JUDGMENT M. Wahajuddin, J. - The Petitioners had been summoned by the then II Additional Munsif Magistrate, Mathura, under Sections 455 and 380, Indian Penal Code , vide order dated 4-9-1981 in pursuance of a complaint filed by the opposite party, the certified copy of that order is on the record. The Magistrate has observed that on perusal of the statement under Sections 200 and 202, Code of Criminal Procedure, a prima facie case against the Petitioners u/s 455, Indian Penal Code and Section 380 Indian Penal Code is borne out. The complaint is Annexure 'A' to the petition. It has been filed u/s 395, Indian Penal Code . The incident is alleged to be of 11-2-1981 at about 5 P. M. It has been stated in the complaint that the Petitioners accompanied by labourers and police personnels forcibly entered the quarter of the complainant, caught hold of her two sons and house hold articles were removed from the quarter of the complainant and a loot of property worth Rs. 70,000/- was committed. 2. It is alleged by the Petitioners that, firstly, any prima facie case is not made out and the Magistrate could have sifted the evidence, and, secondly, the complainant did not examine all the prosecution witnesses and the complaint being u/s 395 Indian Penal Code , the Petitioners should not have been summoned, without compliance of proviso to Section 202(2) Code of Criminal Procedure, when the complaint happened to be u/s 395, Indian Penal Code and such mandatory provision has been violated. Annexure 'B' is the list of the prosecution witnesses furnished by the complainant. It would be found that some of the witnesses figuring in that list were not produced and examined. 3. The first point urged is that no prima facie case is made out on the scrutiny of the entire evidence that was led, after carrying a careful sifting of the evidence, and the complaint itself is to be quashed. So far as that submission is concerned, the law is well settled. While exercising inherent powers this Court does not function as a court of trial. The crux of the matter is whether the complaint discloses an offence. So far as that aspect goes, a perusal of the complaint (Annexure 'A') would show that it does disclose an offence. The complainant also produced a number of witnesses in support of the complaint. While exercising inherent powers this Court does not function as a court of trial. The crux of the matter is whether the complaint discloses an offence. So far as that aspect goes, a perusal of the complaint (Annexure 'A') would show that it does disclose an offence. The complainant also produced a number of witnesses in support of the complaint. When that is the position, inherent powers cannot be invoked and exercised. It is for the Magistrate, seized of the case, who has to decide whether any prima facie case for summoning the accused persons is made out. In such view of the matter, the entire proceedings in pursuance of the complaint, as well as the complaint cannot be quashed. 4. The next submission made is that in any case when the complaint purported to be u/s 395, Indian Penal Code , the Magistrate was bound to follow the procedure laid down under the proviso to Section 202(2) Code of Criminal Procedure as to examine all the witnesses cited by the complainant, which has not been done. To meet such submission, it was contended on behalf of the opposite party that the witnesses not examined were given up by the complainant. From the record, however, it does not appear to be the position and it is not shown that the witnesses, not examined, were given up and discharged. True, that the complainant is not bound to produce any witness upon whom for any reasons he does not rely and wants to give up, but such option has to be exercised by the complainant before the lower court and unless and until the remaining witnesses are discharged and complainant gives an application or statement that he does not rely upon any other witnesses, the Magistrate is bound to follow the procedure and observe the mandatory provisions contained in the proviso to Section 202(2), Code of Criminal Procedure. It has been so held in the case of Babu Ram v. State 1978 CriLJ 1430. 5. It was urged on behalf of the opposite party that the Magistrate has summoned the Petitioners under Sections 380 and 455 Indian Penal Code and both the offences are triable by the Magistrate and not by the court of sessions. It has been so held in the case of Babu Ram v. State 1978 CriLJ 1430. 5. It was urged on behalf of the opposite party that the Magistrate has summoned the Petitioners under Sections 380 and 455 Indian Penal Code and both the offences are triable by the Magistrate and not by the court of sessions. So far as that aspect is concerned, when both these sections and the ingredients laid down therein are taken into consideration, it would appear that the submission that when the complaint was u/s 395 Indian Penal Code , the mandatory provisions aforesaid should have been observed is not without force. The decision in the case of Moti Ram v. Sri Sanwarey, Crminal Misc. Application No. 1904 of 1979, decided on 26-9-1979 (Alld.) is a direct authority for the proposition that where the allegations made in the complaint disclose a prima facie case triable by a court of sessions, the Magistrate is bound to follow the procedure prescribed in proviso to Section 202(2) Code of Criminal Procedure. In that case also the Magistrate summoned the accused persons under Sections 147, 380 and 448 Indian Penal Code , and it was held that the procedure laid down u/s 202(2) Code of Criminal Procedure should have been followed. In the case of Dinesh Chand v. Rahmatullah, 1981 AWC 210 , it has been held that where any of the offences is triable exclusively by the sessions court, the Magistrate must follow the provisions laid down u/s 202(2) Code of Criminal Procedure as to examine all the witnesses cited by the complainant, unless the complainant discharges any one or more of them and makes it clear before the Magistrate that the witnesses examined are the only witnesses relied upon and he does not rely upon the others nor would produce them. On a perusal of the record of the present case, I find that there are some witnesses mentioned in the list, which were neither discharged as such nor the complainant gave any statement, as aforesaid. 6. For such consideration the petition is partly allowed. On a perusal of the record of the present case, I find that there are some witnesses mentioned in the list, which were neither discharged as such nor the complainant gave any statement, as aforesaid. 6. For such consideration the petition is partly allowed. The complaint as such is not quashed, but the order dated 4-9-1981 of the Magistrate summoning the accused persons, is quashed, and the Magistrate is directed to examine all the remaining witnesses cited, unless the complainant gives any statement that she does not rely upon any one or more of them as to discharge them. The Magistrate is then to pass appropriate orders and is to proceed in accordance with law.