The discretionary power of the Magistrate to decide whether to conduct an inquiry and examine witnesses, and the non-obligatory nature of examining witnesses at the pre-cognition or commitment stage.

Accused 1 to 3 in a case initiated on a private complaint by the Judicial Second Class Magistrate, Cochin and pending trial before the Assistant Session Judge, Cochin are the petitioners.

2. The complaint was filed at 5-15 p.m. on 19-4-1976 with a schedule of witnesses. The complainant was directed to appear and to produce the witnesses in the schedule also at 11 a.m. on 20-4-1976. On 20-4-1976 the sworn statement of the complainant was taken. No witnesses were present. The court registered the case as P.E. 7 of 1976, directed summons to be issued to all the accused and posted the case to 11-5-1976. On the application of the accused the case was adjourned to 25-5-1976. On that day copies of the documents were furnished to the accused. The case was adjourned for hearing and further steps to 28-5-1976. On that day counsel for the complainant and the accused were heard. Since the offences taken cognizance of were exclusively triable by the Court of Session, the Magistrate committed the case to the Court of Session. The Assistant Sessions Judge, Cochin framed charges under S. 450 read with S. 34 of the I.P.C. and S. 364 read with Ss. 511 and 34 of the I.P.C. The present petition filed under S. 482 of the I.P.C. is to quash the order of committal.

3. The petitioners would contend that the order of committal is illegal because the mandatory provisions contained in S. 202 and S. 208 of the Cri.P.C. have not been followed. According to the petitioners, the Magistrate having directed the complainant to produce the witnesses should have insisted on their examination and should have dismissed the complaint on the complainant's omission to produce the witnesses. The further case of the petitioners is that the proviso to S. 202(2) of the Criminal P.C. lays down a special procedure in respect of offences triable exclusively by a Court of Session and the order of committal in violation of the said procedure is illegal.

4. For appreciating the reasoning it is necessary to extract S. 202 of the Cr.P.C.

"202. Postponement of issue of process :-

(1) Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him under S. 192, may, if he thinks fit, postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding :

Provided that no such direction for investigation shall be made :-

(a) Where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session : or

(b) Where the complaint has not been made by a court, unless the complainant and the witnesses present (if any) have been examined on oath under S. 200.

(2) In an inquiry under sub-sec. (1), the Magistrate may, if the 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.

(3) If an investigation under sub-section (1) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this Code on an officer-in-charge of a police station except the power to arrest without warrant."

The petitioners would contend that in view of the fact that the offences in the case were exclusively triable by the Court of Session, the Magistrate before ordering committal should have called upon complainant to produce all the witnesses and should have examined them as directed in the proviso to S. 202(2), Sri V. K. Hamza the learned counsel for the petitioners placed reliance on the ruling Paranjothi Udyar v. State (1976 Cri LJ 598) (Mad). Therein on a complaint presented on 5-2-1974 the case was taken to file under S. 395 read wi