ORDER J.P. Semwal, J.
1. By this application under Section 482, Cr. P. C. the applicant Gopal Singh has sought quashing of the complaint in Criminal Case No. 418 of 1982 under Section 302/34, I.P.C, Police Station Chiraiya Kot, district-Azamgarh, pending in the court of Additional Judicial Magistrate, Azamgarh.
2. An incident took place on 21-3-1981 at about 9-9-30 P.M. in which Paramhans Singh, Surya Nath Singh and Kedar died and Devendra Singh received injury. Three different First Information Reports were lodged in respect of the said incident by different persons, vide Annexures-B, C and D, annexed to the affidavit filed in support of the present application.
3. It is alleged that the First Information Report (Annexure-C) was lodged by Smt. Dhanraji, opposite party No. 3, who was not an eye-witness, while the remaining two First Information Reports were lodged by the eyewitnesses. Chiraiya Kot Police, after investigating the case, submitted final report in all the above Crime Nos. 93, 93A and 93B of 1981. After submission of the final report, the opposite party No. 1 Smt. Dhanraji filed a complaint on 18-6-1983, in the Court of Chief Judicial Magistrate, Azamgarh, against the present applicant along with three others under Sections 302/34, I.P.C. vide annexure-1 to the affidavit filed in support of the instant application. The Additional Judicial Magistrate, Azamgarh, has summoned the applicant and three others under Section 302/34, IPC, vide his order dated 20-9-1982 (Annexure-E). It is contended that out of 14 witnesses mentioned in the list, only Dhanraji, Brijesh Singh, Bhagwan Singh, Harinath, Shah Singh and Dr. S.B.D. Gupta, were examined and the Additional Judicial Magistrate summoned the applicant and three others without complying with the provisions of Section 202(2), Cr.P.C, The applicant has prayed for quashing of the complaint on the ground that summoning order without complying with the provisions of Section 202(2), Cr.P.C. is illegal.
4. At the time of admission of this application, further proceedings were stayed, vide order dated 2-11-1982 of this Court.
5. I have heard the learned counsel for the parties at considerable length and have perused the record of the case as well as rulings cited before me.
6. Sri V.C. Tiwari, learned counsel for the applicant, has raised sole contention that the mandatory provisions Under Section 202(2), Cr.P.C. have not been complied with by the Magistrate concerned by not examining all the witnesses of the complainant before summoning the accused and, therefore, the summoning order is illegal and the complaint is liable to be quashed.
7. In order to appreciate the contention of the learned counsel it would be relevant to set out the provisions of Section 202, Cr.P.C. which reads as follows:
"202 Postponement of issue of process-(i) Any Magistrate on receipt of a complaint of an offence of which he is authorised 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 complaned 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 examine on oath under Section 200.
(2) In an enquiry under sub-section (1) the Magistrate may, if he thinks fit, take evidence of witnesses on oath:
Provided that if it appers 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.
(3) If an investigation under sub-section (3) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this code on an officer in charge of a police station, except the power to arrest without warrant."
8. This section only applies (i) where there is a complaint filed under Section 190(i)(a), Cr.P.C. before a Magistrate; or (ii) when it is transferred to him under Section 192, Cr.P.C. and not under Section 410. It does not apply when cognizance is taken otherwise than on complaint. This section comes into play when the Magistrate alter examining the complainant and his witnesses present if any, has reasons for distrust and thinks that he would not be justified in issuing process without taking some further steps to ascertain whether the allegations are prima facie true or not.
9. A new clause (a) proviso to sub-section (i) and new proviso to sub-section (2) have been added making provision that the Magistrate taking cognizance of the offence triable exclusively by Court of Sessions must himself make an enquiry into the complaint and call upon the complainant to produce all witnesses and examine them on oath and further that in such a case, the Magistrate must not direct investigation by the police officer or other person.
10. This provision has been incorporated because of the abolition of all committal enquiries in the new code and to provide some sort of preliminary scrutiny by the Magistrate himself in complaint case before he commits a ' case to the court of sessions under Section 209, Cr.P.C.
