PASAYAT, J.

( 1 ) THE scope and ambit of proviso to Sub-Section (2) of Section 202 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code') so far as it relates to the expression "all his witnesses''appearing there in is the subject-matter of reference by a learned Single Judge, who felt it necessary to refer the matter to a Division Bench, as he noticed cleavage of views. While some of the learned Single Judges held that the expression "all his witnesses" includes the complainant, others held otherwise. The proviso is a new introduction and has no pari materia provision in the Code of Criminal Procedure, 1898 (in short, 'the old Code' ). The learned Judges who subscribed the view that the expression "all his witnesses" includes complainant have emphasised on the fact that complainant is the star witness and therefore, comes under the umbrella of the expression "all his witnesses". While expressing the contrary view, other Hon'ble Judges have highlighted that the choice to examine the witnesses being that of the complainant, there is no legal compulsion on the complainant examining himself.

( 2 ) THE pivotal provision Section 202 in its entirety reads as follows :"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 Section 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 Section 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 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 Court on an officer in charge of a police station except the power to arrest without warrant. "

( 3 ) SECTION 202 deals with postponement of issue of process after complainant is examined. We are primarily concerned with the proviso to Sub-Section (2) of Section 202, which has reference to an inquiry under Sub-Section (1 ). Sub-Section (1) of Section 202 empowers any Magistrate to postpone issue of process against the accused and to 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 (or proceeding. Under Sub-Section (2) the Magistrate may, if he thinks fit, in an inquiry under Sub-Section (1), take evidence of witnesses on oath. The proviso which is mandatory in nature comes into operation where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session. In such a situation he is obligated to call upon the complainant to produce all his witnesses and examine them on oath. The expression "all his witnesses" has been construed to mean "all the witnesses whom the complainant chooses to examine". The complainant is given opportunity to produce witnesses and it is open to him to produce all or some of the witnesses in the inquiry. While he adopts the latter course, he is to intimate the Court that no other witness is proposed to be examined