JUDGMENT

P. K. MOHANTY, J. — The petitioners call in question the order of cognizance dated 16.3.1998, passed by the learned S.D.J.M., Biramaharajpur in 1 C.C. No.5 of 1996 in this petition under Section 482, Code of Criminal Procedure (hereinafter referred to as “the Code”) and prayer is made for quashing of such order of cognizance.

2. The fact in brief is that opp. party No. 2 lodged a complaint in the Court of learned S.D.J.M., Biramaharajpur as against the petitioners on allegation of having committed of¬fences, punishable under Sections 147, 341, 323, 354, 427, 379, 447, 506/149 of the Indian Penal Code (in short ‘I.P.C.’). The learned Magistrate, by order dated 7.8.1996, recorded the initial statement of the complainant under Section 200 of the Code and since it was found that the offences alleged are triable exclu¬sively by the Court of Session, as required under law, he di¬rected the complainant to produce all the witnesses named in the petition on 26.8.1996, for recording their statements under Section 202 of the Code. On that day, the statement of the hus¬band of the complainant was recorded and the learned Magistrate having found that the complainant had lodged a written report against the accused-petitioners in the local police station, called for a report from the police under Section 210 of the Code. On receipt of the police report, the learned Magistrate called upon the complainant to produce all her witnesses on the next day and on 24.2.1998 two more witnesses were examined and on 4.3.1998 recorded the statements under Section 202 of the Code of another witness produced by the complainant. On 16.3.1998, the learned Magistrate on perusal of the complaint petition and the statements recorded under Sections 200 and 202 of the Code, having found sufficient materials against the accused persons, took cognizance and directed issuance of summons and that order is sought to be questioned in the present petition.

3. The learned counsel for the petitioners submitted that since all the witnesses named in the complaint petition have not been examined nor a memo has been filed to the effect that the complainant has no more witnesses to be examined, the order of cognizance is bad in law and as such liable to be quashed. Sec¬ondly, it is contended that since a report under Section 210, Cr.P.C. was called for, from the police and the report was re¬ceived, the learned Magistrate erred in law in not taking the report into consideration in which event, the cognizance could not have been taken. Thirdly, it is argued that there being no whisper in the order that the learned Magistrate has considered the reports under Section 210 of the Code, the order is vitiated in law and liable to be quashed. The learned counsel has cited certain decisions of this Court in support of his contention, which shall be referred to at the relevant point to time.

4. The learned counsel appearing for opp. party No.2. complainant, however, controverting the submissions made, submit¬ted that the complainant having examined all her witnesses as she thought sufficient, there is no requirement of law that the com¬plainant is bound to produce all the named witnesses in absence of which, the Magistrate cannot take cognizance even if a case is made out on such evidence. It is further submitted that, it is not the requirement of law that once a report under Section 210 of the Code is called for from the local police, the Magistrate is bound to act upon it and cannot take a different view on the basis of materials available with him.

The learned counsel has also referred to certain decisions in support of his contention, which shall be dealt with and discussed at the appropriate time.

5. In order to appreciate the first contention the rele¬vant provision may be noticed and considered.

Section 202 of the Code reads thus :

“202. Postponement of issue of process :

(1) Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cogniz