JUDGMENT : P.K. Tripathy, J. - Petitioner is an accused in I.C.C. No. 10 of 1990 of the Court of Subdivisional Judicial Magistrate, Gunupur and he has challenged the order dated 18.7.1990 by which learned S.D.J.M. after undertaking an inquiry under proviso to Sub-section (2) of Section 202 of the Code of Criminal Procedure (in short, 'the Code') took cognizance against the Petitioner for the offence under Sections 120-B, 323, 324, 307/109 I.P.C. and took cognizance against the other accused persons for the offences u/s 120-B, 147, 148,323,324,452,307/149 I.P.C. The other accused persons are not party to this proceeding and there is nothing in the record to disclose that they have challenged the order of cognizance. On the other hand, it appears from the L.C.R. of I.C.C. No. 1 0 of 1990 as well as G.R. Case No. 45 of 1990 that some of them have already appeared in the Court below. 2. Opposite party No. 1, Niranjan Senapati is an Advocate and also by the date of occurrence he was the Chairman of Gunupur Block. As it reveals from the complaint and the case diary of G.R. Case No. 45 of 1990 which was registered on the F.I.R. of opposite party No. 1, that upon certain statements and propaganda made by or at the behest of the complainant assassinating the character of a lady, being the sister of one of the accused persons and also associating this Petitioner in that scandal that gave rise to the conspiracy and assault on the complainant. It may be noted that by the date of occurrence which took place on 30.3.1990 Petitioner was the Sub-Collector of Gunupur Subdivision. 3. Factual allegations are that opposite party No. 1 who was assaulted in the process of taking him to the residential office of the Petitioner was further assaulted at the behest of the Petitioner where from, he was rescued and taken to the hospital. 3. Factual allegations are that opposite party No. 1 who was assaulted in the process of taking him to the residential office of the Petitioner was further assaulted at the behest of the Petitioner where from, he was rescued and taken to the hospital. With initial hesitation and refusal not to treat him without a police requisition, ultimately the doctor on duty in the Government hospital succumbed to the public pressure accompanying the injured and rendered the necessary treatment, but at the same time intimated the fact to the Officer-in-charge of Gunupur Police-station at about 8.20 P.M. on 30.3.1990 which was receive a by the Officer-in-charge at 10 P.M. Opposite Party No. 1 did not lodge F.I.R., so on 31.3.90 the Officer-in-charge suo motu drew up the plain paper F.I.R and undertook investigation, but as it reveals from the G.R. Case record till 14.8.1990 charge-sheet had not been filed. Till 14.8.1990 investigation had not been completed and final form had not been submitted. At the time of hearing of this case, learned Counsel for both the parties could not state if final form has been submitted in the meantime. In the said G.R. Case on the basis of the plain paper F.I.R. name of three accused persons were noted in the formal F.I.R and the word "and others" was noted. The name of the Petitioner was not there in that formal F.I.R. nor in the plain paper F.I.R. On 5.4.90 opposite party No. 1 filed the complaint which was registered as I.C.C. No. 10 of 1990. As it reveals from the complaint O.P. No. 1 has arrayed nine persons as accused and amongst them Petitioner has been described as accused No. 1. In the complaint excluding himself he has given a list often witnesses. After registration of the case the complainant gave his statement on oath and thereafter prayed to call for the seized bloodstained cloth and also to issue a direction to the Doctors for further examination of complainant relating to his injuries and also to send the bloodstained cloth for chemical examination. After calling for report from the Officer-in-charge and perusal of the injury report on 6.4.90 learned S.D.J.M. allowed the aforesaid prayer of the Petitioner. Upon further examination of opposite party No. 1 by another Doctor, injury certificate was ma(Je available to the Court by 7.4.90. After calling for report from the Officer-in-charge and perusal of the injury report on 6.4.90 learned S.D.J.M. allowed the aforesaid prayer of the Petitioner. Upon further examination of opposite party No. 1 by another Doctor, injury certificate was ma(Je available to the Court by 7.4.90. Thereafter, learned S.D.J.M. without further proceeding with the complaint case directed the O.J.C. to submit the final form vide his order dated 19.4.90. In spite of several reminders when final form was not submitted, on 5.7.90 he recalled the order dated 5.4.90 and decided to take up the inquiry. During the course of inquiry Petitioner examined altogether twelve witnesses. P. Ws. 