D. P. MOHAPATRA, J.

( 1 ) THE petitioners have filed this application under S. 482, Criminal Procedure Code assailing the order passed by the learned Judicial Magistrate, First Class, Jaipur Road on 21-6-88 in I. C. C. No. 34 of 1988 taking cognizance of the offences under Ss. 328 and 494, I. P. C. read with S. 4 of the Dowry Prohibition Act and issuing non-bailable warrant against the petitioners for their production in the Court of Session. The short question that arises, for determination is whether the said order is vitiated due to non- compliance with the provision in S. 202 (2) proviso.

( 2 ) THE factual backdrop of the case relevant for the present purpose may be stated thus: the opposite party No. 1 Smt. Lilibala Singh lodged a complaint in the Court of the Judicial Magistrate, First Class, Jaipur Road (J. M. P. C.) on 13/05/1988 against the petitioners and opposite party No. 2 Rashmirekha Jona. Petitioner No. 2 Basanta Manjari Singh is the wife of petitioner No. 3 Gangadhar Singh who is the brother of petitioner No. 1. It was alleged in the complaint petition that opposite party No. 1 had married petitioner No. 1 on 9-5-82 and thereafter they lived together as spouses. At the time of marriage the father of opposite party No. 1 had paid as dowry Rs. 3,000/- in cash and had promised to pay Rs. 2,000/- later. He could not arrange for payment of the said amount on account of which the petitioners used to ill-treat, torture and assault the opposite party No. 1. Petitioners 2 and 3 and threatened to get petitioner No. 1 married elsewhere. On 12-7-85 the petitioner No. 1 brought opposite party No. 2 to his house in his second wife and started living with her. On 21-10-86 the opposite party No. 2 gave birth to a male child. With a view to force opposite party No. 1 to leave the marital home the petitioner had attempted to poison her on 15-12-86, but due to timely intervention of the villagers, some of whom were named as witnesses in the complaint petition, she was saved. Under such compelling circumstances the opposite party No. 1 was forced to leave her martial home and has been living with her perents.

( 3 ) IN the complaint petition Chandi Kar, Anadi Charan Mekap, Golula Kumar Singh, Profulla Kumar Singh and Basanti Kumari Singh were named as witnesses with the statement that in addition to these there are other witnesses also. It appears from the order sheet in the case that the learned Magistrate recorded the initial statement of the opposite party No. 1 on 13-5-1988 and decided to hold enquiry under S. 202, Cr. P. C. He directed the opposite party No. 1 to produce her witnesses. On 6-6-88, 9-6-88 and 20-6-88 the opposite party No. 1 examined in all four witnesses, viz. Prafulla Kumar Singh, Basanti Kumari Singh, Balaram Guru alias Das and Dr. Khageswar Sabu. It was recorded in the order dated 20-6-88: "the complainant files a memo, stating therein that she has no more witness to be examined. In view of the above memo, enquiry under S. 202 is closed. " Thereafter on 21-6-88 the learned Magistrate passed the order taking cognizance of the offences and directing production of the petitioners in the Court of Session, since the offence under S. 328, I. P. C. is triable exclusively by the Court of Session.

( 4 ) THE main ground on which the petitioners challenge the impugned order is that the opposite party No. 1- complainant has not examined in course of the enquiry all the witnesses named in complaint petition as provided under the proviso to sub-sec. (2) of S. 202, Cr. P. C. and hence the cognizance order is vitiated. Shri D. P. Dhal, learned counsel for the petitioners reiterating the above submission relied mainly on the decision of this Court reported in (1989) 2 OCR 665 (Kaliash alias Kelu Jena v. Ramachandra Majhi) in support of the above contention.

( 5 ) SINCE the result of the case turns on the interpretation of the proviso to sub-sec. (2) of S. 202, Cr. P. C. it will be convenient to quote the said provision:"