D. P. MOHAPATRA, J.

( 1 ) THE question that arises for determination in this case relates to interpretation of S. 202, Sub-Section (2) proviso of the Code of Criminal Procedure. Shortly stated, the questions whether in a case where the offence complained of is triable exclusively by the Court of Session the cognizance order is vitiated ipso facto if all the witnesses named in the complaint petition are not examined by the complainant. The question has engaged the attention of this Court and of other High Courts from time to time. The contention is raised quite often in revision petitions or petitions filed under S. 482, Cr. P. C. by accused persons. Hence the importance of the matter.

( 2 ) THE factual backdrop of the case, shorn of unnecessary details, may be stated thus : on the complaint petition filed by the petitioner against the opposite party No. 1 and some other persons, I. C. C. No. 75 of 1990 was registered in the court of the Sub-Divisional Judicial Magistrate, Bargarh. Therein the petitioner alleged, inter alia, that on 12-10-90 at about 9 a. m. while she had been to her field the accused persons finding her alone forcibly dragged her to a nearby bush; stripped her clothes and raped her despite her protest. Hearing her cry Ratra Suna and Dhanasingh Suna came to the spot and witnessed the occurrence. Seeing them the accused persons fled away.

( 3 ) THE matter was reported to the local police who advised to settle the dispute in the village. The attempt at reconciliation having failed and the police having refused to take action the petitioner filed the complaint petition alleging commission of offences punishable under Ss. 376, 354 read with S. 109, I. P. C.

( 4 ) IN the complaint petition the petitioner named four witnesses, viz. Ratra Suna, Dhanasingh Suna, Okila Suna and Chudamani Mahakur. Since the case was exclusively triable by the court of session the learned Magistrate initiated an enquiry under S. 202, Cr. P. C. and directed the petitioner to produce all her witnesses for examination. The petitioner examined herself, her husband and three out of the four witnesses named in the complaint petition. Chudamani Mahakur who was named as a witness in the complaint petition was not examined in the case. A memorandum was filed by the petitioner on 9-1-91 stating therein that she did not intend to examine any other witness.

( 5 ) THE learned Magistrate considering the material on record took cognizance of the offence under S. 376, I. P. C. and issued process against opposite party No. 1 and dismissed the complaint against some other accused persons (accused Nos. 2 to 8) by the order dated 1-2-91. Against the said cognizance order the opposite party No. 1 preferred Criminal Revision No. 15 of 1991 which was disposed of by the learned Addl. Sessions Judge, Bargarh by order dated 30-11-91. Therein the cognizance order was quashed solely on the ground that all the witnesses named in the complaint petition had not been examined by the petitioner. The said order is assailed in the present proceeding.

( 6 ) SECTION 200, Cr. P. C. which provides for examination of complainant lays down that a Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses and also by the Magistrate. The proviso lays down the circumstances in which the Magistrate need not examine the complainant and the witnesses. Sub-Section (1) of S. 202 vests discretion in the Magistrate, if he thinks fit, to postpone the issue of process against the accused and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person, as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding. The proviso to the said Sub-Section lays down, inter alia, that no such direction for