JUDGMENT P. K. MOHANTY, J. — The petitioners call in question the order dated 28.5.1994 of the learned Chief Judicial Magistrate, Baripa¬da in I.C.C. Case No.19 of 1995 (T.C. Case No.211/1995) of the learned Sub-Divisional Judicial Magistrate, Udala taking cogni¬zance of the offences and in issuing process against the peti¬tioners. 2. The short fact bereft of unnecessary details is that one Bira Kishore Jarika, the brother of alleged victim Jambi Jarika lodged a complaint in the Court of the learned Chief Judi¬cial Magistrate, Baripada against the present petitioners, who are the Officer-in-charge and A.S.I. of Sarat P.S. under Sections 452/323/376/34, I.P.C. and the case was registered as I.C.C. Case No.325 of 1993. The learned Chief Judicial Magistrate recorded the initial statement of the complainant on 5.4.1994 and 9.4.1994 under Section 200, Cr.P.C. and took cognizance of offences under Sections 457/376, I.P.C. by order dated 28.5.1994, whereafter he proceeded to examine other witnesses under Section 202 (2) Cr.P.C. since he was of the opinion that the case was triable by the Court of Session. The case was then transferred to the Court of the learned S.D.J.M., Udala, which was again registered as I.C.C. Case No.19 of 1995. Summons were issued for appearance. 3. The main thrust of argument of Sanjit Mohanty, learned Senior Advocate is that the complaint having been lodged on 8.10.1993, initial statement of the complainant having been recorded on 5.4.1994 and 9.4.1994 under Section 200 Cr.P.C., the witnesses were examined on 30.8.1994 under Section 202(2) Cr.P.C. and, therefore, the order dated 28.5.1994 taking cognizance is without jurisdiction and contrary to the provisions of the Cr.P.C. It is contended that the learned Chief Judicial Magistrate could not have taken cognizance of offences under Sections 376 and 457, I.P.C. before the examination of witnesses under Section 202(2), Cr.P.C. before he could decide whether or not sufficient ground for proceeding in the enquiry and or to take cognizance since he was required under law to examine all witnesses on oath before taking cognizance. The second submission of the learned counsel is that the cause of action, if any, having arisen at village Dhoapada under the territorial jurisdic¬tion of the learned S.D.J.M., Udala on 15.11.1992, the learned S.D.J.M. alone was competent to receive complaint under Rule 19 Chapter II of G.R. and C.O. (Criminal) Volume-I. The learned C.J.M. having no territorial jurisdiction to receive the com¬plaint, the acceptance of the complainant taking cognizance thereon is itself illegal, more so, when no valid cause was shown or pleaded for filing the complaint before the C.J.M. and not in the appropriate Court i.e. S.D.J.M., Udala. According to the learned counsel, in view of Section 177, Cr.P.C., every offence is ordinarily to be inquired into and tried by a Court within whose jurisdiction it was committed. Offence alleged to have been committed within the territorial jurisdiction of the S.D.J.M., Udala, the learned C.J.M., Baripada could not have exercised the powers of taking cognizance, causing an enquiry under Section 200 or 202 (2) Cr.P.C. The third submission of the learned counsel is that the learned C.J.M., Baripada failed to appreciate the scope and ambit of Section 190, Cr.P.C., which is subject to the provi¬sions of Chapter XIV with regard to the conditions pre-requisite for initiating of proceeding. The prosecution according to the learned counsel is itself without any basis but only to take vengeance on the accused petitioners since the informant, the brother of the victim, was arrested in connection with Sarat P.S. Case No.35 and 36 of 1992 on the basis of information lodged by some persons of the village. It is submitted that the informant was taken to custody on 17.11.1992 and released in July, 1993, the complaint was lodged on 8.12.1993 even though the occurrence alleged to have taken place on 15.11.1992. Submission is also made that when the matter on the basis of the writ petition filed by SUCI was enquired into and the High Court having found on enquiry that there is no basis for such a complaint, the complaint filed by the informant is otherwise because of and the outcome of vengeance against the police offi¬cers who had arrested the informant on the basis of the F.I.R. lodged by some other villagers. Let me now consider the first submission of the learned counsel with regard to taking of cognizance against the accused persons under Sections 457/376 of the Indian Penal Code by order dated 28.5.1994 before complying with the proviso to Sub-section (2) of Section 202, Cr.P.C. Section 202 (2) of the Code of Criminal Procedure provides as follows : “202. Postponement for issue of process : (1) xxx xxx xxx (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 Ses¬sion, he shall call upon the complainant to produce all his witnesses and examine them on oath.” The Magistrate taking cognizance of the offence triable exclusively by the Court of Session, must himself make an enquiry into the complaint and call upon the complainant to produce all witnesses and examine them on oath. Clause (a) of the proviso to Sub-section (1) and proviso to Sub-section (2) imposes limita¬tions on the power of the Magistrate in respect of offences exclusively triable by a Court of Session. Clause (a) of the proviso to Sub-section (1) bars a Magistrate from sending such a case to the Police Officer or some other person for investigation and he is to enquire himself. However Sub-section (2) obligates the Magistrate to call upon the complainant to produce all his witnesses and examine them on oath. Therefore, in a case triable by Court of Session to issue a process against the accused with¬out examining all the witnesses of the complainant or requiring the complainant to produce all his witnesses is impermissible. It is mandatory for the Magistrate to examine all witnesses of the complainant before the issue of process on a complaint disclosing offences triable exclusively by the Court of Session. 4. The order-sheet disclosed that the learned Chief Judi¬cial Magistrate in his order dated 28.5.1994 took cognizance of the offences under Section 457/376 of the Indian Penal Code as against both the accused-petitioner. By order of the same date, the Magistrate being of the opinion that this is a case exclu¬sively triable by the Court of Session, directed the complainant to produce all his witnesses on 30.8.1994 as required under proviso to Sub-section (2) of Section 202. The learned Chief Judicial Magistrate thereafter examined the witnesses. By order of the same date, the Magistrate being of the opinion that this is a case exclu¬sively triable by the Court of Session, directed the complainant to produce all his witnesses on 30.8.1994 as required under proviso to Sub-section (2) of Section 202. The learned Chief Judicial Magistrate thereafter examined the witnesses. However, by order dated 30.8.1994, after examination of all the witnesses produced by the complainant, the learned Magistrate called for the Station Diary Entry dated 12.9.1994 for better appreciation of the case. The case was adjourned from time to time for non-receipt of the Station Diary Entry. It appears from the order dated 7.3.1995 that on reports received, the learned Magistrate recorded a note that the Station Diary Book is not available. But, however, in second paragraph of the aforesaid order, the learned Magistrate has recorded as follows : “On perusal of the record, it is found that this case comes under the jurisdiction of S.D.J.M., Udala. Hence, this case is transferred to the file of S.D.J.M., Udala for disposal according to law. Intimate the Advocate of the complainant to appear in the Court of S.D.J.M., Udala on 20.3.1995." The case record was put up before the learned S.D.J.M. on 10.3.1995 on transfer from the Court of the learned C.J.M., Mayurbhanj. The learned S.D.J.M., in his order dated 13.4.1985, observed that the C.J.M., Mayurbhanj, Baripada has already taken cognizance under Section 457/375, I.P.C. against both the accused persons and hence issued summons to the accused persons and directed the complainant to file requisites and when the matter stood thus, by the next date fixed to 31.10.1995, the learned Magistrate received intimation regard¬ing the stay of further proceeding of the case. Interestingly, the learned C.J.M. appears to have enter¬tained the complaint petition recorded initial statement, took cognizance, directed for production of all the witnesses, prima facie, it having appeared to him that the case is exclusively triable by the Court of Session, called upon the complainant to produce all his witnesses, examined the witnesses before issuance of process and even then not being satisfied wanted to verify the Station Diary. But, however, the Station Diary was not available on some plea or other and without taking any further steps to procure the Station Diary abruptly, at this stage observed that this case is within the jurisdiction of the S.D.J.M., Udala and, therefore, transferred the case. But, however, the Station Diary was not available on some plea or other and without taking any further steps to procure the Station Diary abruptly, at this stage observed that this case is within the jurisdiction of the S.D.J.M., Udala and, therefore, transferred the case. If the learned Chief Judicial Magistrate was of the opinion that this is a case within the jurisdiction of the learned S.D.J.M., Udala, there was no reason, why he thought of entertaining the complaint doing the entire exercise of taking initial statement and recording statement under Section 202, Cr.P.C. and then due to non-availability of the Station Dairy, transferred the matter to the S.D.J.M. on the plea that the case is within the jurisdiction of the learned S.D.J.M. I am not able to appreciate why the learned Chief Judi¬cial Magistrate has conducted the case and transferred the matter to the Court of the learned S.D.J.M. 5. However, the fact remains that when the case was trans¬ferred to the learned S.D.J.M., the learned Chief Judicial Magis¬trate had not recorded his satisfaction and the view as to whether process is to be issued to the accused persons and at this stage transferred the matter. The learned S.D.J.M., without properly considering the matter and applying his mind only on the basis that the learned Chief Judicial Magistrate has taken cog¬nizance