V. N. Varma, J. - (1.) THIS case has come up before us for decision in the following circumstances.
(2.) OPPOSITE party no. 1 (Rahmatullah) filed a complaint against the applicant (Dinesh Chand Sinha) and five others under sections 147, 148, 323, 325 and 307 IPC in the Court of Special Judicial Magistrate, Jaunpur. In the complaint filed by him he gave out the names; of twelve witnesses whom he intended to examine in support of his case. The learned Magistrate examined opposite party no. 1 under section 200 CrPC and four persons, more, namely, Sheo Murat, Ambika, Aman Khan and Lala under section 202 CrPC. The learned Magistrate went through the evidence of these persons and summoned the applicant and his co-accused under sections 147, 323, 325 and 307 IPC. Admittedly, the offence under section 307 IPC is triable exclusively by the Court of Session. The applicant's case is that the Magistrate's order summoning him in the case was illegal and not in accordance with law and he, therefore, filed an application under section 482 CrPC for quashing the complaint filed against him. According to him, as the case against him was triable exclusively by the court of session, the Magistrate, in view of the proviso to section 202 (2) CrPC, could not have summoned him unless he had called upon the complainant to produce all his witnesses and those witnesses had been examined by him. The application under section 482 CrPC came up for hearing before brother P. S. Gupta, J. The learned counsel for the applicant cited three cases of this Court before him in support of his contention that the proviso to sub-section (2) of section 202 CrPC was mandatory and, therefore, any non-complaince of this proviso would render the order passed by the Magistrate summoning the applicant illegal. These three rulings are (1) Hari Bans Tewari v. Hari Shanker, 1977 ACrR 187, Babu Ram v. State of U.P., 1978 ACrR 126, Mohan Singh v. Uttam Singh, 1980 Prayag Nirnai Prakashika page 246 (wrongly mentioned in the referring order as Mahabir v. State, 1980 Prayag Nirnai Prakashika page 248). On the other hand, the learned counsel for opposite party so. 1 cited one case of this Court and another of Andhra Pradesh High Court in support of his contention that even if all the witnesses mentioned in the complaint have not been examined by the Magistrate, the order passed by the Magistrate summoning the accused in a case exclusively triable by a court of session would not be illegal. These two rulings are-Sheo Prasad v. State, 1977 ACrR 314, Musara Narayana Reddy v. Kanakanti Mal Reddy, 1977 CrLJ 1473. All the cases relied upon either by the learned counsel for the applicant or by the learned counsel for opposite party no. 1 are single judge decisions. As there was difference of opinion between the Judges who decided the cases relied upon by the learned counsel for the applicant and the Judges who decided the cases relied upon by the learned counsel for opposite party no. 1 in regard to the scope of the provisions contained in the proviso to sub-section (2) of section 202 CrPC, brother Gupta, J. referred the matter to a larger Bench for interpreting the scope of the proviso to sub-section (2) of section 202 CrPC. He further wanted that thereafter we should also decide the application under section 482 CrPC filed by the applicant.
(3.) SUB-sections (1) and (2) of section 202 CrPC read as follows : 202. (1) Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance ?r 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 complained 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 examined on oath under section 200. (2) In an inquiry under sub-section (1), the Magistrate may, if he thinks fit, take evidence of witnesses on oath : Provided that if it appears to ths 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. It is clear from a plain reading of the proviso to sub-section (2) of section 202 CrPC that the Magistrate is bound to examine all the witnesses who are to be produced on behalf of the complainant before summoning the accused in cases which are exclusively triable by the Court of Session. If, therefore, a Magistrate summons am accused in a case triable exclusively by the Court of Session without examining all the witnesses who are to be produced by the complainant the order summoning the accused would be illegal. Any other interpretation would do violence to the mandatory provision contained in the proviso referred to above. We, however, want to make it absolutely clear that before summoning the accused it is not open to the Magistrate to insist upon the production of all the witnesses cited by the complainant in his complaint. He can summon the accused even after some of the witnesses cited in the complaint have been examined by the complainant but this he can do only in the event when the complainant makes it clear that the witnesses examined by him were the only witnesses on whom he intended to rely upon. If the names of some persons to be examined as witnesses are not specifically mentioned in the complaint the Magistrate will call upon the complainant to disclose their names and examine them also if he so wished or give them up if he does not want to examine them. In 1977 ACrR 314 Supra) brother Sinha J. took the view that it is legally open to the magistrate to summon the accused even when all the witnesses mentioned in the list accompanying the complaint have not been examined. We think this view of brother Sinha J. is not in accordance with law. With respect, it appears to us that brother Gupta, J. has incorrectly mentioned in the referring order that in Musara Narayana Reddy v. Kanakanti Mai Reddy, 1977 CrL J 1473 Andhra Pradesh High Court; has also taken the view that it is open to the Magistrate to summon the accused even when the complainant has not examined all the witnesses cited by him in the complaint. On the other hand, we find that Andhra Pradesh High Court has taken the same view which we are going to take in this case. In Andhra Pradesh case ten witnesses had been cited in the complaint out of whom only seven were examined by the complainant in the Court of the Magistrate. The remaining three were given up by the complainant. On the basis of the statement of the complainant and his seven witnesses the Magistrate summoned the accused. The Court found the order summoning the accused to be correct and in accordance with the proviso to sub-section (2) of Sec. 202 CrPC. It observed that it is open to the complainant to give up some of the witnesses and those witnesses that were so given up can no more answer the description of "his witnesses" within the meaning of that expression as occurring in the proviso. With respect we fully subscribe to this view of the learned Judge who decided this case. Therefore, as this things stand, it is now clear that the Magistrate can certainly summon the accused even after examining some of the witnesses mentioned in the complaint but) the complainant has to make it clear that the witnesses examined on his behalf were the only witnesses on whom he intended to rely upon. If the complainant does not make this position clear then it is not open to the Magistrate to summon the accused without examining all the witnesses either mentioned in the complaint or in the list accompanying the complaint. In our view the ratio laid down in the rulings reported in Haribans Tewari v. Hari Shanker, 1977 ACrR 187, Babu Ram v. State of U. P., 1978 ACrR 126 and Mohan Singh v. Uttam Singh, 1980 Prayag Nirnal Prakashika 246, is in accordance with law and, therefore, correct.;