NABAKISHORE PANDA Vs. STATE OF ORISSA

JUDGEMENT

(1.) IN this application Under Section 482, of the Code of Criminal Procedure, 1973 (in short, 'the Code'), the accused persons in I.C.C. No. 46 of 2000 of the Court of Judicial Magistrate First Class, Basudevpur, have prayed to quash the order dated 6.4.2000 by which learned J.M.F.C. after taking cognizance of the offences Under Section 448, 323, 506, 307/34, I.P.C. has issued process of appearance of the accused persons.

(2.) LEARNED counsel for the petitioners argued that after institution of the complaint in the Court of S.D.J.M., Bhadrak. learned S.D.J.M. called for a report from the O.I.C., Basudevpur P.S. in accordance with the provision in Section 210 of the Code. Shortly thereafter the Court of J.M.F.C, Basudevpur being established the complaint was transferred to that Court on the ground of territorial jurisdiction. Learned counsel for the petitioners stated that learned J.M.F.C. without waiting for the report from the police, decided to conduct an enquiry Under Section 202 of the Code and in furtherance thereof directed the complainant to produce her witnesses. On 6.4.2000 after examining three witnesses produced by the complainant, learned J.M.F.C. impliedly, concluded the enquiry and passed the impugned order. He thus argued that when the complainant had not declined or refused to examine further witnesses and when the proviso to Sub section (2) of Section 202 of the Code mandates the Magistrate to record the statement of all the witnesses produced by the complainant, therefore in this case the conduct of the learned J.M.F.C. in abruptly closing the enquiry and issuing process is contrary to the provision of law and therefore liable to be quashed.

(3.) IN view of the aforesaid argument and the conceded factual and legal position, at the stage of disposal of the application Under Section 482, Cr. P.C. reference was made to the case of Sangram Keshari Mishra v. Niranjan Senapati and others, (2000) 18 OCR 764, in which the previous decisions of this Court were referred to and ratio was laid down relating to the mandatory nature of the enquiry in accordance with the proviso to Sub section (2) of Section 202 of the Code and also explaining the meaning of the term 'all his witnesses' and answering what is the method of conducting that enquiry when one of the offences complained of is exclusively triable by the Court of Session. At that stage it was seen that below the placitum A in the said O.C.R. note has been given which reads as hereunder :