- (1.) HEARD Sri Mukhtar Alam, learned counsel for the revisionists and learned AGA for the State.
(2.) THIS revision is directed against the order dated 11.7.2011 passed by A.C.J.M, Court No. 1, Bulandshahar in Complaint Case No. 350 of 2011, Dharampal Vs. Ajab Singh & another, whereby the revisionists have been summoned to face trial under Sections 307/34 and 506 IPC. Learned counsel for the revisionists submitted that after investigation, final report was submitted by police. Protest petition was filed by the complainant, which was treated as complaint. It is further submitted that all the witnesses have not been examined under Sections 202 Cr.P.C. as provided in Proviso to Section 202 (2) Cr.P.C. In Shivjee Singh Vs. Nagendra Tiwary & others, 2010 (70) ACC 607, the Apex Court has held that ; "The use of the word 'shall' in proviso to Section 202(2) is prima facie indicative of mandatory character of the provision contained therein, but a close and critical analysis thereof along with other provisions contained in Chapter XV and Sections 226 and 227 and Section 465 would clearly show that non examination on oath of any or some of the witnesses cited by the complainant is, by itself, not sufficient to denude the concerned Magistrate of the jurisdiction to pass an order for taking cognizance and issue of process provided he is satisfied that prima facie case is made out for doing so. Here it is significant to note that the word 'all' appearing in proviso to Section 202(2) is qualified by the word 'his'. This implies that the complainant is not bound to examine all the witnesses named in the complaint or whose names are disclosed in response to the order passed by the Magistrate. In other words, only those witnesses are required to be examined whom the complainant considers material to make out a prima facie case for issue of process. The choice being of the complainant, he may choose not to examine other witnesses. Consequence of such non-examination is to be considered at the trial and not at the stage of issuing process when the Magistrate is not required to enter into detailed discussions on the merits or demerits of the case, that is to say whether or not the allegations contained in the complaint, if proved, would ultimately end in conviction of the accused. He is only to see whether there exists sufficient ground for proceeding against the accused."
(3.) IN these circumstances, the complainant was not bound to examine all the witnesses under Section 202 (2) Cr.P.,C. Only those witnesses are required to be examined under Section 202 (2) Cr.P.C., which were sufficient to disclose the commission of offence against the accused person. Learned Magistrate has not committed any illegality and the summoning order does not require any interference by this Court. However, the revision is disposed of with a direction that if the revisionists surrender before the Magistrate concerned within three weeks from today and apply for bail, their prayer for bail be considered and disposed of by the courts below keeping in view Full Bench decision of this Court in the case of Amrawati and another Vs. State of U.P. 2004 (57) ALR 290 as affirmed by Hon'ble Apex Court in Lal Kamlendra Pratap Singh Vs. State of U.P. 2009 (3) ADJ 322 (SC). For a period of three weeks, no coercive steps shall be taken against the revisionists.;