JUDGMENT : S. Wasiuddin, J. 1. The petitioner in this case is the complainant in a criminal case instituted on his complaint pending in the Court of the Munsif Magistrate and this application in revision is directed against an ORDER :dated the 2nd August, 1969. The relevant facts, which have given rise to this application may be briefly stated as follows: The petitioner filed a petition of complaint on the 4th April, 1969, against the present opposite party for an offence under Section 420 of the Indian Penal Code in the Court of Sub-divisional Magistrate, Nawadah. The allegation in the complaint petition was to the effect that the opposite party was not executing the deed of sale with respect to the properties agreed to be sold to the petitioner under a registered deed of Baibeyana and for which the petitioner had already paid a sum of Rs. 2,790/-. The Sub-divisional Magistrate took cognizance of the case against the opposite party and transferred the case to the Court of Shree D.P. Sinha, Munsif Magistrate, First Class, Nawadah, where the case is pending. 2. It has been stated in the application that the opposite party has been an Honorary Magistrate at Nawadah for several years. During the pendency of the criminal case in the Court of the learned Magistrate, on the 16th June, 1969, the opposite party filed his bail bond and, after his appearance the case was adjourned to the 27th June, 1969, on which date the opposite party filed a petition making a prayer that he may be discharged under the provisions of Sub-section (2) of Section 253 of the Code of Criminal Procedure, on the ground that the allegations on which the complaint had been filed were baseless. The learned Magistrate considered the petition and then on the 3rd July, 1969, passed an ORDER :to the effect that unless he examines some witnesses for the prosecution under Section 252 of the Code, he cannot discharge the accused and he ORDER :ed for summoning the petitioner for his evidence on the 2nd August, 1969. The petitioner thereafter preferred an application in revision, being Criminal Revision No. 79 of 1969, in the Court of the Sessions Judge of Gaya. The petitioner thereafter preferred an application in revision, being Criminal Revision No. 79 of 1969, in the Court of the Sessions Judge of Gaya. The petitioner was aggrieved with this part of the ORDER :of the learned Magistrate that he ORDER :ed that the complainant be examined on the 2nd August, 1959, and thereafter the petition for discharge will be considered. The learned Sessions Judge rejected the petition as he did not consider it to be a fit case for a reference to be made to the High Court, but, towards the concluding portion of his ORDER :, he referred to the provisions of Sub-section (1) of Section 252 of the Code of Criminal Procedure, and then he further observed that in the circumstances the learned Magistrate should consider the desirability of considering other evidence which may be adduced in support of the prosecution case on the date fixed. 3. As stated above, the date fixed in the case was the 2nd August, 1969, and on that date a petition was filed on behalf of the petitioner (complainant) to the effect that he was ill and he made a prayer that summonses be issued to his witnesses for the next date. The learned Magistrate, by his ORDER :dated the 2nd August, 1969, rejected the prayer of the petitioner for summoning the witnesses of the complainant on the ground that the complainant would have to examine himself first and thereafter the learned Magistrate will consider the desirability of summoning his other witnesses. The petitioner, thereafter again preferred a revision application before the learned Sessions Judge of Gaya, which was registered a Criminal Revision No. 110 of 1969. The learned Sessions Judge in this revision also did not consider it to be a fit case for reference to the High Court, as the ORDER :of the learned Magistrate was not contrary to law, and, therefore, he dismissed the revision application. But the learned Sessions Judge in this ORDER :also invited the attention of the learned Magistrate to the decision in the case of (1) Gajadhar Singh V. The Emperor (A.I.R. 1943 Pat 424), wherein it was held that it is open to the prosecution to examine their witnesses in any ORDER :they choose. But the learned Sessions Judge in this ORDER :also invited the attention of the learned Magistrate to the decision in the case of (1) Gajadhar Singh V. The Emperor (A.I.R. 1943 Pat 424), wherein it was held that it is open to the prosecution to examine their witnesses in any ORDER :they choose. After the dismissal of this application, the petitioner, has come to this Court in revision and, as stated above, this application is directed against the ORDER :dated the 2nd August, 1969. It may be also mentioned here that another date fixed in the case was the 10th September, 1969, on which date also the learned Magistrate stuck to his previous ORDER :that the complainant should be examined first. 4. The impugned ORDER :is really in two parts. The first part of the ORDER :relates to the examination of the complainant and reading this ORDER :along with the ORDER :dated the 3rd July, 1969, it, appears that the learned Magistrate has been of the view of that the complainant must examine himself first and probably he has been under the impression that this he can do under the provisions of Sub-section (1) of Section 252 of the Code of Criminal Procedure. The second part of the ORDER :relates to the summoning, of the other witnesses to be examined on behalf of the complainant and as far as this part of the ORDER :is concerned, the learned Magistrate has not only postponed the issue of summonses but has also made the issue of summonses to the other witnesses subject to his consideration of the matter after the examination of the complainant. 