The main legal point established in the judgment is that in a complaint case exclusively triable by a Court of Session, the Magistrate is obligated to conduct an enquiry under S. 202(1) and call upon the complainant to produce all his witnesses and examine them on oath as per the proviso to sub-section (2) of S. 202.

PADMANABHAN, J.

These cases have been referred to a Full Bench to decide the question whether it is mandatory that a Magistrate, before issuing process to the accused on a complaint disclosing an offence which is exclusively triable by a Court of session shall call upon the complainant to produce all his witnesses and examine them on oath. A Division Bench of this Court in Sulaiman v. Eachara Warrier, 1978 Ker LT 424 took the view that it is not mandatory since the duty to conduct an enquiry under S. 202(1), Criminal P.C. (for short 'the Code') itself is only discretionary. The correctness of that view is doubted and hence the question as well as the cases have been referred to the Full Bench.

2. Crl. M.C. 974 of 1984 arose out of a complaint filed by the respondent before the Judicial Second Class Magistrate, Parappanangadi against the three petitioners. The complaint is in protest against a police report in a murder case in which only two of the petitioners were made accused. Cr. M.C. 17 of 1985 is against a private complaint filed by the respondent before the Judicial First Class Magistrate, Payyannur, against the petitioner which was taken to file as C.P. 22 of 1984 for offences punishable under Ss. 313 and 493 of the Indian Penal Code.

3. In both cases, the common question for consideration is, whether a Magistrate, who receives a private complaint which discloses an offence exclusively triable by a Court of Session and who records the sworn statement of the complainant as contemplated by S. 200 of the Code should also resort to the enquiry envisaged in S. 202(1) and by virtue of the proviso to sub-section (2), is he bound to call upon the complainant to produce all his witnesses and examine them on oath. In both cases the learned Magistrates concerned did not think it fit to postpone issue of process against the accused as contemplated in S. 202(1) of the Code, but ordered process under S. 204, evidently on the basis of the opinion that there was sufficient ground for proceeding. According to the petitioners, in dealing with a private complaint disclosing an offence exclusively triable by a Court of Session, Magistrate cannot skip over the stage contemplated in S. 202 but must necessarily adopt the procedure contemplated therein. In Crl. M.C. 17 of 1985 there is a further ground that the complaint does not disclose offences which the Magistrate took cognizance of.

4. Before passing on to the main issue, we shall consider the question which is exclusive to Crl. M.C. 17 of 1985. S. 493, I.P.C., is one of the offences relating to marriage. The section does not penalise mere cohabitation or sexual intercourse with a woman who is not lawfully married to him. The section is attracted only when certain other ingredients are also associated therewith. The section envisages the case when a man deceitfully induces a woman to have sexual intercourse with him causing her to believe that she is lawfully married to him. The essence of the section is therefore the deception caused by a man on a woman, in consequence of which she is led to believe that she is lawfully married to him while, in fact, they are not lawfully married. In order to establish deception there must first be allegations that the accused falsely induced her to believe that she is legally wedded to him. In the complaint in this case there is no allegation of any such deception or inducement. In a case where both the man and woman fully knew that they are not husband and wife and no ceremony of marriage took place between them, there is no question of one of them believing otherwise. Even if the entire allegations in the complaint are taken as true the section is not being attracted. The allegation is that though they are not husband and wife they had sexual union during late hours in the night for a pretty long time. What is alleged in the complaint is only a promise to marry in future. The strange part of it is, there is the further allegation that one da