This is an application filed under section 482 of the Code of Criminal Procedure 1973 (in short 'the Code'). It has come up for admission.

2. This application has been filed for quashing the order dated 28.11.2002 passed by the learned Sub Divisional Judicial Magistrate. Dalsingsarai by which he took cognizance of the offence under section 302 of the Indian Penal Code on the basis of a belated protest petition filed by the opposite party no. 2 and also ordered for issue of summons.

3. It appears that opposite party no. 2 (complainant) had lodged a written report on 1.11.1994 with Ujjiarpur police station on the basis of which Ujjiarpur P.S. Case No. 122 of 1994 dated 1.11.1994 was registered under section 328 of the Indian Penal Code and later on, on 1.3.1995 the case was also registered under section 302 of the Indian Penal Code. The allegations made by the informant were that he suspected that the petitioner, Sita Ram Mahto, had administered poison to his father Dhorai Mahto as a result of which he died. In the course of investigation several witnesses had supported the case of the prosecution. Ultimately the police submitted final form holding that no body supported the suspicion of the informant that Sita Ram Mahto had administered poison to his father, Dhoraj Mahto. Subsequently on 28.9.1999 the informant filed a protest petition against this final form submitted by the police. In this protest petition he had introduced some more names. This protest petition was treated to be a complaint petition and the complainant was examined on solemn affirmation on 25.9.2000. After 7 years of the alleged occurrence P.W.s. 1, 2 and 3 were examined in an enquiry under section 202 of the Code but it would appear that none of them were eye witnesses of the alleged occurrence. The learned Magistrate while holding enquiry under section 202 of the Code had not complied with its mandatory provision relating to the committal enquiry in a case exclusively triable by the court of session and he has not examined all the witnesses nor did he call upon the complainant to produce them. On these grounds amongst others it has been contended the impugned order be quashed.

4. The parties have been heard at length with respect to the present application. I have perused the impugned order also in which the learned Judicial Magistrate had examined the evidence of three witnesses examined by him in course of the enquiry. He came to the conclusion that a prima facie case under section 302 of the Indian Penal Code has been made out after examining the post mortem examination report, viscera report and the evidence on record. He, accordingly, ordered for issue of summons against the accused persons who are the present petitioners.

5. At the time of hearing it has been pointed out that the impugned order is also liable to be quashed inasmucn as the learned Magistrate has not followed the mandatory provision of law as contained in section 202 (2) of the Code. This sub-section runs as follows:-

"202 (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."

6. It has been submitted before me on behalf of the petitioners that since this mandatory provision of law has not been followed by the learned Sub Divisional Judicial Magistrate the impugned order is liable to be quashed. It has been pointed out that the learned Judicial Magistrate had not called upon the complainant to produce all his witnesses and to examine them on oath. It has been further contenced that since all the witnesses have not been examined by the learned Judicial Magistrate as per the mandate of proviso to section 202 (2) of the Code, the impugned order is liable to be quashed. In this connection my attention has been draw