The Magistrate's duty to examine witnesses under section 202(2) of the Code of Criminal Procedure is satisfied by calling upon the complainant to produce all his witnesses and examining those who are produced. Substantial compliance with this requirement is sufficient, and the failure to examine all the witnesses named in the complaint does not necessarily invalidate the order taking cognizance.

P. S. Sahay, J.

1. This application is directed against the order of the learned Magistrate dated 9.3.1977 by which he has taken cognizance against the petitioners under sections 147, 148, 323, 324, 379 and 436 of the Indian Penal code.

2. On 10.11.1976 opposite party no.1 lodged a petition of complaint alleging that on 8.11.1976 at 10 p. m. the petitioners after having formed an unlawful assembly came to his house duly armed with bhala, garasa and lathi. It was also his case that at the instance of petitioner Ramaji Tiwari (petitioner no.7), Bhup Narain Tiwari (petitioner no.6) set fire to his house, and on his protest he was assaulted by means of pharsa by petitioner jamuna Tiwari and others. In the petition of complaint 6 persons were named as witnesses. The learned Magistrate examined the complainant on solemn affirmation, and out of the 6 witnesses he examined 4 and 2 witnesses, namely, bechan Bharihar and the Doctor who had examined the injuries of opposite-party no.1 were not produced. The learned Magistrate by his order dated 9.3.1977 took cognizance against the petitioners and summoned them for trial. Being aggrieved by the aforesaid order, the petitioners have moved this court for quashing of the cognizance.

3. Learned counsel appearing on behalf of the petitioner has contended that the petitioners have been summoned under saction 436 of the Penal Code which is triable exclusively by the Court of Session, and all the witnesses named in the petition of complaint have not been examined, and, therefore, the order of the learned Magistrate is bad in law, and fit to be set aside. In support of his contention, reliance has been placed on a Bench decision of the Calcutta High court in Kamal Krishna V/s. The State, (1977 Cr LJ 1492) Mr. M. N. Jha learned counsel appearing on behalf of opposite party no.1, has contended that under the law a duty is cast upon the Magistrate to direct the complainant to produce his witnesses and, even if some witnesses are not produced, that will not vitiate the order of the learned Magistrate. It has also been submitted that opportunity was given to the complainant to produce his witnesses by the Magistrate and, therefore, the order of the Magistrate should not be disturbed. Similar stand has also been taken on behalf of the State.

4. In order to appreciate the point, it would be better to quote sub-section (2) of section 202 of the Code of Criminal Procedure, 1973, which reads as follows :

" (2) In an inquiry under sub section (1), the Magistrate may, if he thinks fit, take evidence of witnesses on oath : "provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath. "

Therefore, reading the aforesaid provision, the only requirement of law is that the Magistrate has to call upon the complainant to produce all his witnesses and examine them on oath, if so produced. If the complainant fails to produce some of his witnesss, as in the instant case, in my opinion, that will not vitiate the order of the learned Magistrate. I have gone through the order-sheet, and from the orders dated 10.11.1976 and 13.11.1976 it appears that opportunity was given to the complainant to bring his witnesses, and, therefore, it is absolutely clear that the Magistrate had called upon the complainant to produce his witnesses. Thus, in my opinion, there is substantial compliance of the law, and even if the two witnesses who are named in the petition of complaint have not been examined, that will not make the order taking cognizance against the petitioners bad in law.

5 In the case of Kamal Krishna De, (1977 Crlj 1492) a petition of complaint was filed under various sections, including section 307 of the Penal Code, and 9 persons, were named as witnesses in the petition of complaint. The Magistrate examined the complainant on solemn affirmation and examined 3 witn