JUDGMENT
K.P. Mohapatra, J.
1. This is a petition under Section 482 of the Code of Criminal Procedure (Code for short) to quash the impugned order dated 9.2.1984 passed by the learned Chief Judicial Magistrate, Cuttack, taking cognisance as an offence under Sections 376 and 376/34 of the Indian Penal Code (I. P. C for short) against the petitioners.
2. On the basis of an F. I. R. lodged by the husband of the opposite party, G. R. Case No. 2551 of 1982 under Sections 380 and 376/34, I. P. C, was initiated and after investigation, final report was submitted Thereafter, the opposite party filed a complaint petition registered as I. C. C. Case No. 322 of 1983 against 40 persons for having committed offences under Sections 147, 148, 149, 307, 24, 325, 326, 376, 395, 448 and 506 read with Section 34, I. P. C. By the impugned order the learned Chief Judicial Magistrate took cognisance of an offence under Section 376 I. P. C. against the petitioners Murali Naik, Hrushikesha Sahu, Biswanath Sahu and Rama Chandra Patra and under Section 376/34, I.P.C, against Natha Sahu. It appears from the impugned order that before taking cognisance of the offences all the witnesses cited by the opposite party, in support of her case were not examined in accordance with the proviso to Sub-section (2) of Section 202 Cr. P. C. It is also stated by Mr. S.C. Sahu, learned counsel appearing for the petitioners that the witnesses cited by the opposite party in the complaint petition were not examined before cognisance of the offence was taken.
3. Para 7 of the complaint petition discloses that seven witnesses were cited by the opposite party in support of her case. Law has now been well-settled that in cases triable exclusively by the Court of Session the Magistrate has to make an enquiry himself before issue of process and in such enquiry the complainant has to produce all his witnesses who are examined on oath. The issuance of process without examining all the witnesses on behalf of the complainant vitiates the order as being contrary to the provisions contained in the proviso to Sub-section (2) of Section 202, Cr.P.C, and the High Court would be fully justified in interfering with such an order. For the above proposition reference may be made to 47 (1979) CLT 244, Gokulananda Mohanty and others v. Murslidhar Malik and 1985 Crl. Law Journal 1732 Jadu Behera and others v. Dhaneswar Samantray. In the present case as has been already referred to, the learned Chief Judicial Magistrate took cognisance of offence under Sections 376 and 376/34, I. P. C , which is exclusively triable by the Court of Session without calling upon the opposite party to produce all her witnesses and without examining them on oath. Nevertheless, he issued processes against the petitioners after passing the impugned order. Manifestly the impugned order is illegal and contrary to the principles laid down in the aforesaid decisions. It is unfortunate that the learned Chief Judicial Magistrate did not keep himself abreast of the law so elementary. Therefore, the impugned order cannot be supported.
4. In the result, the impugned order dated 9-2-1984 by which the learned Chief Judicial Magistrate. Cuttack, took cognisance of offence under Sections 376 and 376/34, I.P.C., against the petitioners is quashed. He will, however, be free to proceed with the case according to law after compliance with the proviso to Sub-section (2) of Section 202, Cr. P. C.
