The Magistrate is not required to examine all the witnesses named in the complaint petition before taking cognizance of an offense triable exclusively by the Court of Sessions.

J. DAS, J.

( 1 ) THIS is a petition under Section 482, Cr. P. C.

( 2 ) IT appears that after examining the witnesses under Section 292, Cr. P. C. Sri G. N. Patra, Judicial Magistrate First Class (R), Cuttack passed the impugned order on 15-7-1987 taking cognizance under Section 436, IPC against the petitioners. In order to quash this order, the present petition under Section 482, Cr. P. C. has been filed.

( 3 ) THE opposite party Anama Behera filed a complaint petition on 24-5-1986. The lower Court directed the complainant to produce his witnesses for enquiry under Section 202 Cr. P. C. In an enquiry under Section 202 Cr. P. C. the complain examined himself and he also examined two witnesses namely, Kailash Behera and Pari Behera, who are named in the complaint petition as witnesses One Jogi Behera, who is also named as eye witness in the complaint petition was not examined. On perusal of the complaint petition and the statements of the witnesses the lower Court was satisfied that there is a prima facie case under Section 436, IPC and hence it took cognizance under Section 436, IPC against the petitioners on 15-7-87. The accused persons appeared on 8-12-87 and they were remanded to jail custody as their bail petition was rejected. Subsequently, they were released on bail on the strength of the order passed by the Sessions Judge. The lower Court took steps to commit the case to the Court of Sessions. It is found that on each date the accused persons remained absent and they were represented through their lawyer. The lower court directed again and again to produce the accused persons, but the accused persons did not appear and they were represented through their advocate and hence there was delay in commitment. On 15-12-88, the lower Court passed an order directing the representing lawyer to produce the accused persons on the next date and it was also made clear that in case of absence of the accused persons their representation would not be allowed. In spite of such a direction, the accused persons did not remain present on 23-12-88 and the representing lawyer again filed a petition for representation of the accused persons. The lower Court gave a time a last chance to produce the accused persons and adjourned the case to 4-1-89. On 4-1-89 also the accused persons did not appear and taking into consideration the past conduct of the accused persons the lower Court passed order to issue N. B. against the accused persons. After this order was passed the petition under Section 482 Cr. P. C. was filed on 1-2-89.

( 4 ) THE learned advocate for the petitioners Mr. Biswal argued that the order dated 15-7-87 taking cognizance under Section 436 IPC is vitiated, as the offense is triable exclusively by the Court of Sessions and the lower Court has not examined all the witnesses named in the complaint petition.

( 5 ) THE proviso to Sub-Section (2) of Section 202 Cr. P. C. obligates the Magistrate to call upon the complaint to produce all his witnesses and examine them on oath, where it appears to the Magistrate that the offense complained of is triable exclusively by the Court of Session. There is a conflict of judicial opinion as regards the proviso to Sub-Section (2) of Section 202, Cr. P. C. One view is that the proviso to Sub-Section (2) has to be read as a proviso to the whole of Section 202 and accordingly the proviso mandatorily enjoins that a Magistrate taking cognizance will inquire into the case and while doing so must call upon the complainant to produce all his witnesses and examine them on oath. This is the majority view, as most of the High Courts have taken this view. The Orissa High Court has also taken this view in various decisions. As this is an established principles of law as per the various decisions of the Orissa High Court, I do not think it necessary to discuss the other view which is the minority view.

( 6 ) ALTHOUGH in various decisions, the Orissa High Court has taken a view that as per proviso to Sub-Secti