of the offence mechanically has issued the process to the accused persons. In any event, before issuance of a process in a case triable by the Court of Session, the Magistrate must have to be satisfied that a process is to be issued to the accused per¬sons. In view of the clear mandate of Section 202, Cr.P.C. for the purpose of deciding whether or not, there is sufficient ground for proceeding, the Magistrate is required to examine all the witnesses produced by the complainant and after examining them in Court is to satisfy himself whether there is sufficient ground for proceeding. The learned Chief Judicial Magistrate has neither recorded such a prima facie view nor the learned S.D.J.M. has taken the view that there are sufficient grounds for proceed¬ing in the matter and issue process to the accused persons. It is clearly clarified by the provisions of Section 203, Cr. The learned Chief Judicial Magistrate has neither recorded such a prima facie view nor the learned S.D.J.M. has taken the view that there are sufficient grounds for proceed¬ing in the matter and issue process to the accused persons. It is clearly clarified by the provisions of Section 203, Cr. P.C. that after considering the statements on oath, if any, of the complai¬nant and the witnesses and the result of the enquiry or investi¬gation, if any, under Section 202, Cr.P.C., the Magistrate, is of the opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint giving reasons thereof. The learned Chief Judicial Magistrate while sending the file to the learned S.D.J.M. appears not to have applied his mind in considering this aspect and, therefore, issue of process without recording such finding is not in consonance with the provisions of the Code of Criminal Procedure. 6. It appears that on examination of the complainant and his witnesses produced, the learned C.J.M. considered such state¬ments on 5.4.1994 and found that the evidence is not sufficient to take cognizance of the offences and, therefore, directed the complainant to cause production of the victim lady, his mother and other witnesses, if any, for examination under Section 200 Cr. P.C. The learned Magistrate having come to the conclusion that there is no sufficient evidence to take cognizance ought to have conducted an enquiry under Section 202 Cr.P.C., but asked the complainant to produce his witnesses under Section 200 Cr.P.C. and thereafter examined such witnesses and has taken cognizance by order dated 28.5.1994. When prima facie the offence was under Sections 457 and 376 I.P.C., the learned C.J.M. ought to have conducted the enquiry under Section 202 Cr.P.C. and if satisfied that a case is made out, taken cognizance thereunder. The case thereafter was transferred on 7.3.1995 to the Court of learned J.M.F.C., Udala and the learned Magistrate issued process on 13.4.1995 without considering the materials and the statements of witnesses recorded under Section 202 Cr.P.C. Thus, the procedure followed is contrary to the provisions of proviso to Sub-section (2) of Section 202 Cr.P.C. and, therefore, the order of cognizance dated 28.5.1994 is vi¬tiated in law. The learned C.J.M., on consideration of the com¬plaint and the initial statements recorded, if was satisfied that there are sufficient grounds for proceeding, he could have issued process to the accused, but before that is done, he has to comply with the requirement of Section 200 Cr.P.C. and record the evi¬dence of the complainant or his witnesses or could have postponed the issue of process and directed an enquiry by himself. But, however, the offence under Section 376 I.P.C. being exclusively triable by the Court of Session, he was required to comply with the mandatory provisions of Section 202 (2) Cr.P.C. before issu¬ing process to the accused persons. It is well settled principle of law that in a case exclusively triable by a Court of Session, no cognizance can be taken by a Magistrate without examining all the witnesses for the complainant as required under the proviso to Section 202 (2) Cr.P.C. In any event, an order of cognizance, in cases exclusively triable by the Court of Session could not be made on the basis of the complaint without examining all the witnesses and that is clearly in violation of the proviso to Sub-section (2) of Section 202 Cr.P.C. A reference may be made to the decision of the Apex Court in Kewal Krishan v. Suraj Bhan and another; A.I.R. 1980 S.C. 1780. 7. Sri Sanjit Mohanty, learned Senior Advocate for the petitioners, has brought to the notice of the Court the order dated 11.1.1993 passed in O.J.C. No.9029 of 1992, and contends that on the self-same allegation the aforesaid P.I.L. was filed and this Court directed the District Magistrate, Mayurbhanj to conduct an enquiry and furnish a report The District Magistrate caused an enquiry and furnished a report incorporating the state¬ment of Gurubari Jarika, mother of alleged victim Jobi Tanik, Manja Jarika the sister-in-law and one Pradhan Jarika, the next door neighbour and on consideration of the said report, this Court closed the writ petition being satisfied that there was no truth in the allegations made in the writ petition and thus this being the position, the entire allegation in the subsequent complaint by the brother of the alleged victim, therefore, is male fide with the intention to some how harass the petitioners since the complainant who was involved in the criminal cases was arrested by the petitioners. This according to the learned Senior Counsel, is a special feature of the case which needs consideration. 