SUKANTI SUNA Vs. SASHIBHUSAN MAHAKUR

JUDGEMENT

(1.) The question that arises for determination in this case relates to interpretation of S. 202, Sub-Section (2) proviso of the Code of Criminal Procedure. Shortly stated, the questions whether in a case where the offence complained of is triable exclusively by the Court of Session the cognizance order is vitiated ipso facto if all the witnesses named in the complaint petition are not examined by the complainant. The question has engaged the attention of this Court and of other High Courts from time to time. The contention is raised quite often in revision petitions or petitions filed under S. 482, Cr. P.C. by accused persons. Hence the importance of the matter.

(2.) The factual backdrop of the case, shorn of unnecessary details, may be stated thus : On the complaint petition filed by the petitioner against the opposite party No. 1 and some other persons, I.C.C. No. 75 of 1990 was registered in the court of the Sub-Divisional Judicial Magistrate, Bargarh. Therein the petitioner alleged, inter alia, that on 12-10-90 at about 9 a.m. while she had been to her field the accused persons finding her alone forcibly dragged her to a nearby bush; stripped her clothes and raped her despite her protest. Hearing her cry Ratra Suna and Dhanasingh Suna came to the spot and witnessed the occurrence. Seeing them the accused persons fled away.

(3.) The matter was reported to the local police who advised to settle the dispute in the village. The attempt at reconciliation having failed and the police having refused to take action the petitioner filed the complaint petition alleging commission of offences punishable under Ss. 376, 354 read with S. 109, I.P.C.