INDRAJIT MAHANTY, J. CRLMC NO.189 OF 2010 (Decided on 08.10.2010) RABINARAYAN ACHARYA …………. Petitioner. .Vrs. STATE OF ORISSA ………….. Opp.Party. CRIMINAL PROCEDURE CODE, 1973 (ACT NO.2 OF 1974) – SEC.202, 311. For Petitioner - M/s. R.C.Sarangi, L.Pradhan, S.Das, C.Tripathy, P.K.Singh, M.K.Pattanaik, S.S.Mohanty & N.Ray. For Opp.Party - Addl. Government Advocate. I. MAHANTY, J. The present application under Section 482 Cr.P.C. has been filed by the petitioner-Rabinarayan Acharya, who has sought to challenge the order dated 25.11.2009 passed by the learned S.D.J.M., Bhubaneswar in G.R. Case No.240 of 2008, by which order the application filed by the petitioner for recall of witness-Tusar Kanta Mohapatra for further examination during course of enquiry under Section 202 Cr.P.C. has been rejected. 2. Mr. R.C. Sarangi, learned counsel for the petitioner submitted that the learned court below has committed a grave illegality by not permitting the counsel for the petitioner to participate in the proceeding during course of the enquiry under Section- 202 Cr.P.C. He asserted that, there is no law which prevents participation of the complainant in the proceeding and the learned S.D.J.M., Bhubaneswar committed the same mistake as that of his predecessor, by rejecting the petition under Section 311 Cr.P.C. He further asserted that undisputedly an enquiry under Section 202 Cr.P.C. is made by the Magistrate for its own satisfaction, but it does not mean that a Magistrate can ignore the material aspect of the case so as to subsequently come to a conclusion that materials do not satisfy him to issue process. 3. On perusal of the petition to recall the witness-Tusar Kanta Mohapatra, Notary Public, Bhubaneswar, it appears that in the said application, it was pleaded that the learned S.D.J.M. had directed the complainant to deposit the cost for examination of witness-Tusar Kanta Mohapatra under Section 202 Cr.P.C. The said person had been summoned and examined by the Court. It is alleged that, since the complainant was not permitted to intervene and to explain what the questions are ought to have been put to the witness, the same resulted in, the trial court asking questions and accordingly, answers given by the said witness were only recorded. 3.1 Mr. Sarangi placed reliance upon the judgment of this Court in the case of Sk. Siraj v. State of Orissa and others, (1994) 7 OCR 229 and in particular, the observations of the Court in Para-12 thereof as well as a decision of the Hon’ble Madras High Court in the case of H.J.E. Maccarthy v. Lord Shannen, AIR 1928 Madras 135. 4. The learned counsel appearing for the State supported the impugned order dated 25.11.2009 and submitted that the petitioner had filed an earlier application under Section 311 Cr.P.C. seeking the self-same remedy to recall the witness for re-cross- examination and the same had been refused. Accordingly, it is submitted that the subsequent application filed by the petitioner was a renewed attempt by him to recall the same witness. Since the order passed under Section 311 Cr.P.C. by the predecessor of the present S.D.J.M. was not challenged, it had attained its finality and there was no occasion for permitting the self-same prayer which is renewed in a different form. Apart from the above, the learned counsel asserted that, the fact situation that arose for consideration by this Court in the case of Sk. Siraj (Supra) as well as the judgment of the Madras High Court in the case of H.J.E. Maccarthy (Supra) are distinct from the case at hand. 5. On consideration of the submissions noted hereinabove, it is the well settled principle of law that, an “order of cognizance”, means application of mind by the Judge/ Magistrate to the facts constituting an offence for the purpose of initiating a judicial proceeding against the offender and at the stage of taking cognizance, a Magistrate has to simply satisfy himself whether the allegation against the accused, prima facie, makes out a case for trial or not and nothing beyond that. In the case at hand, Tusar Kanta Mohapatra, who was cited as a witness on behalf of the complainant and was summoned and examined by the Magistrate under Section 202 Cr.P.C., no final decision either taking cognizance or not, is yet to be passed. In the case of Sk. Siraj (Supra), this Court held that where the court in exercise of its power under Section-311 Cr.P.C. examines a witness as a “court witness”, even in course of an enquiry under Section-202 Cr.P.C. It is in this context, this Court in Paragraph-9 of the judgment came to hold as follows: “The objection of Section 311 Cr.P.C. is to put the discretion act only from the point of view of the accused and the prosecution but also from the point of view of the orderly society. If a witness called by Court and gives evidence against the complainant, he should be allowed an opportunity to cross-examine.” 5.1 In the present case at hand, Tusar Kanta Mohapatra was cited as a witness by the complainant and duly examined under Section 202 Cr.P.C. by the Magistrate. He was neither summoned under Section-311 Cr.P.C. nor examined as a court witness for considering the complaint. Therefore, this judgment has no bearing on the fact situation that arises for consideration in the present case. 5.2 In the case of H.J.E. Maccarthy (Supra), the Madras High Court held that where the Magistrate after examining the complainant on oath “sent for some records from the police and for some records from a private individual, perused them and came to the conclusion that the counter-petitioner (accused) had acted under a bona fide claim of right and, therefore, no offence was committed by him”. In the present case the issue as to whether the Magistrate has taken cognizance of an offence complained of is not the subject matter of challenge before this court. On the other hand, in the case of Sk. Siraj (Supra), as well as in the case of H.J.E. Maccarthy (Supra), the learned Magistrate having summoned the documents from both the police as well as private individuals, had failed to afford an opportunity to the complainant therein to explain his case and, therefore, the Magistrate was directed to afford an opportunity to the complainant, if in course of such enquiry facts emanate before him opposes the allegation of the complainant, the complainant was given an opportunity to explain or to meet such evidence. 6. On consideration of both the judgments cited by Mr. Sarangi, learned counsel for the petitioner, the principle that emanates therefrom is that if a Court exercises its power under Section-311 Cr.P.C., while conducting enquiry under Section-202 Cr.P.C and calls witness to give evidence or to produce material objects or documents, which 2 in turn, goes against the complaint’s allegation, only then, in such a fact situation alone, opportunity should be given to the complainant to either cross-examine the court witness or to afford an opportunity to explain the evidence. 7. In view of the aforesaid conclusion arrived at on the question of law as noted hereinabove, I do not find any substance in the case put forth on behalf of the petitioner and accordingly, the order dated 25.11.2009 passed by the learned S.D.J.M., Bhubaneswar in G.R. Case No.240 of 2008 is affirmed. Application dismissed. 3