5. It has been urged by the learned counsel appearing for the petitioner that the learned Magistrate has taken an erroneous view of the matter, because according to the sections concerned and the various decisions of the Court, the Magistrate cannot insist that the complainant should examine himself first and that under Sub-section (2) of Section 252 of the Code, the Magistrate, unless he finds that there is good reason for not allowing the prayer, has to issue the summonses. 6. 6. It has been urged on the other side by learned counsel for the opposite party that the ORDER :of the learned Magistrate is quite proper, because it is in consonance with the provisions of Sub-section (1) of Section 252 of the Code of Criminal Procedure and secondly in the present circumstances of the case, that was the proper ORDER :which the learned Magistrate could have passed. 7. It may be mentioned here that the matter was whether the opposite party should be discharged or not and in this connection it has been urged by learned counsel for the opposite party that the contract for sale had been entered into by the father of the opposite party and; therefore, the complainant should be examined first to see whether there should be a discharge, without the examination of the other witnesses or not. It may also be mentioned here that it has also been urged by the learned counsel for the opposite party that in the circumstances of the case, it was a matter of discretion of the learned Magistrate and in a revision this Court should not ordinarily interfere with the discretion of the Magistrate, unless it has been improperly and injudiciously exercised and it has been submitted that there has been a proper exercise of the discretion by the learned Magistrate. 8. After having stated in brief the facts of the case and the submissions which have been made, the question which arises for consideration is, firstly, whether the ORDER :of the learned Magistrate dated the 2nd August, 1969, can be regarded as an ORDER :in any way contrary to law or it is an ORDER :in exercise of the discretion of the Magistrate and whether the discretion has been exercised judiciously and properly or not. It is, therefore, first of all, necessary to examine the provisions of Section 252 of the Code. 9. Section 252 of the Code of Criminal Procedure provides-- (1) In any case instituted otherwise than on a police report, when the accused appears or is brought before a Magistrate, such Magistrate shall proceed to hear the complainant (if any) and take all such evidence as may be produced in support of the prosecution: Provided that the Magistrate shall not be bound to hear any person as complainant in any case in which the complaint has been made by a Court. (2) The Magistrate shall ascertain, from the complainant or otherwise, the names of any persons likely to be acquainted with the facts of the case and to be able to give evidence for the prosecution and shall summon to give evidence before himself such of them as he thinks necessary. Sub-section (1) no doubt lays down that the Magistrate shall proceed to hear the complainant (if any) and take all such evidence as may be produced in support of the prosecution, a very important question arises for consideration as to what does the expression "hear the complainant" mean. If it means the examination of the complainant as a witness then of course the ORDER :of the learned Magistrate is quite proper, but if the expression "hear the complainant" does not mean necessarily the examination of the complainant, then naturally there should not and cannot be an insistence on the part of the court that the complainant should be brought to the witness box first. 10. I may in this connection refer to a Division Bench decision of the Calcutta High Court in the case of (2) Santram Mandal V. The Emperor (A.I.R. 1929 Cal 229), which was in respect of the provisions of Section 208 of the Code of Criminal Procedure. It may be mentioned that the words exactly are the same in Section 208 as in Section 252(1) of the Code, because there also the provision is to the effect that "In any proceeding instituted otherwise than on a police report, the Magistrate shall, when the accused appears or is brought before him, proceed to hear the complainant, if any", and take all such evidence as may be produced in support of the prosecution. Their Lordships of the Calcutta High Court in that decision considered as to what is the meaning of the expression "hear the complainant" and it was observed that there is a palpable difference between "hearing the complainant" and "examining him." It was also laid down that "Section 208(1) enjoins that the complainant (if any) shall be heard. Their Lordships of the Calcutta High Court in that decision considered as to what is the meaning of the expression "hear the complainant" and it was observed that there is a palpable difference between "hearing the complainant" and "examining him." It was also laid down that "Section 208(1) enjoins that the complainant (if any) shall be heard. It is not the examination of the complainant that is necessary under Section 208(1), but only that he shall be heard." Learned counsel for the petitioner, on the wordings of the Section and in view of the decision of the Calcutta High Court has submitted that the words 'hear the complainant' do not mean examination of the complainant and at best could mean that the complainant has a right of audience. 