JUDGMENT Umeshwar Pandey, J.
1. Heard learned counsel for the petitioners, learned A.G.A. and the learned counsel appearing for the complainant.
2. This petition under Section 482 Cr.P.C. is directed against the order of Magistrate dated 22.12.2004 and also against the order dated 11.7.2005 passed by the Addl. Sessions Judge in his revisional jurisdiction.
3. An F.I.R. was lodged from the side of the respondent No. 2 against the petitioners imputing allegations against them of the offences punishable under Sections 457, 380 and 436 I.P.C. It was stated in the F.I.R. that the accused persons in the morning of 18.2.2003 came to informant's shop with burning Mashal and took away all the articles kept therein and thereafter set fire to it. On these allegations, the police registered a case under those offences and investigated the matter. Investigation concluded and the police Submitted final report whereupon the respondent No. 2 preferred protest petition before the Magistrate who treating it a criminal complaint called upon the complainant to adduce evidence. The complainant examined himself under Section 200 Cr.P.C. and also examined his brother Vinod Kumar under Section 202 Cr.P.C. and closed the evidence. It was thereafter that the impugned order dated 22.12.2004 was passed by the Magistrate taking cognizance in the matter and summoning the petitioners-accused for further proceedings. This order of the Magistrate was challenged in revisional jurisdiction before the Sessions Judge in Criminal Revision No. 100 of 2005. It was dismissed, vide impugned order dated 11.7.2005 by the Addl. Sessions Judge.
4. The learned counsel appearing for the petitioners has Submitted that in the present matter the Magistrate has committed initial mistake of procedure rendering his order to summon the accused and proceed with the case, as wholly illegal and untenable in law. It is not a case in which the Magistrate has straightway taken cognizance of the case under Section 190(b) of the Code of Criminal Procedure, but instead, he had proceeded under Chapter XV of the Code and treated the protest petition of the respondent as a criminal complaint and the cognizance has been taken under Section 190(a) of C.P.C. In such criminal complaint the proviso appended to Sub-sec (2) of Section 202 Cr.P.C. requires that if it appears to the Magistrate that the offence complained of is triable exclusively by the court of Sessions, he shall call upon the complainant to produce all his witnesses and examine them on oath. The learned counsel, thus, emphasized that in the present case the Magistrate did not examine all the witnesses whose names were disclosed either in the F.I.R. or in the complaint, but has simply examined himself and his brother. This procedure adopted by the Magistrate is faulty in view of the aforesaid proviso of Sub-sec (2) of Section 202 of the Code.
5. Replying to the aforesaid piece of argument, the learned counsel representing respondent- No. 2 has Submitted that non-compliance of the proviso to Sub-sec (2) of Section 202 Cr.P.C. by the Magistrate does not vitiate the case nor the further trial and unless such non-compliance prejudices the accused, as such. The mandate of the proviso is not absolute. He has also Submitted that the enquiry envisaged in Chapter XV of the Code is discretionary only. Such enquiry is not an indispensable course for issue of process against the accused. In this context the learned counsel has placed reliance on the case of Rosy and Anr. v. State of Kerala and Ors., 2000 (40) ACC 444 (SC).
6. As from the narrated facts it is obvious that the criminal complaint case since it also relates to the offence punishable under Section 436 I.P.C. it is a case exclusively triable by a court of Sessions. The proviso attached to Sub-sec (2) of Section 202 Cr.P.C. reads:-
"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."
7. The aforesaid wordings of the proviso have been made Subject of interpretation in the said case of Rosy (supra) and the Hon'ble Apex Court has in very specific words has held that in the complaint cases involving offences exclusively triable by a Court of Session if the Magistrate decides to examine witnesses on oath he has to call upon the complainant to produce all his witnesses and examine them on oath. It would, however, also depend upon the facts of each case depending upon the prejudice caused to the accused by such non-compliance of the said proviso and such objections have to be taken at the earlier stage of the case when the charge is framed by the Sessions Court or even before that. It has also been opined by the Hon'ble Apex Court that the statute though does not expressly provide for nullification of the order as a consequence of non-compliance of the proviso, but provides that unless prejudice is caused any final order passed in such matter by a trial court (Sessions Court) is not to be set aside. Thus, it has been concluded by the Hon'ble Supreme Court that when the Magistrate during the enquiry under Section 202 Cr.P.C. examines the witnesses on oath, as for as possible the proviso is to be complied with, but this mandate is not absolute.
