The Magistrate is not required to follow the proviso to Sub-Section (2) of S.202, Cri. P.C. in all cases. It is only when the Magistrate considers it necessary to postpone the issue of process against the accused after examining the complainant and his witnesses under Section 200, Criminal P.C. that he is required to follow the proviso.

This revision is directed against the order of committal passed by the learned Judicial First Class Magistrate, Pattikonda in P. R. C. No. 6 of 1974 on the file of his court. The petitioner is the sole accused who has been committed to the Court of Session, Kurnool for taking his trial in regard to offences punishable under Sections 148 and 302 read with Section 149, I.P.C. along with the four accused in P. R. C. 5 of 1974 who were also committed to the Court of Session, Kurnool to take their trial for offences punishable under Sections 148 and 302 read with Section 149, I.P.C.

2. The facts which led up to this petition are as follows :

3. Crime No. 70 of 1974 was registered by the S. I. of police, Gonegandla against the petitioner and four others in regard to the death of one Hussainappa and the same was investigated. During the investigation the petitioner pleaded alibi. The Inspector of Police, C. B. C. I. D. investigated into the plea and held the same to be false. Another Inspector of the C. B. C. I. D. again examined the plea of the petitioner and found it to be true. On the basis of the investigation of the second C. B. C. I. D. Inspector, a charge-sheet was filed only against the other four, eliminating the petitioner. The charge-sheet was taken on court's file as P. R. C. 5/74. The respondent herein who gave the first report to the police filed a complaint in the Court of the Judicial First Class Magistrate, Pattikonda against the petitioner alleging that he also participated in the murder of the deceased concerned in P. R. C. 5/74. The complaint was filed on 28-5-1974. A list of 18 witnesses was appended to the complaint. The Magistrate examined the complainant under S.200, Cri. P.C. and after recording his sworn statement on 28-5-1974, took the case on file under Sections 148 and 302 read with Section 149, I.P.C. against the petitioner. Registering the case as P. R. C. 6/74 he posted the case to 12-6-1974 and directed the issuance of a non-bailable warrant against the petitioner. Before the warrant was executed, the petitioner surrendered before the Court Subsequently after hearing the advocates of the respondent-complainant and the petitioner-accused, the learned Magistrate passed an order on 28-9-1974 committing the petitioner to the Court of Session, Kurnooi for being tried along with the four accused who were committed in P. R. C. 5/74. As a against this order of committal, the instant revision is filed contending that the committal is illegal in so far as the learned Magistrate did not follow the procedure laid down in the proviso of Section 202(2), Criminal P.C. (New Code).

4. Relying on the proviso of S.202(2) of the new Code, Sri B. Venkata Rao, the learned counsel for the petitioner strenuously contends that under the new Code it is incumbent on the Magistrate to examine the complainant and his witnesses in cases which are exclusively triable by the Sessions Court.

To appreciate the contention it may be useful to set down the concerned provisions of the new Code to the extent relevant.

"Section 200. Examination of complainant :

A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses and also by the Magistrate :

Provided that : ...............

Section 202. Postponement of issue of Process : (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 police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding :

Provided that no such direction for investigation shall be made :

(a)