JUDGMENT - H. SURESH, J.:---Applicant Nos. 1 and 2 are Preventive Officers of Customs and applicant No. 3 is the Superintendant of Customs. They detected a case of carriage of Mandrax tablets valued at Rs. 1,00,000/- to Lusaka, Japan. In the course of investigation, they arrested respondent No. 1, who along with others was produced before the learned Chief Metropolitan Magistrate, Esplanade Court, Bombay, on November 14, 1986. The accused were remanded to jail custody pending investigation and their prayer for bail was rejected. However, Respondent No. 1 complained to the leaned Magistrate, that he had been assaulted by applicant No. 1. His statement was recorded and the medical report was called for from the jail hospital. Respondent No. 1 remained in custody for some time After his release on December 24, 1986 he filed a complaint in the Court of the Additional Chief Metroplitan Magistrate, 37th Court Esplanade, Bombay, as against the presents applicants charging them under section 323 and 506 read with 34 of the Indian Penal Code. The allegation, broadly, is that the Customs Officers assaulted him by first and kicks and manhandled him when he was in their custody. The learned Magistrate issued procese under sections 323 and 506 read with 34 of the Indian Penal Code. 2. The applicants, as accused, appeared before the learned Magistrate and the case was pending for some time. On or about October 19, 1987, the plea of the accused i.e. the applicants herein, was recorded as the learned Magistrate treated the same as summons case. Thereafter, the case was kept for the purpose of leading evidence by the complainant. Instead, on November 24, 1987, the complainant i.e. respondent No. 1. made an application to the effect that if one reads the complaint elaborately, the complaint discloses an offence which is triable exclusively by the Court of Sessions and as such an enquiry should be held under section 202 of the Code of Criminal Procedure. The complainant, therefore, submitted that he should be permitted to lead evidence under section 202(2) proviso of the Code of Criminal Procedure and for that purpose he prayed that summons be issued to all the witnesses whose names were mentioned in the said application. This was objected to by the accused, i.e. the applicants herein. The complainant, therefore, submitted that he should be permitted to lead evidence under section 202(2) proviso of the Code of Criminal Procedure and for that purpose he prayed that summons be issued to all the witnesses whose names were mentioned in the said application. This was objected to by the accused, i.e. the applicants herein. The learned Magistrate heard both the sides and finally by his order dated February 21, 1989, granted the application made by respondent No. 1. He directed the complainant to examine himself on oath under section 202(2) of the Code of Criminal Procedure and to examine all his witnesses cited by him in the said application. It is this order which ha been challenged in this application. 3. The limited question I have to consider is as to whether after the issue of process under section 204(1) of the Code of Criminal Procedure, can the Magistrate be permitted to go back and again proceed under section 202(2) proviso, as if it is an enquiry before the issue of process ? 4. Under section 202(1) of the Code of Criminal Procedure, it is open to a Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance, to postpone the issue of process against the accused and either enquire 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. Under sub-section 2, proviso 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. But if instead of postponing the issue of process, if it appears to him that he can take cognizance of an offence of which he is authorised to take cognizance he can issue process under section 204. In the present case, this is exactly what had happened before the learned Magistrate when respondent No. 1 filed the complaint. At that point of time he did not think it fit to postpone the issue of process. He issued the process under section 204 and proceeded as if the case was a summons case. That is how after the service of summons the accused appeared before him. At that point of time he did not think it fit to postpone the issue of process. He issued the process under section 204 and proceeded as if the case was a summons case. That is how after the service of summons the accused appeared before him. 5. After the accused appeared before him what should be the procedure which the learned Magistrate should adopt. In the present case it appears to be an admitted position that the learned Magistrate proceeded with the trial by taking the plea of the accused as required under section 251 of the Code of Criminal Procedure. Since the accused pleaded not guilty, the Magistrate was bound to proceed under section 254(1) of the Code of Criminal Procedure. However, under section 259, it is possible that during the course of the trial, even though the trial had begun as if it was a summons case, if it appears to the Magistrate that in the interests of justice, the offence should be tried is accordance with the procedure for the trial of warrant cases, such Magistrate may proceed to re-hear the case in the manner provided by this Code for the trial of warrant cases and may recall any witness who may have been examined. Similarly, under section 323 of the Code of Criminal Procedure, if at any stage, on evidence or otherwise if it appears to the learned Magistrate that the case is one which ought to be tried by the Court of Session, he shall commit the case to that Court as provided under the provisions of the Code of Criminal Procedure. Mr. Ponda appearing for respondent No. 1 submits that the learned Magistrate can come to such a conclusion either