1. Heard counsel for the petitioner and the State as well as learned counsel appearing on behalf of the Informant.

2. In the instant writ petition the petitioners pray for quashing the order dated 28.8.2006 passed by the learned Chief Judicial Magistrate, Saran at Chapra in u. T. case No.459 of 2008 whereby the learned Magistrate was pleased to take cognizance and summon the accused petitioners to face trial, (b)and further for a declaration that the impugned order dated 28.8.2006 passed by the learned Magistrate, is in violation of the mandatory provisions contained in proviso of sub-section (2) of sec. 202 of the Cr. P. C. as all witnesses mentioned in complaint petition have not been examined by the complainant.

3. The facts of the case in short are as follows; on the statement of respondent no.5, a F. I. R. was lodged bearing Mashrak p. S. Case No.191 of 1995, under sec. 307 of the Indian Penal Code, and under the arms Act, dated 15.8.1995. While the investigation was going on, the informant filed a protest petition on 31.1.1996 alleging therein that investigation is being carried out in a perfunctory manner to protect some of the accused persons. The police after investigation submitted final report on 31.7.1996 in favour of the accused persons. However, case proceeded on protest cum complaint petition, but at a snails pace. The enquiry lingered for nine years. It appears that one Gardanibagh P. S. Case No.339 of 1995 was instituted against the prosecution side in which all the accused persons named in this case are eye witnesses. As the aforesaid case also too proceeded slowly, a bench of this court gave directions for its expeditious disposal. It is the case of the petitioners that when aforesaid direction for expeditious disposal was ordered in Gardanibagh p. S. Case No.339 of 1995, the prosecutrix of the instant case, who had not pursued their protest cum complaint petition for eight years all of a sudden seems to have woke up from their slumber and only then got examined three witnesses in course of enquiry under sec. 202 Cr. P. C. Only two out of four witnesses named in the complaint were examined whereas the third witness examined was not named in complaint.

4. In respect of relief prayed for in Para 1 of writ application, the petitioner has canvassed the following points:

a) Prolonged delay of 9 years in completing the enquiry under sec. 202 Cr. P. C. is in violation of guarantee of speedy trial and offends Article 21 of Constitution. b) It was incumbent upon the complainant to examine all four witnesses named in the complaint petition in view of proviso to sub section (2) of sec. 202 Cr. P. C. According to him the aforesaid proviso is mandatory in nature, and its contravention will render the proceeding and order dated 28.8.2006 taking cognizance and summoning the accused persons to face trial vitiated, being bad in law. In support of his contention learned counsel for the petitioner relies upon an order passed by a learned single Judge in the case of Nagendra Tiwary and Ors V/s. State of Bihar and Ors disposed of by order dated 18.4.2007 passed in cr. Misc. No.1778 of 2007. c) The impugned order has been passed mechanically, without application of judicial mind to the facts of this case.

5. Learned counsel for the informant submits that petitioners are not entitled to any of reliefs prayed for in this writ and issues raised by him is misconceived in law. He submits that admittedly charge has not yet been framed in the instant case. He submits that in a complaint case, a person in effect becomes an accused, only when summons is issued to him to face trial under sec. 204 Cr. P. C. Only thereafter one is required to appear in the proceeding. Prior to that, though one may be arrayed as an accused by a complainant, he or she does not actually become an accused till cognizance of offence is taken and he is summoned to face trial. The offences of graver nature are triable by Court of Session. The legislature as