The requirement of the proviso to sub-section (2) of section 202 of the Code of Criminal Procedure, 1973 is that the Enquiring Magistrate should call upon the complainant to produce all his witnesses. If for one reason or other, the complainant fails to produce all the witnesses, the Magistrate shall be perfectly justified in proceeding to consider the question as to whether the petition of complaint be dismissed or the accused persons should be summoned on basis of the materials on the record.

Nagendra Prasad Singh, J.

1. The petitioners have questioned the legality of an order dated 25.10.1978 passed by the learned Chief Judicial Magistrate, Aurangabad summoning these petitioners to stand trial under section 395 and section 307 of the Indian Penal Code.

2. It appears that on basis of a first information by one Ramashish Sao lodged on 25.2.1977 before the Officer-in-charge, Obra P.S. a case was registered. Ultimately, a final report was submitted which was received by the learned Chief Judicial Magistrate, Aurangabad (hereinafter referred to as the Magistrate) on 5.8.1977. On 11.11.1977, a petition of complaint was filed by the aforesaid Ramashish Sao in respect of the same occurrence before the Chief Judicial Magistrate for prosecution of these petitioners under sections 395 and 307 of the Indian Penal Code. In that petition of complaint names of 7 witnesses were mentioned.

3. Learned Magistrate, after perusing the petition of complaint, examined the complainant on solemn affirmation and passed an order saying that he shall hold enquiry under section 202 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the Code). He directed the complainant to produce witnesses in court on 1.12.1977. Thereafter, it appears that on several dates the complainant was absent and the enquiry was adjourned. On 18.3.1978 the complainant appeared with his witnesses but the enquiry was adjourned as the Magistrate was otherwise busy. Ultimately on 18.7.1978 'the, learned Magistrate passed the following orders :

"The complainant is present with his witnesses, P.W. 1 Pargan Ram and P.W.2 Lachuman Sao is examined and discharged. Put up on 25.7.78 hearing for cognizance matter".

Again the case was adjourned. On 25.10.1978, the impugned order was passed.

4. Before a learned Judge of this Court it was urged on behalf of the petitioners that as the offences complained of are triable exclusively by the court of session and during the enquiry under section 202 of the Code all the witnesses named in the petition of complaint were not examined, there has been a contravention of the mandatory provision as, contained in proviso to sub-section (2) of section 202 of the Code. The learned Judge referred this case to a Division Bench for consideration of the aforesaid question.

5. Section 202 of the Code is different from section 202 of the old Code. Sub-section (2) of that section is as follows:

"In an inquiry under sub-section (i), 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. On a plaint reading of sub-section (2) of section 202 of the Code it appears that in an inquiry under section 202, the Magistrate may take evidence of witnesses on oath if he thinks fit, but if the offence complained of is triable exclusively by a court of session, (i) he shall call upon the complainant to produce all his witnesses, and (ii) he shall examine them on oath. According to the learned counsel appearing for the petitioners, once the offence complained of is triable exclusively by a court of session, the Magistrate is enjoined by law to call upon the complainant to produce all his witnesses and to examine them on oath, and if there is failure on the part of the Magistrate in this respect, the whole inquiry as well as the order passed on the basis of such an inquiry are vitiated. There cannot be any doubt that proviso contains a special provision in respect of inquiries held in connection with, offences which are triable exclusively by a court of session. Perhaps, the framers of the Code thought it desirable that whenever the enquiry is in respect of an offence which is triable exclusively by a court of session, the complainant should be directed to produce all his witnesses who should be examined on oath. This w