JUDGMENT By Court- This application by Promod Gope, one of the accused persons, under Articles 226 and 227 of the Constitution of India is directed against an order dated 11th of January 1975 passed by the Judicial Magistrate, 1st class (respondent no. 1) directing Bindeshwari Prasad Yadav (respondent no, 2), the complainant, to produce witnesses to be examined under section 202 (2) of the new Criminal Procedure Code, 1973. 2. In order to appreciate the points involved in this application it will be necessary to state, briefly, the facts and some relevant dates. On 28th of January 1971 respondent no.2 filed a petition of complaint before the Sub-divisional Magistrate, Biharsharif, alleging therein that on 13th of November 1967, while Kashi Gope, brother of respondent no. 2, went to see his field in Belwa Kbanda the petitioner along with seven other accused persons assaulted him with deadly weapons. Kashi Gope had given a fard beyan on the very day of occurrence, that is, 13th of November 1967, to the Asthawan Police officer in the Bihar hospital. The police, however, submitted final report dated 3rd of December 1967. On 14th of December 1967 a protest petition was filed by Kashi Gope. On 30th of July 1968 the final report given by the police was accepted, and the protest petition tiled by Kashi Gope was dismissed. Kashi Gope later filed Criminal Revision no. 187 of 1968 before the Sessions Judge, Patna. Subsequently, Kashi Gope was killed on 1st of December 1968. Thereafter, when the criminal revision was placed before the Additional Sessions Judge on 22nd of December 1970, he directed Kashi Gope to file a supplementary complaint petition. Since Kasbi Gope, it appears, was already killed, respondent no. 2, who is a brother of Kasbi Gope, filed a supplementary complaint petition on 25th of January 1971.On 28th of January 1971 respondent no, 2 was examined on solemn affirmation under section 200 of the old Criminal Procedure Code, and cognizance was taken by the Sub-divisional Magistrate under sections 307, 324, 147 and 148 of the Indian Penal Code against the petitioner and the other seven accused persons. The Sub-divisional Magistrate transferred the case to Shri B. N. Sinha, Munsif Magistrate, 1st Class, for disposal, on 19th of February 1971. The Sub-divisional Magistrate transferred the case to Shri B. N. Sinha, Munsif Magistrate, 1st Class, for disposal, on 19th of February 1971. Shri B. N. Sinha ordered for issuance of summons against one of the accused persons as only one copy of the complaint was then available before him. Later, summonses were issued as against the rest of the accused. On 22nd of April 1971, non-bailable warrants of arrest were also issued against the accused persons. Submission was made on behalf of respondent no. 2, 8S it appears from the order sheet dated 18th of July 1974, that the offence under section 307 of the Indian Penal Code was exclusively triable by the court of Session. Therefore the petitioner along with the other accused persons should be committed to the Court of Session to face their trial under section 307. Thereafter, the impugned order was passed by the learned Judicial Magistrate, Shri P. Xaxa, respondent no.1. 3. Learned counsel appearing on behalf of the petitioner has assailed the impugned order, chiefly, on the ground that in the instant case cognizance was taken under the old Act, on 28th of January 1971, and later summonses and warrants were also issued under section 204 of the old code of Criminal Procedure Respondent no.1 has erred in passing the impugned order under the provisions of the new Code, that is, under section 202 (2) of the Code. Learned counsel for the petitioner drew our attention to the impugned order which is in Hindi. Learned counsel for the petitioner drew our attention to the impugned order which is in Hindi. It reads thus :- ^^eqnbZ mifLFkr gSA nks vfHk;qDr mifLFkr gSA ,d ds rjQ ls odkyru dk vkosnu i= fn;k x;k gSA bls vkt Hkj ds fy, Lohdkj fd;k x;kA bl ds’k esa /kkjk 307 Hkk- n0 fo0 esa Hkh laKku fy;k tk pqdk gSA pqds ;g /kkjk ftyk ,oa l= U;k;k/kh’k /kkjk ijh{k.kh; gSA ,slh ifjfLFkfr esa fQygky /kkjk 208 u;s n0 iz0 l0 dks ens utj j[krs gq, /kkjk 202 u;s n0 iz0 l0 ¼2½ ds varxZr eqnbZ vius xokgksa dks mifLFkr djs rFkk vxys fnukad 3-3-75 dks eqnbZ xokg mifLFkr djs(** The relevant provisions, for consideration of the submission of learned counsel for the petitioner, of Section 202 of the New Code may be stated: "202 (1) Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance or 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 an) 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 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. (3)……….” Learned