The proviso to section 202(2) of the Code of Criminal Procedure does not require the Magistrate to call upon all the witnesses and examine them, but only those witnesses with whose statements the complainant wants to support his case.

( 1 ) THIS revisional application under section 482 Cr. PC is for quashing the S. T. No. VII of February, 1992 pending before the 4th Addl. Sessions Judge, Midnapore.

( 2 ) THE petitioners are members of police forces posted in Gopiballavpur P. S. Subhankar Sarangi s/o the complainant was going to market. On a suspicion that he was a thief he was beaten up mercilessly as a result of which he was hospitalised subsequently and died.

( 3 ) OVER this incident the complainant, father of the victim filed complaint before the learned S. D. J. M. , Jhargram alleging that the present petitioners, who were the policemen attached to Gopiballavpur P. S. along with certain others took the deceased forcibly to the P. S. on his way to market, beat him up, took him back home when the relatives found marks of injuries on the body of the deceased, took him back to the P. S. , beat him up again mercilessly, as a result of which the victim had to be removed to the hospital where he died few days after. This written complaint, registered as a case on private complaint was prceeded with as per law by the Magistracy and committed to sessions for trial under section 302/34 IPC. The learned 4th Addl. Sessions Judge taking all materials produced by the complainant to consideration framed charge under section 304 Part-II read with section 34 IPC and proceeded with the trial, which causes this revisional application.

( 4 ) THE petitioners submit that over the self-same incident the petitioner No. 2 initiated a proceeding at Gopiballavpur P. S. under section 325/147 IPC resulting in G. R. Case No. 227/88 before the learned S. D. J. M. , Jhargram alleging that the victim was man handled by a mob and rescued by the police party. The CID took up investigation and filed F. R. as no offender could be indentified. That case, the petitioners submit, proves that the averments against the petitioners in the present case are false. The Final Report was accepted by the learned S. D. J. M. , Jhargram. The petitioners submit that in the prespective of that final report continuation of this case is abuse of judicial process and for that the proceeding and the relevant orders must be quashed.

( 5 ) ARGUING the case for the petitioners, Mr. Bose submits the final report after investigation by CID having been accepted by the learned SDJM. over the self-same incident, no case lies against the present petitioners. No FIR was lodged in this case. The persons cited as witnesses in the complaint were not examined before the learned Magistrate under section 202 Cr. PC but persons not named were examined. The learned lower court used the post-mortem report without examining the medical officer concerned and that act of the lower court was grossly illegal. The learned J. M. while committing the case did not take into consideration the perspective of the final report in the said police case and the case from defence stand point in this complaint case. Non-examination of the cited witnesses vitiates the proceeding and is grossly illegal. Law provides that list of witnesses in a Sessions triable case must be filed and exhausted under section 202 Cr. PC and the lacuna in non-compliance cannot be cured. Mr. Bose relies on 1977 Cr. LJ. 1492 paras 11 and 12, 1987 SCC (Cr.) 584 para 9, 1980 (1) CHN 68 para 8, 1997 (3) JT (SC) 131 at 135 bottom. The Sessions Case cannot proceed without furnishing the copies of documents referred to under section 208 Cr. PC.

( 6 ) MR. Chatterjee for the State awkwardly fails to put in any argument excepting 1981 Cr. LJ 838 and relying on section 464 Cr. PC. After obtaining adjournment to get himself ready he relies on 9 CWN 199. He argues that investigation into the incident by police is ridiculous when police is the real offender and the police case as ended in FR was an eye-wash to blanket their own misdeed and forestall this case lest the sin of their misdeed visit them in due course of law. Mr. Chatterjee argues that proviso to