7,8,10, 11 and 12 are the five witnesses who were examined from outside the list of the witnesses mentioned in the complaint. Three of the witnesses named in the list of the witnesses in the complaint namely, Rajendra Prasad Padhi, Voona Rama Rao and one Majhi. S/o. Raghunath Majhi were not examined. The injury certificates, seizure lists, photographs, protest petition of the Petitioner against the publication of the news item in the Indian Express and the correspondences thereof were relied upon as documentary evidence vide Exts. X, Y & Z series. In the order dated 9.7.1990 it was mentioned by the S.D.J.M. that: The complainant does not want to adduce further witnesses for examination u/s 202, Code of Criminal Procedure Hence, the inquiry is closed. On 18.7.1990, as noted earlier, order was passed taking cognizance against the Petitioner as well as the other accused persons named in the complaint. Though in the application u/s 482 of the Code, Petitioner has challenged the order of taking cognizance on various grounds but at the time of hearing, Mr. D.P. Dhal, learned Counsel appearing for the Petitioner pressed the following points into service: (i) When the offence complained of is exclusively triable by the Court of Session, in the inquiry conducted by the S.D.J.M. under the proviso to Sub-section (2) of Section 202 Code of Criminal Procedure, the complainant did not examine himself and all his witnesses named in the complaint petition, therefore, the order of taking cognizance is liable to be quashed. (ii) The S.D.J.M. without properly assessing and evaluating the statement in the record has recorded the finding regarding existence of the prima facie case on the basis of surmises and presumption. (ii) The S.D.J.M. without properly assessing and evaluating the statement in the record has recorded the finding regarding existence of the prima facie case on the basis of surmises and presumption. (iii) The statements in record do not disclose a prima facie case for the alleged' offence which is exclusively triable in the Court of Session and (iv) The materials available in the case record of the complaint and the G.R.case, do not disclose any evidence regarding complicity of the Petitioner with the alleged crime. On the aforesaid grounds, he argued that the cognizance order so far it relates to Petitioner be quashed.. 5. Mr. Jagnnath Pattnaik, learned Counsel appearing for the complainant/opposite party No. 1 argued that in the inquiry conducted in accordance with the proviso to Sub-section (2) of Section 202 of the Code, it is neither essential nor mandatory for the complainant to examine all the witnesses named in the complaint and, therefore, in this case because of non-examination of some such witnesses neither the complainant nor the S.D.J.M has committed any illegality. He also repelled the contention of the Petitioner about non-existence of a prima facie case under Section.307 I.P.C. or non-existance of evidence showing complicity of the Petitioner for committing the alleged offences. He further argued that at the time of appreciating the evidence of the complainant in an inquiry u/s 202, Magistrate is required to assess the materials and evidence produced by the complainant to find out existence of a prima facie case, and therefore, non-perusal by the S.D.J.M. of the inquiry report of the Collector does not render the order of cognizance illegal. He supported the impugned order of cognizance. 6. Learned Counsel appearing for the State also supported the aforesaid contention of opposite of opposite party No. 1 7. Admittedly, in this case, in the inquiry u/s 202, as noted above complainant and three of the witnesses named in the complaint have not been examined. According to the aforesaid first contention of the Petitioner, non-examination of all the witnesses named in the complaint is violative of the enabling provision for conducting such an inquiry and therefore, non-compliance of that provision is sufficient to quash the order of cognizance. In that context, Petitioner relied on ratio in the cases of Gokulananda Mohanty and Others Vs. Muralidhar Mallik Kartikeswar Nayak Vs. Karadi Jagannath and Others Magi Nayak and Others Vs. In that context, Petitioner relied on ratio in the cases of Gokulananda Mohanty and Others Vs. Muralidhar Mallik Kartikeswar Nayak Vs. Karadi Jagannath and Others Magi Nayak and Others Vs. The State of Orissa and Baikunthanath Das Ramesh Samal and Others Vs. Chabi Mandal and Another Kailash alias Kelu Jena and Ors. v. Rama Chandra Majhi: (1989) 2 OCR 665. In advancing the contrary argument, as noted above, O.P. No. 1 relied upon the cases of Charan Rout and Others Vs. Prafulla Kumar Mangaraj Kartikeswar Nayak (supra) Jaladhar Das and Ors. v. Sridhar Das: 1988 (II) OLR 288, Bata v. Anama: 1990 (I) OLR 76 , Shankar Roul Vs. Ramakanta Swain and Another Sukanti Suna v. Sashibhusan Mahakur and Anr.: (1992) 5 OCR 438. In one of the above referred to decisions there has also been reference to the case of Dhaneswar Behera and Ors. v. State of Orissa and Ors.: 1987 (II) OLR 562, a Division Bench decision of this Court: 7. The above noted decisions relied upon by the Petitioner and opposite party No. 1 respectively propound the law in the manner they have argued. Out of these, the case of Gokulananda Mohanty (supra) Ramesh Samal (supra) and Dhaneswar Behera (supra), which have been relied upon by the Petitioner, are the Division Bench decisions of this Court. Similarly, the case of Charan Rout (supra) relied upon by the opposite party No. 1 is also a Division Bench decision of this Court, Rest of the decisions as noted above (relied upon by both the parties) are Single Bench decisions. 8. Before dealing with the above noted argument of the Petitioner and the counter argument of the comptainant-opposite party No. 1 the provision in Sections 200 to 204, 208 and 209 of the Code are to be read together. So far as the present case is concerned, out of the same, the provisions in Sections 200, 202, 208 and 209 are the four relevant provisions which were required to be kept in mind. The said provisions are quoted below: 200. So far as the present case is concerned, out of the same, the provisions in Sections 200, 202, 208 and 209 are the four relevant provisions which were required to be kept in mind. The said provisions are quoted below: 200. Examination of complainant-Magistrate taking cognizance of the offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complaint and the witnesses, and also by the Magistrate: Provided that, when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses (a) if a public servant acting or purporting to act in the discharge of his official duties or a Court has made the complaint; or (b) if the Magistrate makes over the case for inquiry or trial to another Magistrate u/s 192: Provided further that if the Magistrate makes over the case to another Magistrate u/s 192 after examining the complainant and the witnesses, the latter Magistrate need not reexamine them. 202. Postponement of issue of process: (1) Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him u/s 192, may, if he thinks fit, postpone the issue of process against the accused, and either inquiry into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding: Provided that no such direction for investigation shall be made, (a) where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session; or (b) where the complaint has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath u/s 200. (2) in an inquiry under Sub-section (1) the Magistrate may, if he thinks fit, take evidence of witness on oath: Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath. (2) in an inquiry under Sub-section (1) the Magistrate may, if he thinks fit, take evidence of witness on oath: Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath. (3) If an investigation under Sub-section (1) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this Code on an officer-in-charge of a police station except the power to arrest without warrant. 208. Supply of copies of statements and documents to accused in other cases trise by Court of Sessions- Where, in a case instituted otherwise than on a police report, it appears to the Magistrate issuing process u/s 204 that the offence is triable exclusively by the Court of Session, the Magistrate shall without delay furnish to the accused, free of cost, a copy of each of the following: (i) the statement recorded u/s 200 or Section 202, of all persons examined by the Magistrate; (ii) the statement and confessions, if any, recorded u/s 161 or Section 164: (iii) any documents produced before the Magistrate on which the prosecution proposes to rely: Provided that if the Magistrate is satisfied that any such documents is voluminous, he shall instead of furnishing the accused with a copy thereof, direct that he will only be allowed to inspect it either personally or through pleader in Court. 209. Commitment of case to Court of Session when offence is triable. exclusively by it-When in a case instituted on a police report or otherwise the accused appears or is brought before the Magistrate and it appears to the Magistrate that the offence is triable exclusively by the Court of Session, he shall (a) commit. 