(1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub-section (2), may take cognizance of any offence—

(a) upon receiving a complaint of facts which constitute such offence;

(b) upon a police report of such facts;

(c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.

(2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub-section (1) of such offences as are within his competence to inquire into or try. 

Section 209- Commitment of case to Court of Session when offence is triable exclusively by it.—When ina case instituted on a police report or otherwise, the accused appears or is brought before the Magistrate and it appears to the Magistrate that the offence is triable exclusively by the Court of Session, he shall—

(a) commit, after complying with the provisions of section 207 or section 208, as the case maybe, the case to the Court of Session, and subject to the provisions of this Code relating to bail, remand the accused to custody until such commitment has been made;]

(b) subject to the provisions of this Code relating to bail, remand the accused to custody during, and until the conclusion of, the trial;

(c) send to that Court the record of the case and the documents and articles, if any, which are to be produced in evidence;

(d) notify the Public Prosecutor of the commitment of the case to the Court of Session


The Hon’ble High Court of Orissa was posed with an important question of law which is mentioned below on which the Hon’ble Supreme Court has passed conflicting judgments. This batch of petitions was referred to the Division Bench pursuant to an order dated 9 July 2004 passed by Ld. Single Judge.


Whether a judicial magistrate is empowered to take cognizance of an offence essentially and exclusively triable by court of sessions vis-à-vis an accused person who has not been charge-sheeted.


  • The court analyzed five landmark judgments on this question which were passed by the Hon’ble Supreme Court of India. In three of these judgments namely, Raj Kishore Prasad vs. State of Bihar AIR 1996 SC 1931, Ranjit Singh v. State of Punjab (1998) 7 SCC 149 and Kishori Singh v. State of Bihar (2000)19 OCR (SC) 647, this question was answered in negative. It was held that when a magistrate takes cognizance of an offence triable exclusively by the Court of Sessions while the investigation is ongoing, the magistrate has to go by the persons named in the charge sheet and cannot add or subtract tothat list since he has no jurisdiction in that respect.
  • However, a contrary view was taken by the Supreme Court inM/s. SWIL Ltd. v. State of Delhi AIR 2001 SC 2747 and Rajinder Prasad v. Bashir (2002) 23 OCR (SC) 404wherein the court held that the magistrate u/s 190 of the Code of Criminal Procedure (Cr.P.C) can not only add offences but also accused persons on the basis of evidence collected by the police.
  • In Raj Kishore case (supra) it was held that the magistrate cannot add a person as an accused u/s 319 Cr.P.C. when dealing with a case u/s 209 of the Code. This stance was reiterated in Ranjit Singh v. State of Punjab (1998) 7 SCC 149, Rajinder Prasad v. Bashir (2001) 8 SCC 522 and Kishori Singh v. State of Bihar (2004) 13 SCC 11. 
  • The question was subsequently referred to the Constitution Bench of SC in Dharam Pal v. State of Haryana (2014) 3 SCC 306 which overruled the decisions in Raj Kishore Prasad v. State of Bihar (supra), Ranjit Singh v. State of Punjab (supra) and Kishori Singh v. State of Bihar (supra). 
  • In the present case, the High Court of Orissa agreed with the view in Dharampal Case (Supra).


In consequence of the above discussion, the order under challenge in CRLMC No.2817 of 2003 is hereby affirmed and the interim order is vacated. The CRLMC No.2817 of 2003 is accordingly dismissed.

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Learn the practical aspects of CrPC HERE, CPC HERE, IPC HERE, Evidence Act HERE, Family Laws HERE, DV Act HERE

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