JUDGMENT : P.K. Tripathy, J. - In this application u/s 482 the Code of Criminal Procedure, 1973 ( in short, 'the Code) Petitioners pray to quash the order of the Subdivisional Judicial Magistrate, Balasore passed on 12.11.1997 in I.C.C. No. 89 of 1996, a certified copy of which has been filed as Annexure-2.. 2. Admittedly, the Petitioners are four out of the five accused persons in I.C.C. No. 89 of 1996. The opposite party No. 1 is the complainant. On tile basis of the said complaint as stated at the bar, inter alia, cognizance of the offence u/s 395 I.P.C. was taken and process was issued against the Petitioners. After that they approached the learned Magistrate to recall the order of cognizance on the ground of absence of a prima facie case and on the assertion that because of the family dispute a false case has been foisted against them. In that context Petitioner relied on the final report submitted in G.R. Case No. 517 of 1994 and documents relating to pendency of a civil suit between the parties. The opposite party No. 1 denied to the aforesaid contention of falsity in the allegation and contested that application. In the process of hearing in the Court below. Petitioners filed certified copy of some depositions in other proceedings to show contradictions relating to the statement in the complaint. Learned Magistrate rejected that contention on the ground that the statement recorded in the inquiry u/s 202 of the Code is to be considered on its face value to find out if a prima facie case is made out. He further held that pendency of the litigations between the parties does not give rise to the unfailing conclusion that the complaint is based on false or concocted allegations. He also held that the statement of the witnesses prima facie makes out a case under Sections 341/395/34, I.P.C. and that order of cognizance is not liable to be recalled. Accordingly, he rejected that application. It is pertinent to note here that at that stage Petitioners did not raise objection relating to non-examination of one of the witnesses, namely, Om karnath Panda, who is one of the six witnesses cited in the complaint and alleging absence of proper enquiry in conformity with the proviso to Sub-section (2) of Section 202 of the Code. 3. It is pertinent to note here that at that stage Petitioners did not raise objection relating to non-examination of one of the witnesses, namely, Om karnath Panda, who is one of the six witnesses cited in the complaint and alleging absence of proper enquiry in conformity with the proviso to Sub-section (2) of Section 202 of the Code. 3. While arguing in this Court, Petitioners have challenged the impugned order and the order of cognizance on the aforesaid grounds of frivolous litigation because of family dispute and order of issue of process being bad due to non-following the mandatory provision in the Proviso to Sub-section (2) of Section 202 of the Code. 4. Though a futile attempt was -made by the Petitioners to persuade this Court to accept their contention that the complaint was filed with false accusation because of family dispute, but on record Petitioners have not been able to satisfy the Court in that respect by any cogent and convincing evidence. Simply because some civil dispute is pending between the parties and the criminal case instituted against the Petitioners by the brother of opposite party No. 1 resulted in submission of Final Report that does not necessarily mean that the present case is also a false one. Accordingly, that contention of the Petitioners stands rejected. 5. Learned Counsel for the Petitioners put much emphasis on the question that the above-named witness was not examined in the inquiry u/s 202 and no memo or declaration was filed in the Court below in declining to examine him and therefore the order of cognizance and the order issuing process be quashed and a direction be issued to the Court below to record the statement of that left-over witness in accordance with the ratio in the case of Basnta Mandai and Ors. v. Sita Bewa and Anr. (2000) 19 OCR 42. Learned Counsel for the opposite. party No. 1 on the other hand argued that in view of the ratio in the case of Akula Behera and Ors. v. Bata Krishna Behera (1996) 2 OCR 223; Brajabandhu Mohapatra and Ors. v. Trinath Rout (1996) 10 OCR 538; and Matikhal Naik v. State of Orissa and Anr. (1995) 8 OCR 516, non-examination of that witness neither vitiates the inquiry nor renders the order of cognizance and issue of process invalid. 6. v. Bata Krishna Behera (1996) 2 OCR 223; Brajabandhu Mohapatra and Ors. v. Trinath Rout (1996) 10 OCR 538; and Matikhal Naik v. State of Orissa and Anr. (1995) 8 OCR 516, non-examination of that witness neither vitiates the inquiry nor renders the order of cognizance and issue of process invalid. 6. A detailed documentation on the ratio in the above cited cases is not necessary in view of the fact that the aforesaid question was not raised by the Petitioners in the Court below while seeking the relief to recall the order of cognizance. Since that is a question to be considered as a matter of mixed question of fact and law and that was not raised in the Court below at appropriate time, therefore, such contention of the Petitioners is not considerable. 7. Be that as it may, even if that contention shall be considered purely on the legal aspect, then also in view of the ratio in the case of Rosy and Anr. v. State of Kerala and Ors. (2000) 18 OCR (SC) 490 the aforesaid objection is found non-sustainable. In that decision it has been held that recording of statement of witnesses in the inquiry is necessary to supply such statements to the accused at the time of commitment of the case to a Court of Session. Therefore, if the Petitioners do not raise that objection at the earliest opportunity, they are debarred to make such an objection at a later stage unless those lapses in following the procedure resulted in miscarriage of justice or a prejudice to the accused persons. In this case no such case of miscarriage of justice or prejudice has been raised or made out by the Petitioners. 8. For the reasons indicated above, this Court finds no reason to interfere with the impugned order by invoking the inherent power. Accordingly, the Criminal Misc. Case stands dismissed. Intimate the Court below. Final Result : Dismissed