The proviso to Section 202(2) of the Criminal Procedure Code is mandatory and requires the Magistrate to call upon the Complainant to produce all his witnesses and examine them on oath in cases exclusively triable by the Sessions Court and instituted on the basis of a private complaint.

DHARMADHIKARI, J. :- From the records it appears that Respondent No. 3 Govinda Bhika Mankar had filed a private complaint against the Petitioners and some others under Sections 436, 342, 382, 323, 504, 506 read with Section 34 of Indian Penal Code. It further appears from the record that after the Complainant and 2 other witnesses were examined, the learned Judicial Magistrate, First Class vide his order dated 8th January, 1979 directed issuing of processes against all the accused persons for the aforesaid offences. Ultimately by an order dated 13th July, 1979 the case was committed to the Court of Session against all the accused persons as offence punishable under Section 436 of the Indian Penal Code was exclusively triable by the Sessions Court. When the trial at the Sessions Court was likely to commence. Accused persons filed an application before the Additional Sessions Judge, Nasik that at that stage the prosecution cannot be permitted to examine witnesses who are not examined before the committal Court. It appears that a list of 12 witnesses was submitted by the Complainant before the Committal Court itself. It was contended by the learned Counsel appearing for the Accused that in view of the provisions of Section 202 (2) proviso, it is not now open to the Complainant or the Prosecution to examine witnesses who are not examined at the committal stage. The said application filed by the accused persons was rejected by the learned Additional Sessions Judge vide his order dated 14th November, 1979 and it is the said order which is challenged in this Criminal Application.

2. Shri Agrawal, the learned Counsel appearing for the Accused contended before us that if the provisions of Section 202 (2) proviso are read with Section 208 and other relevant provisions of the Act, it is quite obvious that the said provisions are mandatory. Therefore according to the learned Counsel it will have to be presumed that the process was issued by the learned Judicial Magistrate, First Class after calling upon the Complainant to produce all his witnesses and then examining them on oath. Therefore the witnesses who are examined at the committal stage are the only witnesses which the Complainant wanted to examine and that being the position, it is not now open to the Complainant or the Prosecution to examine any other witnesses. In support of its contention that the provisions of Section 202 (2) proviso are mandatory, Shri Agarwal was relying upon the decision of this court in 1975 Mah LJ (Note) 17 i. e. Spl. Civil Appln. No. 1535 of 1974 and Spl. Civil Appln No. 1536 of 1974 Laxmanlal Govindlal Dalwala v. Juidicial Magistrate, First Class, Khamgaon, decided on 7th Jan. 1975 to which one of us (Mr. Dharmadhikari, J.) was a party. Shri Agarwal was also relying upon other decisions of various High Courts. However in our opinion, it is not necessary to make a detailed reference to the said decisions.

3. On the other hand Shri Kamat, the learned Public Prosecutor as well as Shri Pradhan the learned Counsel appearing for the Respondent-Complainant contended before us that after examining 3 witnesses as the Judicial Magistrate was satisfied that prima facie case was made out, he thought that it was not necessary to examine other witnesses though the Complainant wanted to examine them even at that stage. At no stage it was the case of the Complainant that he wanted to examine only 3 witnesses. On the other hand for properly proving his case the Complainant wants to examine other witnesses cited by him and hence it cannot be said that the Complainant had given up other witnesses at the committal stage itself. It was also contended by the learned Counsel appearing for the Respondent that in view of the decision of the Division Bench of this court, they have no objection if the very order passed by the Judicial Magistrate, First Class, issuing process and committing the case to Sessions Court, is quashed and the matter is remanded back to the Judicia