209. Commitment of case to Court of Session when offence is triable. exclusively by it-When in a case instituted on a police report or otherwise the accused appears or is brought before the Magistrate and it appears to the Magistrate that the offence is triable exclusively by the Court of Session, he shall (a) commit. after complying with the provisions of Section 207 or Section 208 as the case may be, the case to the Court of Session, and subject to the provisions of this Code relating to bail, remand the accused to custody until such commitment had been made; (b) subject to the provisions of this Code relating to bail, remand the accused to custody during, and until the conclusion of, the trial; (c) send to that Court the record of the case and the documents and articles, if any, which, are to be produced in evidence; (d) notify the Public Prosecutor of the commitment of the case to the Court of Session. 10. On a plain reading of the above quoted provisions, it appears that when a complaint is filed u/s 200, a Magistrate taking cognizance of an offence shall examine the complainant and the witnesses present, if any, on oath and record their statements in accordance with the procedure provided in Section 200. Sub-section (1) of Section 202 provided that the cognizance taking Magistrate, if thinks fit, may post pone the issue of process and either himself conduct an enquiry or direct for investigation so as to decide whether or not to there is sufficient ground to proceed, i.e., to proceed with the proceeding by issue of process to the accused. However, if it appears to the Magistrate that the offence complained of is exclusively triable by the Court of Sessions, he shall call upon the complainant to produce all his witnesses and examine them on oath. However, if it appears to the Magistrate that the offence complained of is exclusively triable by the Court of Sessions, he shall call upon the complainant to produce all his witnesses and examine them on oath. That aspect is made mandatory because of the fact that an offence exclusively triable by the Court of Sessions is a serious type of offence prescribing major penalty and the method of pre-commitment enquiry which had been provided in Chapter XVIII of Code of Criminal Procedure, 1898 (i.e. the Old Code) is not provided in he Code (new Code) whereas in accordance with the provision in Section 208 of the Code, statements of witnesses and documents relied upon by the prosecution are required to be furnished to the accused so as to make him aware of the material evidence available against him: In other words, the proviso to Sub-section (2) of Section 202 requires the Magistrate to call upon the complainant to produce all his witnesses to record their statements under oath so that if a prima facie case is made out, at the time of commitment u/s 209, the requirement of law u/s 208 of the Code can be properly complied with by giving all the evidence upon which the complainant relies in support of the allegations against the accused. 11. So far as the above procedure is concerned, virtually, there is no difference of opinion at the bar. The difference of opinion is only on the point as to whether "all his witnesses' means all the witnesses named in the complaint petition or all the witnesses on whose evidence the complainant relies and produces in the Court for recording their statements during the inquiry and whether at that stage, complainant is required to examine him afresh notwithstanding his statement under oath, recorded while receiving his complaint u/s 200 of the Code. To resolve the dispute, a reference is made to the above noted Division Bench decision of this Court. 12. In the case of Gokulanada Mohanty (supra) in a complaint case instituted by the opposite party the cognizance taking Magistrate after examining the complainant u/s 200 of the Code took cognizance of the offence under Sections 395, 323 and 504 I.P.C. and made over the case to another Magistrate for committal inquiry. 12. In the case of Gokulanada Mohanty (supra) in a complaint case instituted by the opposite party the cognizance taking Magistrate after examining the complainant u/s 200 of the Code took cognizance of the offence under Sections 395, 323 and 504 I.P.C. and made over the case to another Magistrate for committal inquiry. On receipt of the case on transfer, the concerned Magistrate issued Non-Bailable Warrant of Arrest against the accused persons and thereafter the accused persons filed an application with the prayer to discharge them on the ground that processes could not have been issued to the accused persons in the absence of an inquiry as contemplated under the proviso to Sub-section (2) of Section 202 of the Code. That contention of the accused persons was rejected by the Magistrate relying upon some observations of this Court in the case of The State Vs. Kastu Behera. Therefore, when the matter was listed before learned Single Judge, it referred the case to a Division Bench and that is how the matter was dealt with by the Division Bench of this Court. The question that was considered by the Division Bench was - "Whether it is obligatory on the part