The summoning order under Section 436 IPC should be passed after complying with the mandatory provisions of the proviso to Section 202(2) Cr. P. C.

List has been revised. None appears for the revisionists to press the revision.

2. Perused material on record and heard learned A. G. A.

3. It appears from the record that revisionists were summoned to stand trial under Sections 147,148, 427 and 435 I. P. C. The complainant felt aggrieved and filed a revision claiming that offence under Sec tion 436 I. P. C. was also made out. The revisional Court allowed the revision and directed the learned Magistrate to summon the accused persons under Section 436 I. P. C. in addition to the offences under Sections 147, 148, 427 and 435 I. P. C. In the present revision order passed by the IV Addl. Ses sions Judge, Mirzapur, allowing the revision of the complainant is challenged on the ground that the offence under Section 436 I. P. C. was triable exclusively by the Court of Sessions and in view of the provisions con tained in the proviso to Section 202 (2) Cr. P. C. , the summoning order could not be passed without examining all the witnesses.

4. Proviso to sub-section (2) of Section 202 Cr. PC. reads as follows:-

"provided that if it appears to the Magistrate that the offence complained of is triable exclusive ly by the Court of Sessions, he shall call upon the complainant to produce all his witnesses and ex amine them on oath. "

It is not disputed that offence under Section 436 I. P. C. is exclusively triable by Court of Sessions and in view of the proviso reproduced above the Magistrate is re quired to call upon the complainant to produce all his witnesses and examine them on oath. In case the complainant chooses not to examine some of the witnesses, he is required to make a mention of this fact. The provisions of the proviso reproduced above are mandatory. So far as the finding of the revisional Court that the facts alleged make out a case under Section 436 I. P. C. is con cerned, there is no error in it. The revisional Court while directing the Magistrate to summon the accused persons under Section 436 I. P. C. should have also directed that summoning order under Section 436 I. P. C. shall be passed after complying with the proviso to Section 202 (2) Cr. P. C. To this extent, in my view, the order of the revisional Court deserves to be modified.

5. The revision is partly allowed. Order of the revisional Court is modified and it is directed that the learned Magistrate shall summon the accused persons under Section 436 I. P. C. only after complying with the provisions of the proviso to Section 202 (2) Cr. P. C. Stay order dated 30-5-88 is vacated. Revision partly allowed.

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