The Magistrate has the jurisdiction to take cognizance of an offence and issue process under Section 190 of the CrPC without following the procedure under Sections 200 and 202, and is not required to examine all the prosecution witnesses before issuing process, but only those witnesses who are of the complainant's choice or in whom the complainant reposes confidence.

( 1 ) BY present revision under S. 397/401 of the Code of Criminal Procedure, 1973 (for short the Code), the order dated 25th Jan. 1986 passed by Chief Judicial Magistrate, Mirzapur issuing process against the applicants in Crime No. 107 of 1985 under Section 302/34, I. P. C. is sought to be quashed.

( 2 ) THE short account of the events, relevant for the disposal of this revision may be indicated. One Smt. Naimun (complainant) opposite party No. 2 lodged a F. I. R. on 7th May, 1985 at 4 p. m. at P. S. Adalat Distt. , Mirzapur stating that on the same day at about 2 p. m. Km. Parana daughter of complainant, went to the bank of river Ganga but failed to come back. Her sister Km. Hamida who went to trace her out, stated on return that her sister (Km. Parmia) was being drowned by Jumman and Islam, (the applicants 1 and 2 ). Sardar and Dilbahar went on the spot and saw the accused running away after drowning Km. Parmia who was taken out of water and was found dead. Final report was submitted. The complainant, opposite party filed a protest petition in the Court of Chief Judicial Magistrate, Mirzapur and to prove the occurrence, and some affidavits were filed by the informant. The Chief Judicial Magistrate took cognizance, purporting to be under S. 190, and issued process. This is impugned order.

( 3 ) HEARD learned counsel for the parties. Counsel for the applicant urged that after final report was submitted if any protest petition or complaint was filed in a case exclusively triable by the Court of Session before taking cognizance and issuing process, the Magistrate must follow the procedure provided in Second Proviso to S. 202 by directing the complainant to procure all the prosecution witnesses. On the basis of affidavits cognizance cannot be taken. Reliance was placed on Ahibaran Singh v. State of U. P. , 1983 All Cri C 236, Dinesh Chandra Sinha v. Rahmat Ulla, 1981 All Cri C 313 , Biren v. State of U. P. , 1985 All Cri C 116 (1), Ram Adhar v. State of U. P. , 1980 All Cri C 165 , Awadh Pati Singh v. Raj Bahadur Singh, 1978 All Cri R 422.

( 4 ) COUNSEL for the opposite parties on the other hand urged that the provisions of S. 190 of the Code are very comprehensive. The cognizance can be taken in either of three modes indicated therein. Procedure of S. 202 applies when after receipt of papers and complaint or protest petition the Magistrate postpones the issuing of process, otherwise the Magistrate has ample power to issue process straightway, in that event procedure under S. 202 (2) or its proviso need not be followed. Further second proviso to S. 202 does not require all the prosecution witnesses to be examined but only those witnesses upon whom the complainant relies and who are of his confidence. No ground for exercise of revisional power was made out. Affidavits were filed for the sake of precautions and the Same were not necessary to be considered.

( 5 ) POINTS for determination are whether after receipt of Final Report and protest petition, in a case triable exclusively by the Court of Session, the Magistrate can take cognizance and issue process without following the procedure provided under Ss. 200 and 202, and whether in such a case no cognizance can be taken and process issued without all the prosecution witnesses given in the list. The next point is whether affidavit can be filed by the complainant and looked into by the Magistrate?

( 6 ) AS regards the first point, similar question about the jurisdiction of the Magistrate taking cognizance without following the procedure prescribed under Ss. 200 and 202 of the Code was involved in Criminal Misc. Petn. No. 14065 of 1986, Shaw Wallace and Co. Ltd. v. Rajbir Singh decided by me on 14th May, 1987 (reported in 1987 All LJ 1312) hence it is better to reiterate the reasons in brief here. In order to appreciate the controversy it is better to read Ss. 190, 200, 202, 203 and 204 of the Code together.

( 7 ) SECTION 190 occurs under Chap. 14 of the Code which d