11. Section 202, Cr.P.C. makes clear that after issuing process the Magistrate cannot under the present code, hold any enquiry as contemplated by Section 202 of the Code and that once process is issued, the Magistrate can only, where it appears to him that offence is triable exclusively by the Court of Sessions, commit the case to the Court of Sessions.
12. Even in a case, exclusively triable by the Court of Sessions, all that the Magistrate has to see, is whether on cursory perusal of the complaint and the evidence there is prima facie evidence in support of the charge against the accused, Kewal v. Suraj.
13. Thus, holding of an enquiry or taking of any other step under Section 202(1) is not obligatory in any case but is discretionary that the Magistrate if wants to be further satisfied after examination of the complainant under Section 200 as to whether there is sufficient ground for proceeding. This is made clear by the words 'may if he thinks fit' in Section 202(1).
14. Proviso to sub-section (2) of Section 202 cannot be read as a proviso to sub-section (1) of that section. Hence, if the Magistrate issues process after examining the complainant under Section 200, Cr.P.C. and thereafter commits the accused under Section 209, his order cannot be challenged on the ground that he should have held an enquiry under Section 202 and examined all the witnesses of the complainant before issuing process, because, the case was triable exclusively by the Court of Sessions (See Lakhsmanappa v. Narasappa, 1976 Cri LJ 127.
15. The proviso to Section 202(2) is attracted only when the Magistrate postpones issuance of process and holds enquiry. Thus, when the Magistrate does not postpone the issue of the process and on examining the complainant on oath under Section 200, issues process under Section 204, Cr.P.C., in a case exclusively triable by Court of sessions and subsequently commits the accused to the Court of Sessions he does not commit any illegality, because he has no obligation to examine all the witnesses of the complainat before the process (See Extra Assistant Sessions Judge, Ahmadnagar, In Re: 1981 Cri LJ 801 (sic).
16. The obligation under Section 202(2), Cr.P.C. would not arise in a case where the Magistrate does not postpone the issue of process and hold an enquiry and the obligation under Section 208(1) also arises only where the witnesses are examined "under Section 202 or 208". If the Magistrate decides to postpone issue of the process and to hold an enquiry under sub-section (1) of Section 202, then the proviso to sub-section (2) of Section 202 comes into operation and the Magistrate must comply with the statutory requirements of the proviso which are mandatory. The proviso which is appended to sub-section 2 of Section 202 makes it obligatory upon the Magistrate to call upon, the complainant to produce all his witnesses and examine them on oath, if the offence alleged is triable exclusively by the Court of Session.
It is quite clear from the wroding of the proviso to sub-section 2 of Section 202, Cr.P.C. that it places fetter on the discretion of the Magistrate and it is obligatory for Him to call upon the complainant to produce all his witnesses and examine them on oath, and which he intends to rely upon. No discretion is given to the Magistrate either to take evidence of all witnesses on oath or not at his discretion. He is bound to require the complainant to call all his witnesses. This proviso does not show that all the prosecution witnesses must be examined by the Magistrate. The intention of the legislature is clear from the words: "all his witnesses", which connote that these witnesses shall be examined which are of the choice of the complainant and which he intends to rely upon. The intention of the legislature is not that complainant may be compelled to examine all his witnesses rather only these witnesses were to be examined who can be said to be his witnesses. This is in consonance with Section 134 of the Indian Evidence Act which lays down in clear terms that no particular number of witnesses, is necessary for proof of any fact.
17. The mandate is however, that in an enquiry under sub-section (1) of Section 202, Cr.P.C, the Magistrate shall call upon the complainant to produce all his wit nesses and examine them on oath. This enquiry is done by the Magistrate when he is not satisfied from the statement of the complainant and the witnesses present under Section 200, Cr.P.C. The mandate is not for the complainant to produce all witnesses. He has option to examine any number of witnesses mentioned in the list which he intends to rely. All of the witnesses mentioned in the list of the complainant need not be examined and he has an option to give up any of the witnesses of the list.
