This revision comes before this Court by way of reference made by the learned Sessions Judge of East Thanjavur under S. 395(2) of the Cri.P.C. to this Court for the decision of the following question of law, viz., whether all the witnesses cited in a case triable exclusively by the Court of Session, instituted on a private complaint, should be examined by the committing Court, as contemplated under the proviso to S. 202(2) of the Code and if so, to quash the committal order passed by the learned Judicial Second Class Magistrate, Tiruvarur in P.R.C. 8/80 on his file, in which only four witnesses out of 9 cited have been examined.

2. The matter in question no doubt raises a very interesting and important question of law in respect of which there is a cleavage of judicial opinion among the various High Courts. Sections 200 to 203 of Chapter XV of the Cr.P.C., 1973, under the heading "Complaints to Magistrates", deal with the examination of the complainant and the procedure to be followed by the Magistrate while taking cognizance of the cases and also the dismissal of the complaint if there is no sufficient ground for further proceeding. S. 200 casts a mandatory duty on a Magistrate taking cognizance of an offence on a complaint, to examine the complainant and the witnesses present, if any, upon oath and to reduce the substance of such examination in writing and get the same signed by the concerned persons.

3. There are two provisos under that section. The first proviso reads that when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses (a) if a public servant acting or purporting to act in the discharge of his official duties or a court has made the complaint : or (b) if the Magistrate makes over the case for inquiry or trial to another Magistrate under S. 192. The second proviso to the section reads that if the Magistrate makes over the case to an other Magistrate under S. 192 after examining the complainant and the witnesses, the Magistrate to whom the case has been made over need not re-examine them.

4. We are not concerned with S. 201 in this case as that section deals only with the procedure to be followed by a Magistrate, not competent to take cognizance of the case.

5. Section 202, which is an important provision to be examined for answering this reference, deals with the procedure to be adopted where the Magistrate, after postponing the issue of process for the purpose of deciding whether or not there is sufficient ground for proceeding in all the cases inclusive of a case triable exclusively by a Court of Session. There is a proviso to S. 202(1) and another proviso to S. 202(2). I shall reproduce sub-sections (1) and (2) of S. 202, with the provisos, for a proper understanding of the import of the section, which I shall deal with exhaustively after referring to various decisions rendered by various High Courts on the matter.

"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-section (1) the Magistrate may, if he 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