JUDGMENT

L. MOHAPATRA, J. — This application under Section 482, Cr.P.C. has been filed challenging the order dated 17.5.2003 passed by the learned S.D.J.M., Jajpur in I.C.C. No.481 of 2002 taking cognizance of offence under Section 302/34 of the Penal Code and directing issuance of N.B.W. against the petitioners.

2. The case as presented by the complainant is that one Rabindra Biswal was assaulted by one Chhota alias Bijaya Mallik in the evening of 17.11.2002 and the said Rabindra Biswal suc¬cumbed to the injuries. The brother of the deceased lodged a written report at Kuakhia Out Post on the basis of which Dharma¬sala P.S. Case No.323 of 2002 was registered for commission of offence under Section 302 of the Penal Code. Investigation was taken up and charge sheet was submitted for commission of offence under Section 302 of the Penal Code against the aforesaid Bijaya Mallik in G.R. case No.1235 of 2002 pending in the Court of the learned S.D.J.M., Jajpur. It is the case of the petitioners that during investigation by police the opposite party No.2 was exam¬ined under Section 161, Cr.P.C. but she did not implicate the present petitioners in any manner to have participated in the alleged offence. However, she filed a complaint on 2.12.2002 before the learned S.D.J.M., Jajpur making allegation against the present petitioners as well as the other accused who has been charge sheeted by the police. On receipt of the complaint, the learned Magistrate recorded the initial statement of the com¬plaint as well as three other witnesses namely, Duryodhan Mallik, Runa Biswal and Saumya Ranjan Biswal under Section 200, Cr.P.C. on 5.4.2003. The offence alleged being triable by the Court of Session, an inquiry was conducted under Section 202, Cr.P.C. and during that inquiry, some more witnesses were examined on behalf of the complainant. On the basis of the initial statement of the complainant and three witnesses as well as the statements of witnesses examined on oath under Section 202, Cr.P.C., the learned Magistrate found a prima facie case for commission of offence under Section 302/34 of the Penal Code and issued N.B.W. against the present petitioners in the impugned order.

3. Shri Panda, the learned counsel appearing for the petitioners submitted that in a case triable by Court of Session, if a complaint is filed, the learned Magistrate has no other option except to enquire under Section 202, Cr.P.C. and during such inquiry not only the complainant but all witnesses named in the complainant are required to be examined. If such a procedure has not been followed by the learned Magistrate, the order taking cognizance becomes bad in law. According to Shri Panda, after receipt of the complaint, the learned Magistrate examined the complainant and three witnesses under Section 200, Cr.P.C. and proceeded for an inquiry under Section 202, Cr.P.C. wherein some more witnesses were examined. It is submitted on behalf of the petitioners that once an inquiry under Section 202, Cr.P.C. is taken up, the complainant and her witnesses are required to be examined even if they had earlier been examined under Section 200, Cr.P.C. and the said procedure having not been followed by the learned Magistrate, the order taking cognizance is liable to be quashed. Reliance was placed by the learned counsel on some decision of this Court which will be dealt with later on.

4. Shri Jena, learned counsel appearing for the opposite party No.2 referring to the impugned order submitted that even in a case triable by the Court of Session, if a complaint is filed, the learned Magistrate no doubt has to conduct an inquiry under Section 202, Cr.P.C. but it is not required for the complainant to examine all the witnesses named in the complaint and the complai¬nant can choose of her own witnesses. Shri Jena further contended that the complainant and three other witnesses having been exam¬ined under Section 200, Cr.P.C., there was no necessity to exam¬ine them again during inquiry u