JUDGMENT 1. - An important question arises for determination in this case about the construction of sub-section 2 of section 202 Cr. PC. The learned Sessions Judge, Jaipur District, Jaipur in his order dated April 8, 1986 which is the impugned order, has taken a view that in a complaint case which is exclusively triable by the Court of Session, it is mandatory for the Magistrate to record the statements of all the witnesses for the complainant. Consequently, he allowed the revision petition filed before him against the order dated December 10, 1983 of the learned Magistrate under which the Magistrate had taken cognizance of an offence under section 302/34 IPC against the accused non-petitioners. 2. A complaint was filed by the petitioner in the Court of Judicial Magistrate 1st Class, Chomu District, Jaipur against the accused non-petitioner Nos. 1 and 2 sarva Shri Sundar tal and Laxmi Narain wherein it was prayed that the congnizance of an offence he taken against them. The facts were also stated in the complaint. The complaint was registered and on behalf of the complainant the statements of as many as 9 witnesses were recorded on different dates. The case then was adjourned for recording further evidence. On June 6, 1983 one Shyamlal Nanda Advocate appeared for the complainant and the case was adjourned for arguments on the question as to whether process should be issued against the accused non-petitioner or not. The learned Magistrate under his order dated December 19, 1983 took cognizance of the offence against the accused non petitioners and ordered the complainant to file the list of witnesses and the accused were ordered to be summoned through arrest warrant. It is that order dated December 10, 1983 which was challenged on behalf of the accused non petitioner before the learned Sessions Judge and the challenge to the aforesaid order was mainly on the ground that under subsection (7) of section 202 Cr. PC it is mandatory, and because list of witnesses filed by the complainant contained 24 names and it was incumbent on the learned Magistrate to have examined all of them and to have called upon the complainant to produce all of them. After examining 9 witnesses only, the cognizance of the offence could not have been taken and process could not have been issued against the accused non-petitioner. After examining 9 witnesses only, the cognizance of the offence could not have been taken and process could not have been issued against the accused non-petitioner. In other words the case of the accused non petitioners before the learned sessions Judge was that the jurisdiction vested in the Magistrate to take cognizance of an offence in a case of complaint which is exclusively triable by the Court of Sessions only after all the witnesses have been examined for the complaint. The learned Sessions Judge allowed the revision petition agreeing with the submissions made before him on behalf of the accused non-petitioners and the order of taking cognizance of offence was set aside. 3. The question arises as to whether it is mandatory for the learned court below to examine all the overtnesses and what is meant by the words. "All his witnesses" in the proviso to subsection (2) of section 202. To understand the point involved it is necessary to read sub-section (2) of section 202 Cr. PC. It reads as under:- "(2) In an inquiry under sub-section (1), the Magistrate may, if he thinks fit, take evidence of witnesses on oath; Provided if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complaint to produce all his witnesses and examine them oath". 4. Under section 201(1) Cr. PC 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. The Magistrate 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. It further provides that in case the offence complained of is triable exclusively by the Court of Sessions no such direction for investigation as aforesaid under subsection (2) of section 202 shall be made. Under sub-section (2) of Section 202 vests a discretion in the Magistrate, in case he decided to hold an enquiry under sub-section (2) of Section 202 Cr. Under sub-section (2) of Section 202 vests a discretion in the Magistrate, in case he decided to hold an enquiry under sub-section (2) of Section 202 Cr. PC to take evidence on oath but under its proviso 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. There is no provision in the Code under Chapter XIV or XV that the list of witnesses is to be filed by the complainant and it will appear from sub-section (2) of Section 204 of the Code, which is in Chapter XVI that the list of prosecution witnesses is only to be filed before the summons or warrant are to be issued against the accused under sub-section (2) of Section 204 of the Code. Therefore, at the stage of an enquiry under sub-section 202 there is no list of witnesses, it cannot be said as to how many witnesses are to be produced by the complaint and it is to be left to the complainant as to which witness he wants to examine at that stage. In my opinion, the words"call upon the complainant to produce all his witnesses" means all such witnesses which the complainant may produce at the state of inquiry in case an offence exclusively triable by the Court of Sessions is made out. The aforesaid words can be read that all such witnesses whom the complainant may produce at the time of the trial of the case are to be examined on oath. At best the complainant can be called upon to produce the material witness which obviously will be eye witness to the occurrence and the Magistrate can call upon the complainant to examine such material witnesses as aforesaid and the complainant will be bound to produce them for examination before the Magistrate. The option is with the complainant to examine such of the witnesses which l.e chooses to examine and the court cannot deny an opportunity to the complainant from producing any witness whom he may seek to examine at that stage. In the case of M.N. Reddy & Ors. v. Kanakantimal Reddy & Ors., 1977 Cr. The option is with the complainant to examine such of the witnesses which l.e chooses to examine and the court cannot deny an opportunity to the complainant from producing any witness whom he may seek to examine at that stage. In the case of M.N. Reddy & Ors. v. Kanakantimal Reddy & Ors., 1977 Cr. LJ 1473 the Court held that the provisions of Section 202 (2) obliges the Magistrate to call upon the complainant to produce all this witnesses and examine them on oath. It is for the complainant to choose and to append a list of witnesses to the complaint, therefore, the right of the complainant with regard to the witnesses mentioned in the list cannot be interfered with by the Court. It is not the intention of the framers of the enactment to place any embargo on the right of the complainant in the matter of choosing the witnesses to be examined. 