THE HONOURABLE SRI JUSTICE N.TUKARAMJI CRIMINAL PETITION No. 8026 OF 2024

ORDER

This Criminal Petition is filed under Section 528 of Bharatiya Nagarik Suraksha Sanhita, 2023 (for short ‘BNSS, 2023’) seeking quashment of the proceedings in Crl.M.P.No.144 of 2024 in P.R.C.No.43 of 2022 on the file of the Judicial Magistrate of First Class,Narayanpet against the petitioner.

2. The petitioner is arraigned as accused No.7 in P.R.C.No.43 of 2022.

3. Heard Mr.K. Venumadhav, learned counsel for the petitioner and Mr.Jithender Rao Veeramalla, learned Additional Public Prosecutor appearing for the respondent No.1-State.

4. The respondent No.2/de facto complainant has filed protest petition before the Magistrate with a prayer to take cognizance of the offences punishable under Sections 146, 147, 148, 302 r/w

149 of IPC against the petitioner.

5. Learned counsel for the petitioner would submit that the investigating agency had filed charge sheet deleting the name of the petitioner. Thereafter learned Magistrate by recording sworn statement had passed the impugned order whereby cognizance has been taken against the petitioner beyond its jurisdiction. He further pleaded that in the offences triable by Sessions Judge where the accused are not charge sheeted, only upon considering the evidence in trial, the Sessions Court may take array of accused under Section 319 of CrPC but not by the Magistrate. On this aspect he cited the authority of Hon’ble Supreme Court in Kishori Singh v. State of Bihar – 2006(1) SCC (Cri) 275. Thus prayed for quashment of the impugned order.

6. Learned Additional Public Prosecutor would fairly submit that in the petitioner referred authority a similar situation has been considered by the Hon’ble Supreme Court in Kishori Singh (supra) and the cognizance order passed by the Magistrate therein was set aside.

7. I have perused the materials on record.

8. The facts that the petitioner was shown as accused in the crime but after investigation the police did not choose to charge sheet the petitioner. Upon the protest petition of the respondent No.2/de facto complainant, the impugned order has been passed whereby cognizance has been taken against the petitioner for the offences under Sections 146, 147, 148, 302 R/W 149 IPC and arrayed the petitioner as accused No.7.

9. The Hon’ble Supreme Court in the authority of Kishori Singh (supra) has considered a situation where the magistrate had taken cognizance on protest petition under Section 302 r/w 34, 324 and 448 of IPC and Section 27 of the Indian Arms Act and by reiterating the decisions in Raj Kishore Prasad v. State of Bihar – (1996) 4 SCC 495 and Ranjit Singh v. State of Punjab – (1998) 7 SCC 149 observed in paras 9 and 10 observed as follows:

“9. After going through the provisions of the Code of Criminal Procedure and the aforesaid two judgments and on examining the order dated 10-6-1997 passed by the Magistrate, 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 F.I.R as accused persons, but not charge sheeted In the charge sheet that was filed by the police under Section 173 of Cr.P.C. 10. So far as those persons against whom chargesheet has not been filed, they can be arrayed as "accused persons" In exercise of powers under Section 319, 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 material, comes 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.”

10. In the light of above dictum, as the facts and circumstances of the instant matter are meeting in all fours, it shall be held that the impugned or