M. P. Singh, J.

This application by the four accused persons is for quashing the order dated 7 June 1978 of a Judicial Magistrate of Patna City in Tr. No. 1863 of 1978. The accused are the Engineer, Sinking Incharge, Chief Security Officer and watchman of Gammons India Ltd. A complaint was made by opposite party no.2 Shital Prasad Chaudhary in respect of offences under sections 307/323/324/34, Penal Code in the Court of the Sub-divisional Judicial Magistrate, Patna City on 22 March 1978 for an occurrence of 24 February 1978. Eight witnesses were named in the complaint. Apropos of the filing of the complaint the complainant the examined on solemn affirmation on 28 March 1978 and the case was then fixed for inquiry under section 202, Criminal Procedure Code ('the Code', for short). Inquiry was held by the Sub-divisional Judicial Magistrate himself. During the inquiry four witnesses were examined on different dates, the last date being 10 May 1978. No witness was examined thereafter. On 7 June 1978 cognizance was taken and process was issued and the case was transferred to the Court of Mr. Upadhya, Judicial Magistrate, Patna City. According to the petitioners the complaint in question which was filed after about a month of the occurrence was a counter case as against Alamganj P. S. Case No. 18 (2) 78, (G. R. No. 218 of 1978) in which charge-sheet was submitted on 28 August 1978 against the present complainant Shital Prasad Choudhary and some others for having committed offences under sections 399, 402 and 307, Indian Penal Code and also under section 27 of the Arms Act.

2. Counsel for the petitioners bas contended that there has been non-compliance with the provisions of the proviso to sub-section (2) of section 202 of the Code which provides that in a case triable by a court of Session a Magistrate shall call upon the complainant to produce all his witnesses and examine them on oath and hence the order of issue of process is illegal. In my opinion, the contention is sound. It must be remembered that though commitment inquiry under the old Code has been abolished, a special procedure has been provided in section 202 which serves the purpose of preliminary inquiry as was contemplated by the old Code. The examination of witnesses as contemplated by the proviso to section 202 (2) must be done before the process is issued. In the complaint eight witnesses were named. They were, therefore, the witnesses of the complainant. Obviously, therefore, all witnesses of the prosecution were not examined in this case. Only four witnesses were examined. The Magistrate did not even call upon the complainant to produce all his witnesses as enjoined by the proviso to section 202 (2). That proviso runs as under:

"Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he s hall call upon the complainant to produce all his witnesses and examine them on oath."

On a perusal of the above it is clear that a Magistrate is bound to examine on oath all the witnesses of the complainant. He is also bound to call upon the complainant to produce all his witnesses. The matter may be different if the complainant gives up some witnesses or if some witnesses is or are not prepared to depose. In those cases they will cease to be his witnesses and their non-examination will be of no consequence. But barring that, all witnesses have to be examined. The Magistrate is bound to examine all his witnesses whom the complainant wishes to examine at the trial. The failure to do so is not an empty formality. In my opinion, the consequence of non compliance with the mandatory procedure will render the order of issuance of process and all subsequent orders following it illegal. More than a century ago in Tailor V. Tailor, Jassal M. R. adopted the rule that where a power is given to do a certain thing in a certain way, they must be done in that way or not at all and that other method of performance are neces