The examination of all witnesses named in the complaint petition before taking cognizance is not mandatory, and non-observance of the procedure may not vitiate further proceedings in all cases.

S.K.Chattopadhyaya, J.

1. The order taking cognizance dated 11 -8-1999/12-8-1999 of an offence under Sections 395 and 148 of the Indian Penal Code read with Sec. 27 of the Arms Act is under challenge in this application.

2. Shorn of unnecessary details, the relevant fact, relevant for the purpose of the application, is that the Opposite Party No. 2 filed a complainont case in the Court of the Chief Judicial Magistrate, Gopalganj being numbered as Complaint Case No. 595/1999 under the aforesaid sections. Allegations were made that the petitioners along with other accused persons surrounded the Kirana shop of the complaint and were armed with various weapons. The Petitioner No. 2 on pistol point asked the complainant to part with all the money and threatened him and the cash amount of Rs. 5000.00 and goods worth Rs. 40,000.00 were taken away by the miscreants. It is further alleged that out of the accused persons the Petitioner Nos. 1 and 2 were apprehended on the spot and were handed over to the police. However, the other accused persons fled away firing in the air. Photo copy of the complaint petition is annexed as Annexure-4.

3. The learned Magistrate after examining the complainant on oath and his witnesses took cognizance of the offence as aforesaid.

4. According to the petitioners this complaint case is nothing but a counter blast of the First Information Report lodged by Amirka Thakur (Petitioner No. 1) against the Opposite Party and other accused persons giving rise Mohammadpur PS Case No. 30 of 1999, in which the police after investigation filed charge-sheet against the Opposite Party No. 2 and other accused. Another case, according to the petitioners, was filed by the Petitioner No. 2 namely, Mohammadpur PS Case No. 5 of 1998 under Secs. 380 and 511 of the Penal Code against one Birnedra Rai, full brother of Opposite Party No. 2. These two First Information Reports are annexed with this application. A grievance has been made that the learned Magistrate without appreciating these facts has taken cognizance of the offence and issued summons to the petitioners.

5. Though on persual of the statements made in the instant application nowhere it appears that the petitioners have taken a plea regarding violation of proviso (2) of Sec. 202 of the Code of Criminal Procedure, but the learned Counsel Mr. Ashis Anshu has raised the point that where the allegations made out a case which is exclusively triable by the Court of Sessions the learned Magistrate must examine all the witnesses named in the complaint petitioner before taking cognizance and issuing process or otherwise his order will be bad. According to him, this proviso is mandatory in nature and has not been complied with and, therefore, the order taking cognizance must be set aside. In support of his contention he hads relied on the decision in the case of 1980 BUR 174, Jai Ram R. Ranjan Gud and Ors. V/s. State of Bihar and Anr. -- (Moideenkutty Haji and Ors. V/s. Kunhikoya and Ors.).

6. Mr. Tiwari, learned APP countering the submission of Mr. Anshu submitted that in view of subsequent decision of this Court proviso (2) of Sec. 202 of the Code of Criminal Procedure is not mandatory and non-compliance of the same will not vitiate the order taking cognizance.

7. As noted above, nowhere the petitioners on the application have raised any ground for setting aside the order taking cognizance on the ground of violation of this proviso. They only point raised in the application is that the learned Magistrate without appreciating the facts that the case is nothing but a counterblast has taken cognizance. However, as a legal question has been cropped up I may examine the same.

8. Sec. 202 of the Code of Criminal Procedure deals with the postponement of issue of process. Sub-sec. (2) of Sec. 202 of the Code contemplates that "in an inquiry under Sub-sec. (1), the Magistrate may, if he thinks fit, take evidence of witnesses on oath:

Provided that if it appears to the Magistr