of the learned Magistrate to call upon the complainant to produce all his witnesses and examine them on oath when it appeared to him that the offence complained of rastriable exclusively by the Court of Sessions before he could direct issue of process u/s 204, Code of Criminal Procedure." On examining the provision of law, and a considerate deliberation on the report and recommendations of the Law Commission and various cited authorities, this Court held that In our opinion, when the Magistrate after examining the complainant and his witnesses u/s 200 of the Code of Criminal Procedure is of the view that an offence exclusively triable by the Court of Session appears to have been made out, he is bound to take action under the proviso to Section 202 of the Code and there is no discretion left in him not to hold such enquiry. In the enquiry, which is bound to be undertaken, he has to call upon the complainant to produce all his witnesses and has to examine them on oath. In the enquiry, which is bound to be undertaken, he has to call upon the complainant to produce all his witnesses and has to examine them on oath. In the aforesaid decision, it was not specifically stated as to what is the meaning of the term" produce all his witnesses" i.e., to say whether all the witnesses produced by the complainant or all the witnesses named in the complaint and whether that also includes the complainant. That aspect was also not specifically examined and decided in the two other Division Bench decisions of this Court viz., the cases of Ramesh Samal (supra) and Dhaneswar Behera (supra). 13. In the case of Char an Rout and Ors. (supra) a Division Bench of this Court while abreast of a reference in a similar matter, propounded that 7. The examination under proviso to Sub-section (2) of Section 202, is in addition to the examination u/s 200, In the latter the complainant and the witnesses present are examined. But in the former the requirement is to call upon the complainant to produce all his witnesses. During examination u/s 200 the substance of examination of the complainant and the witnesses present is reduced to writing. There is no such embargo while the witnesses are examined under the proviso to Sub-section (2) of Section 202. The Magistrate is mandated to call upon the complainant to produce all his witnesses and is not required to indicate as to which of the witnesses is to be examined. The expression 'all his witnesses' appearing in the proviso to Sub-section (2) of Se". 202 has to be construed to mean "all witnesses which he chooses to examine". Any other construction would lead to absurd results, and go against spirit of the enactment. Let us take a phypothetical case. Complainant comes to know that one of the named witnesses has been gained over and is likely to give a different version what is reality. It would be hazardous and suicidal for him to produce the concerned person for tendering evidence, knowing fully well the consequences. Let us take a phypothetical case. Complainant comes to know that one of the named witnesses has been gained over and is likely to give a different version what is reality. It would be hazardous and suicidal for him to produce the concerned person for tendering evidence, knowing fully well the consequences. If the complainant chooses to exclude any person named as a witness, he should file a memorandum in the Court clearly indicating that he does not want to examine any particular person as a witness though named in the complaint petition or to the effect that except those tendered for giving evidence, none else would be examined. The provision for examination of complainant's witnesses as required under Sub-section (2) of Section 202 is mandatory. If they are not so examined, the-accused will not be in a position to point out the contradictions when they give evidence in the Court of Session. There is no investigation of a private case by the police and prior statements of witnesses u/s 161 of the Code are not available. That is why the provision for recording statements has been made. 8. The choice being that of the complainant, he may choose not to examine himself. Consequences of such non-examination are to be considered by the Court during trial Effect of nonexamination of a particular witness is a matter which comes for scrutiny during trial. Similar would be the process in case of non-examination of complainant. But there is no statutory mandate for the Magistrate to direct complainant to examine himself. His duty ends by calling upon the complainant to produce all his witnesses. The question whom the complainant would choose to examine and effect of non-examination of any particular witness are not dealt with in the proviso to Sub-section (2) of Section 202. 