11. Learned counsel for both the parties have not been able to cite any decision of our Court on this point. But there are some decisions of this Court and other courts which laid down clearly that it is up to the choice of the complainant to examine himself first or not. I, may, in this connection, refer to a Division Bench decision of this Court in the case of (1) Gajadhar Singh V. The Emperor (A.I.R. 1943 Pat 424). There also a question arose whether any adverse inference could be drawn if a particular witness, such as the complainant, is called in the last, and, their Lordships were pleased to observe that it was open to the prosecution to examine their witnesses in any ORDER :they choose and no inference adverse to the prosecution should be drawn from the mere fact that they examined a particular witness as their last witness, particularly, when it is not suggested that the accused has suffered any prejudice by the late production of that witness. The question of prejudice here does not arise, because the case is itself at a very initial stage and no witness has been examined. Though in this decision, directly the question as to what the words 'hear the complainant' occurring in Sub-section (1) of Section 252 of the Code of Criminal Procedure mean has not been decided, but it has been laid down that it is open to the prosecution to examine their witnesses in any ORDER :they choose, and this naturally means that the complainant cannot be forced to be examined first. 12. 12. Reliance has also been placed on a decision in the case of (3) Motilal Chakravarty V. The King (A.I.R. 1949 Cal 586). It was held in this case that the Magistrates should insist that cases are presented before them intelligently and properly and should not allow the prosecution deliberately to keep witnesses back until practically the last days in the trial. This decision is also not helpful in interpreting Sub-section (1) of Section 252 of the Code, and, rather, it shows that it is not necessary that the complainant should be examined first. 13. Learned counsel for the petitioner has also referred to a decision of the Supreme Court in the case of (4) Darya Singh and others V. The State of Punjab (A.I.R. 1965 SC 328). The facts of the case are quite different, but he has relied on certain observations of their Lordships of the Supreme Court to the following effect:-- ....In a murder case, it is primarily for the prosecutor to decide which witnesses he should examine in ORDER :to unfold his story. It is obvious that prosecutor must act fairly and honestly and must never adopt the device of keeping back from the court eye-witnesses.... It appears, therefore, that according to the Supreme Court, even in a murder trial it is up to the prosecution to decide in what ORDER :the witnesses should be examined, but certainly it should be in such a manner that no prejudice is caused. 14. I may also refer here to another decision of a Division Bench of this Court in the case of (5) Kewal Ram V. Emperor (A.I.R. 1935 Pat 5515), where their Lordships held that although Section 252 of the Code of Criminal Procedure makes it incumbent upon a Magistrate to hear the complainant, it does not vitiate a conviction in which the complainant has not been examined. Reference has also been made, during the course of arguments, to a decision in the case of (6) Jankinath Chakraborty V. Prakash Chandra Dutta and others (A.I.R. 1966 Tri 4), wherein it was held that on a plain reading of Section 252 of the Code it is clear that the prosecution witnesses can be examined at different stages and the law does not give the accused any right to take the plea of prejudice simply because the prosecution wants to examine other witnesses whose names have been shown in the list of witnesses. 15. On a consideration of these various aspects of the matter, I am of the view that the expression "hear the complainant" occurring in Section 252 of the Code of Criminal Procedure does not necessarily imply the examination of the complainant and in view of the other decisions which I have referred to above, it is for the prosecution to decide in which ORDER :the witnesses would be examined, but, certainly the prosecution has to act fairly and honestly and in such a manner as it does not cause prejudice to the accused. The ORDER :of the learned Magistrate, therefore, on his insistence to examine the complainant first does not appear to be a proper ORDER :. Even if the matter was within his discretion, it does not seem to have been a proper and judicious exercise of the discretion. 16. Learned counsel for the opposite party also submitted that in such matters, this Court should not interfere and reliance has been placed on a decision in the case of (7) Thommen Joseph V. Poulose Varkey (A.I.R. 1957 TC 234), but the facts in the Travancore Cochin case were quite different. In the result the revision application is allowed and the ORDER :of the learned Magistrate dated the 2nd August, 1969, is set aside with a direction that the learned Magistrate would consider the prayer of the complainant for the examination of his witnesses and he would not insist on the examination of the complainant first, and, after taking all the evidence which is adduced before the learned Magistrate, he will consider the prayer made by the accused for discharge. Application allowed