In cases exclusively triable by a Court of Sessions, the Magistrate is not required to examine all witnesses before issuing process.

( 1 ) THE Special Bench has been constituted on the requisition of N. C. Mukherjee, J. , who being unable to agree with a Division Bench decision on this Court in the case of Kamal Krishna De v. The State and Ors. (81 CWN 976) and in view of conflicting decisions of other High Courts on the point, referred the matter to the learned Chief Justice constituting a larger Bench relying on the principle laid down in the case of Tara Dutta v. The State and Anr. (79 CWN 996 ).

( 2 ) ON December 16, 1975 the complainant opposite party Pravash Kumar Chowdhury lodged a petition of complaint against the petitioners in the Court of the Sub-Divisional Judicial Magistrate at Basirhat alleging complainant of offences under Ss. 148, 324, 307 and 395 read with s. 120b of the Indian Penal Code. The learned Magistrate after examining the complaint and one witness by an order dated December 16, 1975 issued process against the petitioners under the aforesaid sections overruling their contention that it was necessary to examine all the witnesses in accordance with the provisions of S. 202 of the Civil Procedure Code, 1973. Against the order the Rule has been obtained.

( 3 ) THE point in issue in this Rule and which according to N. C. Mukherjee, J. requires the consideration of a larger Bench, is whether in cases instituted on a complaint and which are exclusively triable by a Court of Sessions, the Magistrate is required to call upon the complainant to produce all his witnesses and to examine them under the proviso to S. 202 (2) of the Code before the issue of process? Incidentally different Division Bench of this Court, not only in the case reported in 81 CWN 976 but also in our unreported decisions, have consistently held that in such cases a Magistrate has to call upon the complainant to produce all his witnesses and to examine them.

( 4 ) MR. Balai Chandra Ray, learned Advocate appearing on behalf of the complainant opposite party, ha assailed the competency of the reference. Mr. Ray has submitted that a single Judge is bound by a decision of the Division Bench and in case of any disagreement a reference can only be made to a Bench of two Judges as laid down in the Appellate Side Rules of this High Court and the learned Chief Justice has no inherent power to by-pass the Rules and to constitute a Special Bench in criminal matters on the requisition of a single Judge. Mr. Ray has further submitted that to this extent the decision of Tara Dutta v. The State and anr. (supra) is not correct. Mr. Nalin Chandra Banerjee, learned Advocate appearing on behalf of the petitioners, has adopted Mr. Ray's arguments.

( 5 ) ACCORDING to the learned Public Prosecutor appearing on behalf of the State, there is no provision in the Appellate Side Rules which makes it mandatory on a single Judge to follow the decision of a Division Bench, as such a single Judge can, when the differs, make a reference to the learned Chief Justice for constitution of a larger Bench and the learned Chief Justice having unlimited power under proviso (ii) of Rule 1 Part I. Chapter II of the Appellate Side Rules can constitute a larger Bench on such requisition. As regards the inherent power of the learned Chief Justice, Mr. Mitra, on the basis of the authority of the Supreme Court decision in the case of Pramatha Nath Talukdar and anr. v. Saroj Ranjan Sarkar (AIR 1962 SC 876), has submitted that the learned Chief Justice had the inherent power to constitute this special Bench on the requisition of N. C. Mukherjee, J.

( 6 ) THE learned Chief Justice constituted the Special Bench in Tara Dutta's case after R. Bhattacharyya, J. had directed the mater to be placed before him for constitution of a suitable larger Bench to examine the question of law involved and to dispose of the same. The Special Bench relying on the decision of the Supreme Court in the case of Pramatha Nath Talukdar and anr. v. Saroj Ranjan Sarkar (supra) held that the l