JUDGMENT 1. - I have heard the learned counsel for the petitioner as well as the learned Additional Government Advocate Mr. Biri Singh who is assisting her. I am of the opinion that in the facts and circumstances of the case, both the revision petitions should be allowed at the stage of admission. The ground which has been urged by the learned counsel for the petitioners in both the revision petitions is that even the material witnesses of the occurrence have not been examined by the learned Magistrate under the proviso of Sub-sec.(2) of Section 202 Cr.P.C. and the learned Magistrate could not have issued process without complying with that provision. 2. On may 26, 1987 by one Sohanlal, who was in judicial custody in some criminal case sent an application to the Magistrate on his own behalf as wall as for other signatories namely, Vasudev, Madan Lal, Bansidhar, Chandra Singh, Durga Ram and Ram Kumar through district jail, Sikar. The learned Magistrate recorded the statements of the witnesses. The under trial prisoners who were confined in jail were medically examined. As per the complaint on May 20, 1987 at about 10.30 a.m. from the office of Citu Vasudev Sharma, Chandra Singh, Madanlal, Harphool Singh Oza and Durga Prasad were arrested and were taken to Kotwali Sikar Sumita Choudhary and Suman Sharma who as per the complaint were sitting in the house of one Jhabarmal Jhangir were arrested from there and Bansidhar was arrested at 11.00 a.m from the booking window of the bus stand. At about 11.30 p.m. Madan Lal, Ram Kumar, Bansidhar, Durgalal and Vasudev are said to have been beaten in police station and Chandra Singh became unconscious and still he was not spare and beating was continued. It was further averred in the complaint that Hari Prasad Sharma. Dy. S.P. Sikar, Anil Kumar, H.I., Panna Lal Munshi, Richhpal Singh, Sugan Singh, Omi Jat, Mumtaz, Khansbalpura. Bhupendra Jivan Singh, Shambhu Singh, S.I, and Sumundra Singh gave beating and other accused were also there whose names ate not known. 3. The learned Magistrate recorded the statement of Chandra Singh under Section 200 Cr. P.C. and thereafter the statements of Durgaram, Madanlal, Bansidhar and Vasudev Sharma were also recorded under Sec 202 Cr. P.C. The learned Magistrate thereafter took cognizance under Sections 147, 149, 308, 323 IPC. 4. 3. The learned Magistrate recorded the statement of Chandra Singh under Section 200 Cr. P.C. and thereafter the statements of Durgaram, Madanlal, Bansidhar and Vasudev Sharma were also recorded under Sec 202 Cr. P.C. The learned Magistrate thereafter took cognizance under Sections 147, 149, 308, 323 IPC. 4. A bare look at the impugned order will show that the learned Magistrate though has taken cognizance for offence under Section 3.18 Indian Penal Code also but has not cared to go to the proviso to Sub-Section (2) of Section 202 Cr.P.C. A bare reading of that proviso will so that if it appears to the 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 in a enquiry under Sub-sec. (1) of Section 202 Cr. P.C. which is made before issuing the process. In S.B. Criminal Misc. petition No. 17/87 Satya Narayan v. Sundar Lal and ors. decided on March 19, 1987 . I had the occasion to examine the proviso to Sub-Section (2) of Section 202 Cr.P.C. and I said that words 'all his witness' in the proviso to Sub-Section (2) of Section 202 Cr.P.C. will mean material witnesses which the complainant may choose to examine at that stage. It was also said in the aforesaid case that in my opinion the proviso of Section 202 (2) Cr. P.C. firstly is not mandator, 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 eve-witnesses. Though in few outer cases, other courts as well as this Court has taken a view that 'all his witnesses' means all the witnesses, but even in the view which I have taken in the aforesaid case it can be said that 'all his witnesses' within the meaning of proviso of Sub-Section (2) of Section 202 Cr.P.C. will mean eye-witnesses to the occurrence. 5. In the instant case there can be no dispute that there was medical examination of some of the accused persons, the injury reports must have been on record besides those examined under Section 202 Cr.P.C. there were several eye witnesses also. It was therefore necessary for the learned Magistrate under proviso to Sub-Section (2) of Section 202 Cr. 5. In the instant case there can be no dispute that there was medical examination of some of the accused persons, the injury reports must have been on record besides those examined under Section 202 Cr.P.C. there were several eye witnesses also. It was therefore necessary for the learned Magistrate under proviso to Sub-Section (2) of Section 202 Cr. P.C. to examine the doctor and eye witnesses of the occurrence because as per the schedule to the Criminal Procedure Code Section 308 I.P.C. is triable by the Court of Session. There has been contravention and non-compliance of the proviso to Sub-Section (2) of Section 202 Cr.P.C. and the learned Magistrate could not have taken cognizance of the offence for offence under Section 308 Indian Penal Code without examining the doctor and the alleged eye witnesses of the occurrence. 6. Consequently, both the revision petitions are allowed, the impugned order dated 16-7-87 of the learned Magistrate is hereby set aside and the case is sent back to the learned Magistrate to record the statements of the remaining eye witnesses and the doctor under Section 202(l) Cr. P.C. and thereafter pass fresh order in accordance with the law.Revision Allowed. *******