The provisions of Section 200 of the Criminal Procedure Code, which require the Magistrate to examine the complainant and the witnesses present at the time of taking cognizance of an offence, are mandatory and not discretionary.

This Rule is at the instance of the accused-petitioner, Mac Culloch for quashing proceedings under Sections 147, 323, 341, 448, 504, 427 and 506 of the Indian Penal Code, being case No. C/293/73, pending against the petitioner and others in the Court of the Chief Presidency Magistrate, Calcutta.

2. The facts leading on to the Rule are short and simple. A petition was filed by the complainant, Md. Sharfuddin on the 30th January, 1973 before the learned Chief Presidency Magistrate, Calcutta under Sections 147, 323, 341, 448, 504, 427 and 506, I.P.C. The cause title mentioned that the application is under Section 156(3), Criminal Procedure Code and it contained a prayer to the effect that the police may be directed to take cognizance of the offences committed on treating the complaint as F.I.R. or in the alternative process may be issued against the accused. A list of witnesses was given below the said application. The learned Chief Presidency Magistrate, Calcutta, examined the complainant on solemn affirmation and by his order dated the 30th January, 1973 held that a prima facie case was made out and summoned all the accused persons under Sections 147, 448, 504, 427 and 500, I.P.C. : the accused No. 1 further under Section 323, I.P.C.; and the accused Nos. 5 and 6 also under Section 341, I.P.C. The accused No. 5 Mac Culloch, who is the present petitioner appeared in the Court below on the 19th February, 1973 and was directed to be released on bail of Rs. 500/-. He impugned the said proceedings and obtained the present Rule.

3. Three points have been raised by Mr. Dinesh Chandra Roy, Advocate (with Mr. S. P. Roy Choudhury, Advocate) in support of the Rule. The first one relates to merits and is to the effect that the materials on the record do not disclose any mens rea on the part of the accused in a dispute, between a tenant-landlord and a sub-tenant, that is essentially of a civil nature and for a proper determination whereof the criminal court is not the proper forum. The second dimension of his arguments is that the petition filed is a hybrid one being both under Section 156(3) and 4(1)(h), Criminal Procedure Code and the cognizance taken thereupon by the learned Chief Presidency Magistrate, Calcutta has been bad, vitiating thereby all the subsequent orders. The third and last branch of Mr. Ray's contention relates to a non-conformance to the mandatory provisions of Section 200, Criminal Procedure Code inasmuch as the learned Chief Presidency Magistrate, Calcutta, while taking cognizance of the offences, did not examine the witnesses present along with the complainant. In this context he submitted that no less than six witnesses were mentioned in the petition of the complaint. Mr. Abul Hossain, Advocate (with Mr. Bidyut Kumar Banerjee, Advocate) appearing on behalf of the complainant-opposite party No. 2 joined issue contending inter alia that it is premature at this stage to quash the criminal proceeding on merits on the ground that there is no mens rea disclosed; that the cognizance taken by the learned Chief Presidency Magistrate, Calcutta is on the alternative prayer made in the petition of complaint; and that there has been no non-conformance to Section 200, Criminal Procedure Code; inasmuch as there are no materials on the record to establish that witnesses were present on the occasion along with the complainant. Mr. Barendra Nath Sur, Advocate, appearing on behalf of the State also opposed the Rule. He submitted in the first instance that there should be no quashing of the criminal proceedings at this stage and the points raised may be decided on proper materials adduced during the trial Mr. Sur further contended that the complainant was examined and the relevant papers were perused before the processes were issued and as such there has been no prejudice.

4. Having heard the learned Advocates appearing on behalf of the respective parties and on going through the materials on the record I will now take up for cons