counse1 emphasised that respondent no.1 could not have passed an order calling upon the complainant, namely respondent no.2, to produce all his witnesses and examine them on oath, because according to him, be could have done so only if the summonses or the warrants were not issued. (3)……….” Learned counse1 emphasised that respondent no.1 could not have passed an order calling upon the complainant, namely respondent no.2, to produce all his witnesses and examine them on oath, because according to him, be could have done so only if the summonses or the warrants were not issued. As pointed out earlier, in this case processes and warrants were already issued on 19th of February 1971. Learned counsel further pointed cut that the provisions contained under section 202 of the new Code as well as in the old code under the said section are substantially the same, except that in the new code under section 202 (2) a proviso has been added. The said proviso we have already quoted above. Learned counsel contended that the impugned order amounts to recalling the order of issuance of summonses and warrants against the accused persons which according to him, cannot be done at this stage by respondent no.1. In order to find support to his contention he has relied on a Bench decision of this Court in Mr. Sanjlia V. Mt. Juyu where Jamuar, J., for the Court observed at Page 76 in paragraph 8 thus :- "Section 202 of the Code of Criminal Procedure provides that a Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance, or which has been transferred to him under S. 192, may, if he thinks fit, for reasons to be recorded in writing, postpone the issue of process for compelling the attendance of the person complained against, and either inquire into the case himself or direct an inquiry or investigation to be made by any Magistrate subordinate to him. This section clearly contemplates that the Magistrate before whom the complaint has been filed and who has received the complaint may postpone the issue of process and direct an enquiry to be made. This section clearly contemplates that the Magistrate before whom the complaint has been filed and who has received the complaint may postpone the issue of process and direct an enquiry to be made. It is but natural that the Magistrate who has passed the first order may, for reasons good and sufficient, rescind that order but not if the case has gone beyond the stage of rescission, as for example, where summonses have issued and served, or warrants of arrest have issued and served: It is not contemplated, in my opinion, that another Magistrate who had neither received the complaint nor heard the complainant on solemn affirmation should rescind the order passed by the Magistrate who had received the complaint and heard the complainant on solemn affirmation and that too after summonses as directed by the first Magistrate had been issued and served" 4. Learned counsel further submitted that in the instant case the order dated 10th of July 1974 and the subsequent orders, including the impugned order, do not indicate that respondent no 1 had passed any order on submissions made by respondent no.2 regarding committing the case to the court of Sessions. He further emphasised that none of the orders could have been passed in the instant case under the new Code as, according to him, the enquiry under Chapter XVIII of the old Cede was not pending before him when the new Code came into force on 1st of April 1974. In this connection, learned counsel referred to the provisions contained under section 484 of the new Code, the relevant portion of which is to this effect: "484 (1) The Code of Criminal Procedure, 1898, is here by repealed. In this connection, learned counsel referred to the provisions contained under section 484 of the new Code, the relevant portion of which is to this effect: "484 (1) The Code of Criminal Procedure, 1898, is here by repealed. (2) Notwithstanding such repeal (a) if immediately before the date on which this Code comes into force, there is any appeal, application, trial, inquiry or investigation pending, then, such appeal, application, trial, inquiry or investigation shall be disposed of, continued, held or made, as the case may be, in accordance with the provisions of the Code of Criminal procedure 1898, as in force immediately before such commencement, (hereinafter referred to as the old Code), as if this code had not come into force provided that every inquiry under Chapter XVIII of the Old Code, which is pending at the commencement of this Code, shall be dealt with, and disposed of in accordance with the provisions of this Code", 5, On the other hand, learned counsel