( 1 ) THE petitioners are accused in Sessions Trial No. 182 of 1989 pending in the Court of Additional Sessions Judge, Khurai. The petitioners are being prosecuted under Sec. 307/149,324/149, 147,148 and 323/149 of the Indian Penal Code. The incident with regard to the offence of this Sessions Trial took place on 27. 8. 1988 at 11 a. m. in village Semar Khedi and it is alleged that in this very incident, some of the members of the petitioners party also sustained injuries alongwith the members of the party of the respdt. No. 2.

( 2 ) BOTH the parties were charge-sheeted by the Police under Sections 325/149, 147 and 148 of the I. P. C. and other offences. In this very incident, the respondent No. 2 sustained certain injuries on his head due to which he filed a separate complaint in the Court of Judicial Magistrate First Class Khurai against the present petitioner for the alleged offence committed by them punishable under Sec. 307 of I. P. C. Alongwith the complaint, the respondent No. 2 filed list of 16 persons as prosecution witnesses. The Learned Trial Judge examined only four prosecution witnesses in that complaint case and then passed a composite order committing the case to the Court of Sessions for an offence punishable under Section 307 of the I. P. C. , as this offence is triable by the Court of Sessions.

( 3 ) ON commitment, the learned Additional Sessions Judge framed charges against the petitioners and fixed the case for recording the evidence. Annexures-C and D are the charges framed by the learned Addi. Sessions Judge dated 1. 11. 1989. It is against these orders that the petitioners have come before this Court invoking its revisional jurisdiction.

( 4 ) THE sole contention of Shri Rajendra Singh, Senior Adv. appearing for the petitioners, is that Proviso to sub-sec. (2) of Section 202 of the Cr. P. C. is very clear on the subject that the complainant is required to produce his witnesses in the Court of Magistrate and examine them on Oath and only then, the Magistrate can commit the case to the Court of Sessions if it is triable by the Court of Sessions. Shri Jam, G. A. , appearing for the State refuted these contentions of Shri Rajendra Singh and inter-alia contended that as the Police had also filed the challan, the complaint and the charge-sheet were amalgamated and then committed to the Court of Sessions, but the fallacy of this argument is that the challan filed by the police was for an offence punishable under Section 325 of the I. P. C. which is exclusively triable by the Court of Magistrate.

( 5 ) LET me go behind the intention of the Legislature in framing this particular provision contained in the shape bf proviso to sub-Sec. (2) of Sec. 202 Cr. P. C. For convenience, it is reproduced hereunder: Sec. 202 (1) (2) In an inquiry under sub-sec. (1), the Magistrate may, if he thinks fit, take evidence of the 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:on perusal of this provision, it appears as to why the Legislature provided for examining all the witnesses of the complainant before the Magistrate decides to commit the case to the Court of Sessions. Whenever the police files the charge-sheet, there is always an investigation by the Police and during that investigation, the statements of the prosecution witnesses are recorded under Sec. 161 of the Cr. P. C. and when the accused stands his trial, previous statements of prosecution witnesses in the shape of police case diary statement is available to him while standing the trial. If the prosecution departs from the earlier version, then the accused can avail the opportunity of contradicting them during the trial but when a complaint case is committed to the Court of Sessions, this facility is not available to the accused which is available to the accused facing