8. The apex Court in the case of S.N. Palanikar and others v. State of Bihar and others; A.I.R. 2001 S.C. 2960 observed that the approach and consideration while exercising power and juris¬diction by a Magistrate at the time of issuing process are to be in terms of the Sections 200 to 203 under Chapter-IV of the Cr.P.C., having due regard to the position of law explained in various decisions of this Court and whereas while exercising power under Section 482 Cr.P.C., the High Court has to look at the object and the purpose for which such power is conferred on it under the said provision. Exercise of inherent power is available to the High Court to give effect to any order under the Cr. P.C. or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. This being the position, exercise of power under Section 482 Cr.P.C. should be consistent with the scope and ambit of the same in the light of the decisions afore¬mentioned. In appropriate cases, to prevent judicial process from being an instrument of oppression or harassment in the hands of frustrated or vindictive litigants, exercise of inherent power is not only desirable but necessary also, so that the judicial forum of Court may not be allowed to be utilized for any oblique motive. When a person approaches the High Court under Section 482 Cr.P.C. to quash the very issue of process, the High Court on the facts and circumstances of a case has to exercise the powers with circumspection as stated above to really serve the purpose and object for which they are conferred. 9. In Madhavrao Jiwajirao Schindia V. Sambhajirao Chandro¬jitrao Angre; 1992 (1) S.C.C. 629, the apex Court observed that when a prosecution at the initial stage is asked to be quashed, the test to be applied by a Court is as to whether the uncontro¬verted allegations as made prima facie establish the offence. It is also for the Court to take into consideration any special features, which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prose¬cution to continue. It is also for the Court to take into consideration any special features, which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prose¬cution to continue. This is so on the basis that the Court cannot be utilized for any oblique purpose and where in the opinion of the Court chances of an ultimate conviction is bleak and, there¬fore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the Court may, while taking into consideration the special facts of a case also quash the proceed¬ing even though it may be at a preliminary stage. The fact that, a Division Bench of this Court in O.J.C. No.9029 of 1992, by order dated 11.1.1993, on the self-same allegation in a P.I.L., caused an enquiry through the District Magistrate and on being satisfied that there was no truth in the allegation of rape by the present petitioners is a mitigating circumstance and a special feature of the case for consideration in an application under Section 482 Cr.P.C. 10. The next submission of the learned Senior Counsel is that the C.J.M., Baripada was not empowered to receive the com¬plaint as the alleged cause of action arose on 15.11.1992 at village Dhoapada under the territorial jurisdiction of the S.D.J.M., Udala since the S.D.J.M., Udala is alone competent to receive the complaint under Rule-19 of Chapter-II of the G.R.C.O. (Criminal) Vol-I, read with Section 177 of the Cr.P.C. provides that every offence shall ordinarily be enquired into and tried by a competent Court within whose local jurisdiction it was commit¬ted. The general letter of 1974 issued by the High Court under Section 12(3) Cr.P.C. contemplates that at stations where a Sub-Divisional Judicial Magistrate is available, he alone shall receive the complaint and police report and to deal with such matters according to law. The learned C.J.M. in a normal case, therefore, is not authorized to take cognizance unless the com¬plainant shows any special case as to why he had not approached the S.D.J.M. having local jurisdiction. The learned C.J.M. in a normal case, therefore, is not authorized to take cognizance unless the com¬plainant shows any special case as to why he had not approached the S.D.J.M. having local jurisdiction. But it appears that the learned C.J.M. has not considered the same while entertaining the complaint, but at the conclusion of enquiry under Section 202 Cr.P.C., he ultimately has transferred the case to the Court at Udala on the ground that the Magistrate at Udala has jurisdiction to deal with the case, as herein before discussed. In any view of the matter, in the mitigating circumstances of the case, continuance of the criminal proceedings against the petitioners shall not be in the interest of and in furtherance of justice and therefore should be quashed. Accordingly, the crimi¬nal proceedings against the petitioners are quashed. The Criminal Misc. Case is allowed. Crl. Misc. Case allowed.