( 1 ) THIS case is before us on a reference made by our learned brother Muktadar J having regard to the importance of the question namely whether the proviso to section 202 of the Criminal Procedure Code imposes an obligation on the Magistrate to examine all the witnesses cited by the complainant before issuing process to the accused.

( 2 ) THIS Criminal Miscellaneous petition was filed by 29 accused for quashing the proceedings in P. R. C. No. 3 of 1979 on the file of Munsif magistrate, Zahirabad.

( 3 ) THE relevant facts are as follows :- On 23-8-1978 there was rioting in the village of Singtham, Zahirabad Taluk, Medak District, in which a person died. A complaint was lodged at Zahirabad Police Station on 24-8-1978 at 8 P. M. implicating the 29 petitioners herein and another.

( 4 ) AFTER registering the case and completing the investigation, the Inspector of Police, Crime Branch C. i. D. Hyderabad filed a chargesheet against the petitioners 11 to 29 alone. The Police did not file a charge-sheet against the petitioners 1 to 10. Apparently the Police thought that there is no case so far as petitioners 1 to 10 are concerned.

( 5 ) ON 17-2-1979, the first respondent-complainant filed a private complaint against all the 29 petitioners for offences under sections 148, 302, 324, 452, and 440 I PC. read with section 149 IPC. The sworn statement of the complainant was recorded on 20-2-1979. The first respondent cited as many as 22 witnesses in his complaint. As the case is one which is exclusively triable by a Court of Session, the learned magistrate decided to hold an enquiry. On 1-3-1979 the statements of witnesses 3 to 6 and 8 mentioned in the list were recorded and the case was adjourned to 8-3-1979. On that day, listed witness No. 7 was examined and as the remaining witnesses were absent, the case was posted to 17-3-1979. On 17-3-1979, the Magistrate passed an order that "the only remaining eye witness was given up by the complainant, hence the enquiry under Sec. 202 Cr P. C. is closed". The case was posted to 20-3-1979 for consideration. On 21-3-1979 the Magistrate took the case on file against all the accused and issued non-bailable warrants to accused 1 to 10 and 27 and summons to the accused 11 to 26, 28 and 29 and registered the case as P. R. C. No. 3 of 1979. It is at this stage the present petition is filed to quash the proceedings.

( 6 ) IN this petition Mr. C. Padmanabha Reddy, the learned Counsel for the petitioners, strenuously contended that having regard to the proviso to Section 202 of the Criminal Procedure Code, the Magistrate erred in issuing process without examining all the witnesses mentioned in the complaint, and that it is not open to the Magistrate to take the case on file after examining only some of the witnesses.

( 7 ) ON the other hand, it is contended by Mr. Shankar Rao Bllolker, the learned Counsel for the 1st respondent-complainant that the proviso to section 202 of the Criminal Procedure Code is intended to restrain the magistrate from refusing to take cognizance of the offences after examining only some of the witnesses and therefore when the Magistrate is taking cognizance of the offences it is enough if direct witnesses are examined and that formal witnesses like the Doctor, the Investigating officer and Panchayatdars need not be examined.

( 8 ) THE short and interesting question that arises for consideration js whether the proviso to Section 202 of the Criminal Procedure Code imposes an obligation on the Magistrate to examine all the witnesses of the complainant before issuing process to the accused. Section 202 cr PC. along with the proviso is as follows :-"202 (1 ). Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him under section 192, may, if he thinks fit postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a polic