The Magistrate has the discretion to examine witnesses under Section 311, Cr. P. C., but this discretion must be exercised judiciously. The complainant should be given an opportunity to cross-examine a witness called by the Court under Section 311, Cr. P. C. Section 197, Cr. P. C. provides protection to public servants only when the alleged act is reasonably connected with the discharge of their official duty.

ARIJIT PASAYAT, J.

( 1 ) ALLEGING Police brutality, the petitioner filed a complaint praying for taking action against the opposite parties Nos. 2 and 3, who were at the relevant point of time functioning as officials of Bhadrak Police Station, before the learned Sub-Divisional Judicial Magistrate, Bhadrak (in short, 'sdjm' ). The allegations were that on account of brutality of the opposite parties Nos. 2 and 3 one Sk. Mairaj, brother of the petitioner lost his life, and therefore offences punishable under Sections 302, 302/149, 302 / 34 and 379 / 34 of the Indian Penal Code, 1860 (in short, 'ipc') were made out against them. Allegedly opposite parties Nos. 2 and 3 carried the deceased in van and administered severe blows on 30-3-1991, and subsequently his dead body was handed over to his relations on 31-3-1991 in the afternoon and direction was given to finish the funeral early. Thirty-three witnesses were named in the complaint petition stating that their evidence would establish the complainant's case. Out of them twelve were examined as prosecution witnesses. Though one was examined as court witness, he was described as P. W. 13. By the impugned order dated 22-5-1991, in I. C. C. Case No. 138 of 1991 the learned SDJM refused to take cognizance.

( 2 ) THE stand of the petitioner in support of the revision application is as follows: (A) Since the offences were exclusively tribale by the court of session, all the witnesses named should have been examined. Reference in this context is made to proviso to sub-section (2) of Section 202 of the Code of Criminal Procedure, 1973 (in short, 'crp C ). (b) One witness was examined though he was not named by the complainant, and in fact he should not have been treated as prosecution witness because the Court directed his examination. In any event the petitioner was not granted any opportunity to cross-examine the said witness, though his evidence was considered by the learned SDJM to draw adverse inference against the petitioner. (c) Evidence of two witnesses (examined as P. Ws. 9 and 12) should not have been considered. (d) The Court at the stage of considering whether cognizance is to be taken or not should not make an elaborate analysis, and should only see whether prima facie case exists. (e) The conclusion that the sanction as stipulated in Section 197, Cr. P. C. was required in the case at hand is not tenable in law. The learned counsel for State as well as accused-opposite parties supported the order passed by the learned SDJM.

( 3 ) I shall first deal with the question whether all the witnesses are to be examined. There cannot be any hard and fast rule in that regard. The complainant who has named some witnesses in the complaint petition may not choose to examine them, if he finds that their examination may be adverse to his interest, as they may have been gained over. The expression "all his witnesses" should be construed to mean all the witnesses, whom the complainant chooses to examine. In a given case the complainant after having submitted his list of witnesses may indicate to the Court that he does not want to examine some witnesses. Proviso to sub-section (2) of Section 202 is not of such a mandatory nature that non-compliance will vitiate the jurisdiction of the Magistrate taking cognizance. If the complainant gives up some witnesses, then the witnesses left are not "his witnesses". Only those on whom the complainant relies need be examined. The complainant is free to examine witnesses who are of his choice. He cannot be compelled to examine a person, whom he knows is going to depose against him, or is going to suppress the truth. However, he has to make it clear to the Court that he does not want to examine some particular persons, though named as witnesses in the complaint petition.

( 4 ) IN the case at hand I find that though thirty-three witnesses were named by the complainant in the complaint petition, he had filed a memorandum on 7-5-1991 to the effect that he d