JUDGMENT

L. MOHAPATRA, J. — This application under Section 482, Cr. P.C. is directed against the order dated 18.4.2002 passed by the learned S.D.J.M., Kendrapara in I.C.C. No.130 of 2001 taking cognizance of the offences under Sections 294, 323, 341, 384, 394, 506 read with Section 34 of the Penal Code.

2. From the impugned order it appears that after presenta¬tion of the complaint before the Court, initial statement of the complainant was recorded and the learned Magistrate proceeded with the inquiry under Section 202, Cr.P.C. and on the basis of initial statement of the complainant and the statements recorded during inquiry under Section 202, Cr.P.C. cognizance of the offences was taken.

3. Shri Sahoo, the learned counsel appearing for the petitioners challenged the procedure adopted by the learned Magistrate stating that on receipt of a complaint, the learned Magistrate may initially adopt one of the two courses available to him. The learned Magistrate may send the complaint for inves¬tigation by police as envisaged under Section 156(3) of the Code of Criminal Procedure or after recording of initial statement of the complainant, take cognizance of the offences and thereafter proceed with inquiry under Section 202, Cr. P.C. According to Shri Sahoo, the learned Magistrate cannot proceed with an inquiry under Section 202, Cr.P.C. before taking cognizance.

4. In course of hearing of this application, decisions of this Court were cited taking divergent views on the above ques¬tion.

In the case of Nira alias Niranjan Mohanty v. Narayan Pradhan and others reported in 1990 (I) O.L.R. 408 a single Bench of this Court held that taking cognizance of offence against the accused first and then directing an inquiry under Section 202, Cr.P.C. is unknown to law and it is like putting the cart before the horse. This Court further observed that taking cognizance of the of¬fences and directing inquiry simultaneously is irregular and illegal. This decision was followed by another single Judge of this Court in the case of Fakir Singh v. Bijaya Kumar Bagaria reported in 2002 (II) O.L.R. 247. In this case the learned Magis¬trate had taken cognizance of the offence and thereafter conduct¬ed the inquiry under Section 202, Cr.P.C. and the order was quashed by this Court following the decision in the case of Nira alias Niranjan Mohanty (supra).

Further in the case of Dr. R. P. Sharma v. Man Mohan Mathur re¬ported in 1995 Criminal Law Journal 387 a divergent view was taken and it was held as follows :

“The purpose of an inquiry or investigation contemplated under Section 202 of the Code is for the purpose of deciding whether or not there exists sufficient ground for proceeding against the person complained of. Thus while the purpose of taking cognizance under Section 190(1) of the Code is to take note that an offence has been allegedly committed the purpose of enquiry or investigation as contemplated under Section 202 is to decide whether or not there exists sufficient ground for proceed¬ing against the person alleged to have committed the offence. The very purpose for which Sections 190(1) and 202 of the Code exist themselves clearly show that an enquiry or investigation under Section 202 is to follow the order of taking cognizance under Section 190(1) and not the vice-versa.”

A similar view has also been expressed by a single Bench of this Court in the case of Abdul Jahangir and others v. State of Orissa and others reported in 2000 (18) O.C.R. 207 where the Court observed as follows :

“At the stage of taking cognizance of offences on the basis of complaint received, as provided in Section 200 of the Code, the cognizance taking Magistrate is bound to record the statement of the complainant, which is popularly known as initial state¬ment. At that stage, if witnesses are present their statements shall also be recorded. However, complainant and witnesses, if any, need not be examined if the case falls under the categories as provided in Clauses (a) and