1. This revision is for impugning the order dated 7th March, 2006 passed by Sessions Judge, Gwalior in Criminal Revision No. 65/06 whereby the learned Judge has affirmed the order dated 28.2.2006 passed by the JMFC, Gwalior in a case instituted on a private complaint filed by the petitioner against the respondents No. 1 to 4, by which the learned Magistrate has directed the complainant to deposit the diet money and travelling expenses of the witnesses, requested to be summoned by him.

2. It is submitted by Shri Pathak that with regard to an incident happened on 18.7.2005 petitioner lodged a report at Police Station, Gwalior on which Crime No. 51/05 was registered for the offence punishable under sections 452, 323, 506/34 and 294 of IPC. During investigation, injured died. Despite this fact, police filed challan for the aforementioned offences without adding the offence of murder under section 302 of IPC. Therefore, the petitioner was compelled to file the complaint. During enquiry, under chapter XV of CrPC, petitioner filed one application dated 6.1.2006 for calling his witnesses, on which the learned Magistrate directed the petitioner to deposit the diet money and travelling expenses of the witnesses vide order dated 28.2.2006. Feeling aggrieved, the petitioner filed the revision petition before the Sessions Judge and vide impugned order dated 7th March, 2006, the learned Judge has affirmed the order passed by the learned Magistrate.

3. The impugned order has been assailed by Shri Pathak on the ground that in all non bailable cases diet money and travelling expenses are to be borne by the State, as provided by Rule 558 of Rules and Orders Criminal issued for the guidance of the criminal Courts. In support he has further drawn attention on an order of this Court passed in Mohar Singh v. State of M.P. [1992 (II) MPWN 43].

4. Shri Bharadwaj for the respondent No. 5/State has submitted that a private complaint has been filed by the petitioner and aforementioned expenses are to be borne by the complainant.

5. Admittedly, the complaint is being dealt with by the learned Magistrate under chapter XV of CrPC, which includes sections 200 to 203 of CrPC. On filing of a complaint, as provided by section 200 of CrPC Magistrate has to examine the complainant and the witnesses present along with him. The provision of section 201 of CrPC deals with the procedure to be adopted by a Magistrate, where he is not competent to take cognizance of the offence, which is irrelevant for the present dispute. Similarly, the provision of section 203 of CrPC is also not relevant at present, as it authorizes a Magistrate to dismiss a complaint, if on the statements of the witnesses and as per the result of inquiry if any, he forms an opinion that there is no sufficient ground for proceeding. Remaining provisions of section 202 of CrPC are as under:

"202. Postponement of issue of process. -- (1) Any Magistrate, on receipt of a complaint of an offence of which he is authorized 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 S. 200.

(2) In an inquiry under sub-section (1), the Magistrate may, ifhe 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 h