IMPORTANT POINT
Where one of the offences alleged in a complaint is triable exclusively by Court of Sessions Magistrate is duty bound to undertake the inquiry as prescribed under Section 202(2) proviso Cr.P.C.

JUDGMENT

P.K. Tripathy, J. - In this application under Sec. 482, of the Code of Criminal Procedure, 1973 (in short, 'the Code'), the accused persons in I.C.C. No. 46 of 2000 of the Court of Judicial Magistrate First Class, Basudevpur, have prayed to quash the order dated 6.4.2000 by which learned J.M.F.C. after taking cognizance of the offences under Sections 448, 323, 506, 307/34. I.P.C. has issued process of appearance of the accused persons.

2. Learned counsel for the petitioners argued that after institution of the complaint in the Court of S.D.J.M., Bhadrak, learned S.D.J.M. called for a report from the O.I.C. Basudeypur P.S. in accordance with the provision in Section 210 of the Code. Shortly thereafter the Court of J.M.F.C., Basudevpur being es-tablish.ed the complaint was transferred to that Court on the ground of territorial jurisdiction. Learned counsel for the petitioners stated that learned J.M.F.C. without waiting for the report from the police, decided to conduct an enquiry under Section 202 of the Code and in furtherance thereof directed the complainant to produce her witnesses. On 6.4.2000 after examining three witnesses produced by the complainant learned J.M.F.C. impliedly concluded the enquiry and passed the impugned order. He thus argued that when the complainant had not declined or refused to examine further witnesses and when the proviso to Sub-sec. (2) of Section 202 of the Code mandates the Magistrate to record the statement of all the witnesses produced by the complainant, therefore in this case the conduct of the learned J.M.F.C. in abruptly closing the enquiry and issuing process is contrary to the provision of law and therefore liable to be quashed.

3. Learned counsel appearing for the complainant/opposite party while not disputing to the aforesaid factual position advanced by the petitioners, argued that the matter be remanded for examination of further witnesses from the side of the complainant inasmuch as the complainant is willing to examine further witnesses. While fairly conceding to the correctness of the contention of the petitioners that the mandate of law in the proviso to Subsec. (2) of Section 202, of the Code obligates the complainant to produce all her witnesses or to give a statement or declaration if she does not want to examine any further witnesses or any particular witness. Learned/counsel for the opposite party however argues that the complaint of non-examination of other witnesses was not at the instance of the complainant and therefore learned J.M.F.C. may be directed to take up the further enquiry.

4. In view of the aforesaid argument and the conceded factual and legal position, at the stage of disposal of the application under Sec. 482, Cr.P.C. reference was made to the case of Sangram Keshari Mishra v. Niraryan Senapati and others1, in which the previous decisions of this Court were referred to and ratio was laid down relating to the mandatory nature of the enquiry in accordance with the proviso to Sub-sec. (2) of Section 202 of the' Code and also explaining the meaning of the term "all his witnesses" and answering what is the method of conducting that enquiry when one of the offences complained of is exclusively triable by the Court of Sessions. At that stage it was seen that below the placitum-A in the said O.C.R. note has been given which reads as hereunder:

"A. CODE OF CRIMINAL PROCEDURE, 1973 - Secs. 200, 202 and 208 - Proviso to Section 203(2) held to be mandatory - Magistrate bound to call upon the complainant to produce all his witnesses and examine on oath - In an offence exclusively triable by Court of Sessions offence being serious and pre-commitment enquiry being disposed with in the new Code statements of witnesses and documents relied by prosecution are required to be furnished to accused to make him aware of materials against him - Hence to enable compliance with Section 208 at the time of commitment, recording of statements of witnesses is necessary. (Paras 8