JUDGMENT V.D. Chaturvedi, J.
1. The allegations against the petitioners are that they have entered into the house of the complainant (opposite party No. 2), have fired a: 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 net under the command of the complainant. They are not the witnesses of the complainants 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 is bound to produce only those witnesses of facts whom he intends to produce in the court of Sessions. The witnesses of fact who are not produced under Section 200 or 202 Cr.P.C, cannot be produced by him, in the court of Sessions. The complainant is not bound to produce those witnesses of fact, whose names are, though mentioned in the complaint but who are not intended to be produced by him in the Court of Sessions.
5. In view of what has been discussed above, I find no illegality in the impugned order. The petition is devoid of merit. It is therefore dismissed in limina.
6. Looking to the facts and circumstances of the case and that proceedings were initiated on a complaint and that no fire arm injury was sustained by any person, it is provided that if the petitioners appear before the court below within 14 days and apply for bail, their bail application may be considered and disposed of expeditiously by the courts below.