appearing all behalf of respondent no. 2 has contended that in the present case no prejudice is being caused to the petitioner and the other accused. Under the impugned order, according to the proviso to sub-section (2) of section 202 of the Code, directions were made to the complainant to produce all his witnesses and examine them On oath, because they would be committed to the Court of session, as obviously, one of the offences alleged to have been committed by the petitioner and the other accused persons was one under section 307 of the penal Code, which is triable exclusively by the Court of Session either by the new Code or by the old Code. Learned Counsel for respondent no. Learned Counsel for respondent no. 2 drew our attention to the provisions contained under section 228 (1) of the new Code, which provides, inter alla- "228 (1) If, after such consideration and hearing as aforesaid, the Judge is of opinion that there is ground for presuming that the accused has committed an offence which- (a) is not exclusively triable by the Court of Session, he may, frame charge against the accused and, by order, transfer the case for trial to the Chief Judicial Magistrate and thereupon the Chief Judicial Magistrate shall try the offence in accordance with the procedure for the trial of warrant cases instituted on a police report," On the basis of the said provision he submitted that the Court of Session can examine once again whether it is triable by the Court of Session or not. If it is not triable by the Court of Session, the Judge can direct the magistrate to try the offence according to the procedure for the trial of warrant cases. 6. In our opinion, the submission of learned counsel for respondent no. 2 in this regard is sound. Even if it be assumed that an irregularity has been caused in this case, in our opinion, the said irregularity is also curable under the provisions contained under section 537 of the old Code of Criminal Procedure, which correspond to the provisions of section 465 of the new Code. It may be noticed that the provisions contained under those sections are wide enough to include any enquiry or order proceedings under the Code. The only test, however, in such cases is as to whether prejudice has been caused to the petitioner or the other accused. In our opinion, no prejudice has been caused to them. Besides, the observations made in Mt Sanjha's Case relied upon by learned counsel for the petitioner, are not applicable, on the facts and circumstances of the instant case. It may be observed that in that case as stated in paragraph 3 of the judgment, the Magistrate had actually recalled the order of Mr. B. P. Srivastava which was passed on 24 of March 1955 summoning the accused persons. In the instant case, there has been no such order of recall with regard to issuance of summons and the warrants against the Act, used persons. B. P. Srivastava which was passed on 24 of March 1955 summoning the accused persons. In the instant case, there has been no such order of recall with regard to issuance of summons and the warrants against the Act, used persons. Now, the next question, therefore, arises as to whether in the instant case the order could not have been passed under the provisions contained under the new Code. Reference may also be made to section 208 of the old Cede, the relevant portion of which reads thus: "208 (J) 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 in manner hereinafter provided all such evidence as may be produced in support of the prosecution or in behalf of the accused, or as may be called for by the Magistrate. (2) The accused shall be at liberity to cross examine the witnesses for the prosecution, and in such case the prosecutor may re-examine them:” Therefore, according to the provisions contained under the old Code also, respondent no. 1 could have directed respondent no. 2 to produce his witnesses and examine them on oath. It may be noticed that the provisions contained under section 208 of the old Code falls within Chapter XVIII of the Code. The proviso to sub-section (2) (a) of section 484 of the new Code clearly lays down that every inquiry under Chapter XVIII of the old code pending at the commencement of the new Code would be dealt with and disposed of in accordance with the provisions of the new Code. Examined from that point of view also we do not find that any grave irregularity has been committed by respondent no. 1 while passing the impugned order, justifying interference by us under writ jurisdiction. 7. In the result, this application is dismissed. We direct respondent no I. or his Successor in office to proceed now in accordance with Jaw. Application dismissed.