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 witness" within the meaning of that expression as occurring in the proviso. I had the occasion to examine the proviso to sub-section (2) of Section 202 Cr. PC in the case of Moola v. State & Anr., Cr. LR (Raj) 1980 p. 210 . In the aforesaid case it was held as under:- "A very look on the proviso to sub-section (2) of Section 202 Cr. PC would show that if the offence complained of is triable exclusively by the Court of Sessions, the Magistrate shall call upon the complainant to produce all his witnesses and examine them on oath. It is up to the complainant to produce such of the witnesses as he chooses and no powers are vested in the Magistrate to order the complainant to examine any other witness than the complainant has chosen to produce. The question of filing a list of witnesses will only arise before a process is actually issued against the accused persons under Section 204 as sub-section (2) of section 204 Cr. PC provides that no summon or warrant shall be issued against the accused untill a list of witnesses has been filed." 5. The question of filing a list of witnesses will only arise before a process is actually issued against the accused persons under Section 204 as sub-section (2) of section 204 Cr. PC provides that no summon or warrant shall be issued against the accused untill a list of witnesses has been filed." 5. It was held that the complainant is at liberty to give up witnesses and proceedings are not vitiated.A Division Bench of the patna High Court in the case of Bhagat Pandey & Ors. v. State of Bihar, Cr. L.J. 1986 P.1429 considered the proviso to sub-section (2) of section 202 of the code and held it is not mandatory. The Court said -plain reading of this proviso of sub section (2) of Section 202 Cr. PC is that in such a case which is exclusively triable by a court of Sessions, the Magistrate shall permit the complainant to produce all his witnesses and examine them, during the enquiry under section 202 Cr. PC. This only appears to be permissive nature of the provision, not mandatory in nature." It does appears that a contrary view has taken in some of the cases wherein it has been held that the proviso to sub section (2) of Section 202 is mandatory. In the case of Shyamkant Wamanrao pawar & Ors v. State of Maharashtra & Ors. 1980 Cr. L.J. 1388 it was held that the proviso is mandatory. In the opinion of the learned Judge the said proviso was introduced for the first time in the new Code of Criminal procedure and it applies to a case which is exclusively triable by the Sessions Court and when the prosecution is instituted on the basis of private complaint. In case of private case, obviously there being no earlier investigation by the police, the statement of witnesses under Section 161 and/or section 162 of the Code of Criminal Procedure are not available. Therefore, it appears that in its wisdom Legislature has made this wholesome provision. It was held that provision is mandatory. Again in Ramchander Rao & Ors. v. Boina Ramchander & Anr., 1980 Cr. L.J. 593 it has been held that the language of the proviso is clear and unambiguous. Where the case is one triable exclusively by a Court of Sessions under the proviso to cl. It was held that provision is mandatory. Again in Ramchander Rao & Ors. v. Boina Ramchander & Anr., 1980 Cr. L.J. 593 it has been held that the language of the proviso is clear and unambiguous. Where the case is one triable exclusively by a Court of Sessions under the proviso to cl. (2) of Section 202 it is mandatory on the part of the Magistrate to call upon the complainant to produce all his witnesses and examine them on oath. The word used is "all" and "all" does not mean "some. The Magistrate has to perform the statutory functions before issuing process in connection with the offences triable by a Court of Sessions. The examination of the witnesses is not a mere formality." In the case of Kamal Kirshna De. v. State & Anr., 1977 Cr. L.J. 1492 a similar view has taken. 6. In my opinion, the view taken in the aforesaid cases presuppose the existence of the list of witnesses. The question as to whether the proviso is mandatory will depend on various facts. There may be a pase where the complainant may cite a number of witnesses and good number of them may be formal witnesses, can it be said that even those formal witnesses have to be examined by the complainant in a case which is exclusively triable by the Court of Sessions for the purpose of inquiry under sub-section 2 of Section 202 Cr PC. In my opinion the proviso of section 202(2) firstly is not mandatory and secondly even if it be held to be so only material witnesses will have to be examined and the Magistrate can call upon the complainant to examine material witnesses which obviously will include eye-witnesses. In my opinion, the words "All his witnesses" will mean material witnesses which the complainant may choose to examine at that stage. So far the present case is concerned, all the eye witnesses of the occurrence were examined and even Doctor was examined. In all 9 witnesses were examined and then the Advocate Shyam Lal put his appearance and gave out that arguments may be heard. So far the present case is concerned, all the eye witnesses of the occurrence were examined and even Doctor was examined. In all 9 witnesses were examined and then the Advocate Shyam Lal put his appearance and gave out that arguments may be heard. Though it is not mentioned that it was expressly said by the Advocate that the complainant does not want to examine any other witnesses at that stage but the fact that the case was put up for arguments, goes to show that the Advocates must have given out for the purpose of inquiry under subsection (2) of Section 202 Cr. PC that all such witnesses have been examined which he wanted to examine. I am therefore, of the opinion that the learned Sessions Judge was not correct when he said that all the 24 witnesses listed in the list would have been examined under section (2) of Section 202 Cr. PC. at that stage before cognizance could be taken. 7. Consequently, I allow this Misc, petition, set aside the order of the learned Sessions Judge and restore the order of the learned Magistrate taking cognizance of the offence.Petition allowed. *******