8. In the present case as stated above, the complainant during the enquiry conducted by the Magistrate has examined himself under Section 200 Cr.P.C. and his.brother, under Section 202 Cr.P.C. Undisputedly, in the present case there are more than one witnesses and they have not been examined during the aforesaid enquiry. The case is exclusively triable by a Sessions Court. In such cases the Magistrate is not empowered to dispense with the enquiry if he has examined the complainant under Section 200 Cr.P.C. In the present case, the Magistrate has actually commenced the enquiry, but he has not completed it in letter and spirit of the proviso to Sub-sec (2) of Section 202 of the Code. Section 209 of the Code provides for the Magistrate to commit the case to the Court of Sessions after complying with the provisions of Section 207 or 208 of the Code. After the committal the trial starts as envisaged in Chapter XVIII o the Code. If a case instituted on complaint is committed to the Court of Sessions without complying with requirements of Clause (i) of Section 208 of the Code, it would not be possible for the Public Prosecutor to know in advance what evidence he can adduce to prove the guilt of the accused. The usefulness of this proviso added to Sub-sec (2) of Section 202 of the Code can be visualised for further help it provides to the Public Prosecutor and the court after the case is committed for trial. If no enquiry under Section 202 Cr.P.C. is made and the case is straightway committed to the Court of Sessions, its inevitable consequence would be that the Sessions Judge has to axe down the case at its opening stage before framing the charges under Section 227 of the Code. This proviso has been added by the Legislature on the recommendation of the Law Commission as given in its 41th report. Under the Old Code (Code of Criminal Procedure 1898) a full fledged Magisterial enquiry uses to be conducted in the committal court and at that stage only the prosecution was required to examine all the witnesses. But in the light of the Law Commission's Report when the new Code was drafted and its Bill was passed by the Parliament, it so appears that this proviso to Sub-sec (2) of Section 202 Cr.P.C. was deliberately brought in the statute for such criminal complaint cases with a view that the prosecution will have enough material at the trial stage to open its case before the court for framing of charges etc. and also to facilitate the accused facing the trial to have a sound defence for himself in the light of the evidence proposed to be advanced by the prosecution against him. It is in this view of the matter that the Hon'ble Apex Court in Rosy's case (supra) has held as below:
"At that stage, proviso further gives mandatory directions that he shall call upon the complainant to produce all his witnesses and examine them on oath. The reason obviously Is that In a private complaint, which Is required to be committed to the Sessions Court for trial, It would safeguard the Interest of the accused and he would not be taken by surprise at the time of trial and It would reveal the version of the witnesses whose list is required to be filed by complainant under Section 204(2) before Issuance of the process."
9. Thus in the above background it appears that non-compliance by the Magistrate in following the procedure as given in the proviso aforesaid may not vitiate the further proceedings in all cases, but in case it is found that such lapse on the part of Magistrate has prejudiced the accused, it would be just and proper to hold the proceedings arising from out of the order taking cognizance of the case by the Magistrate as legally improper. The reason is very obvious that if the entire evidence is recorded by the Magistrate at the stage of enquiry under Section 202 Cr.P.C. it would safeguard the interest of the accused who otherwise would be taken by surprise at the time of the trial if such evidence is advanced from the side of prosecution which he has not come across earlier. In the present case the Magistrate has not examined all the witnesses of the complaint and has closed the enquiry only with the evidence of the complainant's brother under Section 202 Cr.P.C. and by the impugned order he has taken cognizance of the case and summoned the petitioners-accused. This order if tested in the aforesaid frame of legal interpretation, it cannot be upheld. The order is palpably erroneous and the order of the Addl. Sessions Judge rejecting the revision of the petitioners preferred against the said order of the Magistrate is also incorrect in law. Consequently this petition should be allowed and the impugned orders dated 22.12.2004 passed by the Magistrate and the judgment and order dated 11.7.2005 passed by the Sessions Judge are hereby quashed and the petition is allowed.
10. It is, however, directed that the Magistrate concerned shall proceed further with the enquiry in the matter as contemplated under the proviso of Sub-sec (2) of Section 202 Cr.P.C. and after completing the same he shall pass necessary orders whether to proceed further or not to proceed in the matter, in accordance with law.