18. On a plain reading of this proviso, it is clear that it mandates (i) that the Magistrate shall call upon the complainant to produce all his witnesses and (ii) shall examine them all. The underlying principle behind it is that since the offence alleged is of serious nature and is to be tried by Court, of Session, and there being no material before the Court as in a police case, it is necessary that all the witnesses whom the complainant intends to examine in support of his case should be examined in the enquiry under Section 202, Cr.P.C. so that the accused will be aware of the evidence against him. The entire scheme is that an accused person does not come in the picture at all till the process is issued. The. object of the proviso apended to sub-section (2) of Section 202, Cr.P.C. is not only to enable the Magistrate to determine whether process should be issued against the accused but also to confer a statutory right upon the accused, namely, that in a case exclusively triable by the Court of Session, no process should be issued until the Magistrate has called upon the complainant to produce all his witnesses. The object of giving this statutory right to the accused is to give him sufficient information of the case against him and to prepare his defence, which right is further ensured by the provisions of Section 208(i), Cr.P.C. which enjoins the Magistrate to furnish to the accused free of cost copies of statement of all persons recorded gander Section 202. This latter right would be defeated where the Magistrate does not examine any witness as required by the proviso. In such a case, he would be deprived of the opportunity to point out discrepancy, if any, in the evidence given in the Court of Session and at the enquiry under the Proviso to Section 202(2). Though the Magistrate is bound to call upon the complainant to produce all his witnesses and examine them on oath but it does not take away the right of the complainant to give up any of the witnesses. (See Jumman v. State of U.P., 1988 Cri LJ 199), though mentioned in his list, for the proviso does not empower the Magistrate to prescribe the number of witnesses to be examined by the complainant or to prevent the complainant to withdraw any witnesses from his list. When he does so, such witness ceases to be his witness within the purview of the proviso. The accused has no doubt right to cross-examine the witnesses examined by the complainant but. he cannot urge that the proceeding under Section 202 shall be quashed because, the Magistrate did not examine the witnesses given up by the complainant (See Reddy v. Kankanti, 1977 Cri LJ 1473).
19. The witnesses required to be produced by the complainant are the witnesses which the complainant intends to examine in support of his case. The proviso only mandates that the Magistrate shall call upon the complainant to produce all his witnesses but it neither expressly nor impliedly prescribes any requirement that it is mandatory for the complainant to examine each one of the persons named in the complaint petition as witnesses and further that the Magistrate is duty bound to ensure the compliance of this requirement. The Magistrate cannot compel the complainant to examine any witness which he does not intend to examine (See Ravindra Prasad Singh v. Lilybala Singh, 1992 Cri LJ 1716.
20. The learned counsel for the applicant cited two single bench rulings of this Court namely, 1990 Cri LJ 2525 Dharamveer v. State of U.P., 1982 Cri LJ 1270, Anisa v. Banne Khan. The learned counsel of the opposite party No. 1 cited Division Bench ruling of this Court namely Dinesh Chandra Sinhav. Rahmatullah reported in 1981 ACC 313 : (1981 All LJ 344). None of the aforesaid rulings relied upon by the learned counsel for the applicant helps him.
21. In Dharamveer's case two points were raised. Firstly, that other witnesses mentioned by the complainant as witnesses of- the occurrence were not examined under Section 202, Cr.P.C. and secondly that the statement of the doctor does not indicate that any injury sustained by the prosecution side could be sufficient in the ordinary course of nature to cause death. The learned single Judge has made observations about a wisdom behind enacting the proviso to sub-section 2 of Section 202, Cr.P.C. and the duty of the Magistrate under said sub-section. It was on the second point that learned Judge partly allowed the petition as the doctor had not said in the statement that any of the injuries sustained were likely to cause death or were in the normal case suspected to cause that harm.
Thus, the Magistrate's order was quashed in so far as he had summoned the petitioner under Section 307, IPC but, it was upheld in so far as it related to Sections 147, 148, 149, 323 and 324, I. P. C.
22. In case of Anisa relied upon by the learned counsel for the applicant, it has been held that all the witnesses should be examined before summoning the accused, if the offence complained of was exclusively triable by the Court of Session. In that case also, two submissions were made. Firstly it was submitted that the "Magistrate could not have summoned the accused persons. However, the statements under Section 200 and 202, Cr.P.C. were not Annexed, hence his Lordship did not find that prima facie any case was , disclosed by the complaint. Next submission was that the offence being under Section 364, IPC any order summoning accused persons could not ha