IMPORTANT POINT
Examination of all the witnesses cited in the complaint or whose names are disclosed by the complainant in furtherance of the direction given by the Magistrate in terms of proviso to Section 202(2) is not a condition precedent for taking cognizance and issue of process against the persons named as accused in the complaint.

JUDGMENT

G.S. Singhvi, J. —

1.Leave granted.

2.Whether examination of all witnesses cited in the complaint is sine qua non for taking cognizance by a Magistrate in a case exclusively triable by the Court of Sessions is the question which arises for consideration in this appeal filed against order dated 18.4.2007 passed by the learned Single Judge of Patna High Court in Criminal Miscellaneous Petition No.1778 of 2007 whereby he remitted the case to Chief Judicial Magistrate, Saran with the direction to make further inquiry and pass appropriate order in the light of proviso to Section 202(2) of the Code of Criminal Procedure (Cr.P.C.).

3.The appellant’s son, Ajay Kumar Singh is said to have been killed by respondent Nos.1 to 4 on 1/2.1.1997. The appellant lodged First Information Report on the same day at Police Station, Isuapur. After conducting investigation, the police submitted final form on 3.9.1998 with the finding that they had no clue about the culprits. Thereupon, the appellant filed a protest petition accusing the police of not conducting the investigation properly due to political pressure and prayed that the accused persons be summoned and punished. By an order dated 3.9.2002, the learned Judicial Magistrate accepted the final form submitted by the police but, at the same time, directed that the protest petition be registered as a separate complaint. He also directed the complainant (appellant herein) to produce his witnesses. The appellant examined himself and two out of four witnesses cited in the protest petition-cum-complaint but gave up the remaining two witnesses because he thought that they had been won over by the accused. After considering the statements of the appellant and two witnesses, Chief Judicial Magistrate, Saran passed an order dated 13.12.2006 whereby he took cognizance against respondent Nos.1 to 4 for offence under Section 302 read with Section 120B Indian Penal Code and Section 27 of the Arms Act and directed issue of non bailable warrants against them.

4.The respondents challenged the order of the Chief Judicial Magistrate by filing a petition under Section 482 Cr.P.C. The learned Single Judge accepted their contention that the Chief Judicial Magistrate could not have taken cognizance against them without requiring the appellant to examine all the witnesses and remitted the matter to the concerned court for passing appropriate order after making further inquiry in the light of proviso to Section 202(2) Cr.P.C.

5.Shri Gaurav Agrawal, learned counsel for the appellant argued that proviso to Section 202(2) Cr.P.C. is not mandatory in character and the High Court committed serious error by remitting the matter to the Chief Judicial Magistrate for further inquiry only on the ground that all the witnesses named by the appellant had not been examined. Learned counsel further argued that non-examination of two witnesses cited in the protest petition- cum-complaint did not preclude the Chief Judicial Magistrate from taking cognizance against respondent Nos.1 to 4 because he felt satisfied that a prima facie case was made out against them. In support of his arguments, learned counsel relied upon the judgment of this Court in Rosy v. State of Kerala,1 (2000) 2 SCC 230. Shri Gopal Singh, learned counsel for the respondents argued that proviso to Section 202(2) Cr.P.C. is mandatory and the Chief Judicial Magistrate committed a serious error in taking cognizance against respondent Nos.1 to 4 and issuing non-bailable warrants against them without insisting on the examination of remaining two witnesses named in the complaint. He relied upon the observations made by Thomas, J. in Rosy v. State of Kerala (supra) and the judgment in Birendra K. Singh v. State of Bihar,2 (2000) 8 SCC 498 in support of his submission that proviso to Section 202(2) Cr.P.C. is mandatory.

6.We have considered the respective submissions. By its very nomenclature, Cr.P.C. is a compendium of law relating to criminal procedure. The provisions