9. In our view, therefore, the Magistrate has no statutory obligation to call upon the complainant to examine himself as a witness. He is only required to call upon the complainant to produce all his witnesses and examine them on oath. He cannot force the complainant to examine himself. The expression "call upon" means essentially "require", "direct". What is to be directed under the proviso is the production of all the witnesses, and their examination on oath. 14. He is only required to call upon the complainant to produce all his witnesses and examine them on oath. He cannot force the complainant to examine himself. The expression "call upon" means essentially "require", "direct". What is to be directed under the proviso is the production of all the witnesses, and their examination on oath. 14. A clear and decisive finding recorded as above is bound to be followed in this case so far as the first point raised by the Petitioner. In other words, complainant is bound to produce all his witnesses, that means air the witnesses, he chooses to, examine by relying upon them and not all the witnesses named in the complaint. Since the complainant at the stage of filing of the complaint u/s 200, as per the requirement of law, examined himself, therefore, it is left to his choice as to whether he shall further get himself examined as a witness' in the inquiry under the proviso to Sub-section (2) of Section 202 of the Code but the consequence of such non-examination of the complainant shall be considered at the time of trial, if after the enquiry the case proceeds to that stage. In that view of the matter, the argument advanced by the Petitioner is non-sustainable that due to non-examination of three of the witnesses mentioned in the complaint and the complainant himself at the stage of the enquiry, the order of taking cognizance is bad in law. Learned S.D.J.M. in his order dated 9.7.1990 has mentioned that complainant did not want to examine further witnesses in that enquiry. In the above cited Division Bench case, this Court has observed that such a declaration by the complainant is sufficient to satisfy the requirement of law. Complainant's declaration having been so recorded by learned S.D.J.M. virtually there remains no legal lacuna in the impugned enquiry and order for issue of process passed thereafter. In view of the above discussions and findings the first contention of the Petitioner is rejected. 15. Petitioner also challenged the order 0 f cognizance on the grounds of, as already noted, (i) improper assessment of evidence by learned S.D.J.M. and (ii) the whole of the evidence available in the case does not make out a prima facie case for the alleged offences against the Petitioner. 16. 15. Petitioner also challenged the order 0 f cognizance on the grounds of, as already noted, (i) improper assessment of evidence by learned S.D.J.M. and (ii) the whole of the evidence available in the case does not make out a prima facie case for the alleged offences against the Petitioner. 16. It must be remembered that Petitioner has approached this Court invoking the inherent power which is provided in Section 482 of the Code. It is the settled principle of law that inherent power is to be invoked by the High Court when it is necessary to give effect to any order under the Code or to prevent abuse of the process of any Court or to secure the ends of justice. On a perusal of the statements of "witnesses recorded during the enquiry besides the impugned order of cognizance this Court does not find that reasons assigned by learned S.D.J.M. in support of the conclusion regarding existance of a prima facie case is either illegal or perverse. True it is that in the process of discussing the evidence, learned Magistrate at some places travelled beyond the scope and ambit of the enquiry and has passed some observations which were uncalled for and not necessary. A detailed documentation thereof, when the case is still subjudice, is not necessary. Even discarding such extraneous discussion but on perusal of the concerned relevant discussion and finding recorded by learned S.D.J.M. on the basis of statements of witnesses, it is found that a prima facie case is made out for taking cognizance and issue of process in the manner as indicated in the impugned order. Thus, this Court does not find that non-interference with the impugned order will result in failure in giving effect to any order under the Code or will amount to an abuse of process of Court or result in failure of ends of justice. 17. It may further be noted that non-consideration of the report of the Collector which was not relied upon by the complainant is neither illegal nor unjust. If the Petitioner so desires at the relevant stage of the proceeding, he may rely upon the same or if at the time of trial prosecution will rely. Final Result : Dismissed