Hon’ble V.D. Chaturvedi, J.—The allegations against the petitioner are that they have entered into the house of the complainant (opposite party No. 2), have fired at her and have beaten her. But the opposite party No. 2 escaped narrowly and did not sustain any fire arm injury.

2. Learned Counsel for the applicants contends that under the proviso to sub-section (2) of Section 202, Cr.P.C., it was incumbent upon the magistrate to call upon the complainant to produce all of his witnesses and to examine them on oath; that the magistrate, contrary to the said provisions of law, summoned the petitioners under Section 204, Cr.P.C. for the offence under Section 307, IPC without examining the doctor and other witnesses.

3. The word “his witness” occurring in the proviso to sub-section (2) of Section 202, Cr.P.C. is of material significance. The formal witnesses, such as doctor, Investigation Officer, Executive Magistrate, Police constable etc. are not under the command of the complainant. They are not the witnesses of the complainant’s confidence. Hence they are not “his witnesses”. Thus the formal witnesses are not covered by the proviso to Section 202 (2), Cr.P.C.

4. The complainant