JUDGMENT

P. K. MOHANTY, J. — The petitioners call in question the order dated 28.5.1994 of the learned Chief Judicial Magistrate, Baripa¬da in I.C.C. Case No.19 of 1995 (T.C. Case No.211/1995) of the learned Sub-Divisional Judicial Magistrate, Udala taking cogni¬zance of the offences and in issuing process against the peti¬tioners.

2. The short fact bereft of unnecessary details is that one Bira Kishore Jarika, the brother of alleged victim Jambi Jarika lodged a complaint in the Court of the learned Chief Judi¬cial Magistrate, Baripada against the present petitioners, who are the Officer-in-charge and A.S.I. of Sarat P.S. under Sections 452/323/376/34, I.P.C. and the case was registered as I.C.C. Case No.325 of 1993. The learned Chief Judicial Magistrate recorded the initial statement of the complainant on 5.4.1994 and 9.4.1994 under Section 200, Cr.P.C. and took cognizance of offences under Sections 457/376, I.P.C. by order dated 28.5.1994, whereafter he proceeded to examine other witnesses under Section 202 (2) Cr.P.C. since he was of the opinion that the case was triable by the Court of Session. The case was then transferred to the Court of the learned S.D.J.M., Udala, which was again registered as I.C.C. Case No.19 of 1995. Summons were issued for appearance.

3. The main thrust of argument of Sanjit Mohanty, learned Senior Advocate is that the complaint having been lodged on 8.10.1993, initial statement of the complainant having been recorded on 5.4.1994 and 9.4.1994 under Section 200 Cr.P.C., the witnesses were examined on 30.8.1994 under Section 202(2) Cr.P.C. and, therefore, the order dated 28.5.1994 taking cognizance is without jurisdiction and contrary to the provisions of the Cr.P.C. It is contended that the learned Chief Judicial Magistrate could not have taken cognizance of offences under Sections 376 and 457, I.P.C. before the examination of witnesses under Section 202(2), Cr.P.C. before he could decide whether or not sufficient ground for proceeding in the enquiry and or to take cognizance since he was required under law to examine all witnesses on oath before taking cognizance. The second submission of the learned counsel is that the cause of action, if any, having arisen at village Dhoapada under the territorial jurisdic¬tion of the learned S.D.J.M., Udala on 15.11.1992, the learned S.D.J.M. alone was competent to receive complaint under Rule 19 Chapter II of G.R. and C.O. (Criminal) Volume-I. The learned C.J.M. having no territorial jurisdiction to receive the com¬plaint, the acceptance of the complainant taking cognizance thereon is itself illegal, more so, when no valid cause was shown or pleaded for filing the complaint before the C.J.M. and not in the appropriate Court i.e. S.D.J.M., Udala. According to the learned counsel, in view of Section 177, Cr.P.C., every offence is ordinarily to be inquired into and tried by a Court within whose jurisdiction it was committed. Offence alleged to have been committed within the territorial jurisdiction of the S.D.J.M., Udala, the learned C.J.M., Baripada could not have exercised the powers of taking cognizance, causing an enquiry under Section 200 or 202 (2) Cr.P.C. The third submission of the learned counsel is that the learned C.J.M., Baripada failed to appreciate the scope and ambit of Section 190, Cr.P.C., which is subject to the provi¬sions of Chapter XIV with regard to the conditions pre-requisite for initiating of proceeding. The prosecution according to the learned counsel is itself without any basis but only to take vengeance on the accused petitioners since the informant, the brother of the victim, was arrested in connection with Sarat P.S. Case No.35 and 36 of 1992 on the basis of information lodged by some persons of the village. It is submitted that the informant was taken to custody on 17.11.1992 and released in July, 1993, the complaint was lodged on 8.12.1993 even though the occurrence alleged to have taken place on 15.11.1992.

Submission is also made