The main legal point established in the judgment is the power of a Judicial Magistrate to take cognizance of an offence exclusively triable by the court of sessions and the Magistrate's authority to add offences and accused persons based on evidence collected by the police.

JUDGMENT

Dr. S. Muralidhar, CJ. - The present batch of cases raises an interesting question of law concerning the power of a Judicial Magistrate to take cognizance of an offence essentially and exclusively triable by the court of sessions vis-a-vis an accused person who has not been charge sheeted.

2. The reference to the present Division Bench of two Judges is pursuant to an order dated 9th July 2004 passed by learned Single Judge of this Court in CRLMC No.2817 of 2003 (Mama @ Bidyut Prava Khuntia v. State of Orissa (2004) 29 OCR 329. In the said order, it was noted by the learned Single Judge of this Court that although the earlier judgments of the Supreme Court of India in Raj Kishore Prasad v. 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 had held that when an offence exclusively triable by the Court of Sessions is alleged to have been committed and the matter is investigated, 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, a contrary view was taken by the Supreme Court in M/s. SWIL Ltd. v. State of Delhi AIR 2001 SC 2747 and Rajinder Prasad v. Bashir (2002) 23 OCR (SC) 404 where it was held that the Magistrate has the power under Section 190 Cr PC not only to add offences but also accused persons on the basis of the evidence collected by the police. It is as a result of the conflict of the decisions of the Supreme Court as noted hereinbefore that the reference has been made to this Division Bench.

3. More or less, a similar question arises in each of the other five connected petitions in this batch.

4. In Raj Kishore Prasad v. State of Bihar (1996) 4 SCC 495 which is a by a Bench of two Judges, the question that arose for consideration was as under:

'2. Can a Magistrate undertaking commitment under Section 209 Cr.P.C. of a case triable by a court of session, associate another person as accused, in exercise of the power under Section 319 Cr.P.C., or under any other provision?'

The above question was answered in the negative. In other words, it was held that the Magistrate has no power to add a person as an accused under Section 319 Cr PC when handling a matter under Section 209 Cr PC.

5. Next, in Ranjit Singh v. State of Punjab (1998) 7 SCC 149, the aforementioned view 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 PC, that court can deal with only the accused referred to it in Section 209 Cr PC. The same view has been reiterated in Rajinder Prasad v. Bashir (2001) 8 SCC 522 and Kishori Singh v. State of Bihar (2004) 13 SCC 11 (order dated 27th January 2000).

6. However, a different view was taken earlier in Kishun Singh v. State of Bihar (1993) 2 SCC 16 which was disapproved in Ranjit Singh v. State of Punjab (supra). The view in Ranjit Singh v. State of Punjab (supra) was doubted by the Supreme Court in its order in Dharam Pal v. State of Haryana (2004) 13 SCC 9 and accordingly, the matter was referred to a Constitution Bench of five Judges.

7. The Constitution Bench of the Supreme Court in Dharam Pal v. State of Haryana (2014) 3 SCC 306 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) and agreed with the view in Kishun Singh (supra). Referring to the role of the Magistrate under Section 190 (1) (b) on submission of a Police Report under Section 173 (2) of Cr PC vis-a-vis the persons shown in Column 2 of the charge-sheet i.e., not as an accused, the Supreme Court held as under:

'35. In our view, the Magistrate has a role to play while committing the case to the Court of Session upon taking cognizance on the police report submitted before him under Section 173(2) Cr.P.C. In the event the Magi