- (1.) U. S. Tripathi, J. This revision has been directed against the order dated 18-12-1997 passed by IVth ACJM, Mathura in Criminal Case No. 6/11/96 summoning the applicants under Sections 147, 148, 149, 302 and 201, IPC for trial.
(2.) THE opposite party No. 1 Dev Swaroop lodged a report at P. S. Sahpau, District Mathura on 9-4-1995 at 9. 30 a. m. with the allegations that on the night inter vening 8/9-4-1995 at about 3. 30 a. m. his nephew Bhudev was murdered while he was sleeping. THE report was, however, lodged against unknown persons. THE police after investigation submitted final report. THE complainant filed protest peti tion. THE learned Magistrate rejected the final report and ordered for registration of protest petition as a complaint and directed the complainant to adduce evidence. THE order of registration of complaint dated 19-10-1996 was chal lenged in Criminal Revision No. 408 of 1996 by the opposite party No. 1. THE learned Sessions Judge rejected the above revision, vide order dated 18-2-1997. THEreafter, the complainant examined himself under Section 200, Cr PC. Smt. Barfi Devi (P. W 1), Bhagwan Singh (P. W. 2), Hari Shankar (P. W 3) and Dr. B. S. Agnihotri (P. W 4) under Section 202, Cr PC, on perusal of above statements under Sections 200 and 202, Cr PC, the learned Magistrate came to the conclusion that there is prima facie case against the ap plicants for proceeding with the offences Punishable under Sections 147, 148, 149, 02 and 201, IPC. With these findings he summoned the applicants under said Sec tions by the impugned order dated 15-12-1997. The above summoning order has been challenged in this revision. Heard Sri Tej Pal, learned Counsel for the applicants and the learned A. G. A. None appeared from the side of opposite party No. 1 despite service and filing of appearance slip by Shri Rahul Bhargava, Advocate. The only point, which was pressed by the learned Counsel for the applicants was that the complainant had given list of, 10 witnesses, but examined only 4 wit nesses and had thus not complied the requirement of proviso to Section 202 (2), Cr C by not examining all the witnesses and therefore, summoning order is illegal.
(3.) IT is not disputed that complainant had given list of as many as ten witnesses and had examined only four witnesses of fact including him and Doctor and ex amined, vide order of the Magistrate dated 30-9- 1997. The proviso to Section 202 (2), Cr PC says that provided that if it appears to the Magistrate that the offence com plained is triable exclusively by the Court of Sessions, he shall call upon the com plainant to produce all his witnesses and examine them on oath. The above proviso was interpreted by this Court in the case of Jai Nath and others v. State of U. P, ACR 1987 (Vol. XI) 536, and it was held that the word "his witnesses" occurring in the above proviso means those witnesses who are of the choice of the complainant or those wit nesses who can support the case of the complainant or on whom the complainant places reliance. It is not that the Magistrate must direct the complainant to examine all the witnesses rather only those witnesses may be examined who were of the choice of the complainant or those witnesses who supported the prosecution case and in whom the complainant reposes confidence. In case certain number of wit nesses have been examined, the Magistrate can put a question as to whether they are the only witnesses out of the list of witnesses given by the com plainant, whom he wants to examine, and thereby ascertain the number of witnesses to be examined. Therefore, if the com plainant decided to examine only some of the witnesses of the list, the Court must ascertain that those were all the witnesses of the complainant. In the order under revision there is nothing to indicate that the com plainant had informed the Court that he had examined all his witnesses and this fact had to be ascertained by the Magistrate.;