in an enquiry or in a trial and at any stage, before signing the judgment. Mr. Ponda appearing for respondent No. 1 submits that the learned Magistrate can come to such a conclusion either in an enquiry or in a trial and at any stage, before signing the judgment. From that he submitted that in a summons case even though the accused had been summoned before the learned Magistrate and before any evidence is led, if it is brought to the notice of the learned Magistrate that the complainant in fact contains an offence triable exclusively be the Court of Sessions, the only procedure that is contemplated under the Code of Criminal Procedure is to re open the enquiry and proceed under section 202 (2) Proviso, and call upon the complainant to produce all his witnesses for the purpose of considering whether the case should be committed to the Court of Sessions or not. Mr. Ponda submitted that this procedure is for the benefit of the accused. He submitted that when a Magistrate proceeds under section 202(2) Proviso, it is obligatory for the complainant to examine all witnesses, so that when the case is committed to the Court of Sessions the accused will have the benefit of all the statements made by the witnesses before the learned Magistrate. He contrasted this with a police enquiry wherein the police record all statements of witnesses and that when a case is committed to the Court of Sessions on a police report the accused will have the advantage of all such statements. On the other hand in a private complaint if such statements are not furnished to the accused, it is possible for the complainant to examine such witnesses as he likes in the Court of Sessions without disclosing the full facts relating to a prosecution case. It is, therefore, necessary that the learned Magistrate should hold an enquiry under section 202(2) Proviso, before he commits the case to the Court of Sessions. 6. Undoubtedly, these submissions are relevant if the learned Magistrate postponed the issue of process and at that stage itself decides whether he should commit the case to the Court of Sessions or not. But I wonder whether once the process is issued and the learned Magistrate treats the case as a summons case or for that matter as a warrant case to be tried by him, then in such a case there will be no question of enquiry under section 202(2) Proviso. But I wonder whether once the process is issued and the learned Magistrate treats the case as a summons case or for that matter as a warrant case to be tried by him, then in such a case there will be no question of enquiry under section 202(2) Proviso. In such cases, after recording the plea, if it is a summons case or before the charge is framed if it is a warrant case, the learned Magistrate must adopt the procedure as contemplated for the purpose of trial. In other words, he must call upon the complainant to examine himself and produce his witnesses. The case proceeds. However, during the pendency of the case, if it appears to the learned Magistrate, on the basis of the evidence that has come before him, that the case involves an offence which is exclusively triable by the Court of Sessions he can commit the case to the Court of Sessions and in that event he has to follow the procedure as provided under the Code of Criminal Procedure. The procedure which is contemplated is the procedure mentioned under sections 208 and 209 of the Code of Criminal Procedure. He has to furnish, as provided under section 208, the statements of all the witnesses recorded by him to the accused before the case is committed to the Court of Sessions. Whether the learned Magistrate should insist on the complainant examining all witnesses or not before the case is committed to the Court of Sessions is for the learned Magistrate to decide at that stage. 7. It is true that section 323 of the Code of Criminal Procedure speaks of enquiry also. It must be understood in its context. It could be an enquiry or it could be a trial. If at any stage, it appears to the learned Magistrate that the case has to be sent to the Court of Sessions, section 323 of the Code of Criminal Procedure enables him to do so. But under section 202(2) Proviso, there is no question of the accused appearing before the learned Magistrate. In other words, it is like a police enquiry where statements of witnesses are recorded by the police. But under section 202(2) Proviso, there is no question of the accused appearing before the learned Magistrate. In other words, it is like a police enquiry where statements of witnesses are recorded by the police. When the case is before the learned Magistrate, it is the Magistrate who records the statements of witnesses and he can insist upon the complainant examining all his witnesses so that he will have all the material for the purpose of committing the same to the Court of Sessions. There is no question of cross examination of any of these witnesses. But once the accused is summoned before the learned Magistrate after he takes cognizance of any offence there is no question of his going back to hold an enquiry under section 202(2) Proviso, which is a stage before he takes cognizance of any offence i.e. at the pre-registry level. Technically speaking, at that stage there is no question of the accused cross-examining any of the witnesses, for the simple reason that he is just not there at all. But however, for the present case, Mr. Ponda submitted that he will have no objection if the witnesses presented by him are cross-examined on behalf of the accused. But, I think that concession has no foundation in law. The question is one of principle and procedure. Therefore, once the learned Magistrate makes up his mind and issues process and the accused is brought before him, it is for him to proceed with the trial and record evidence of witnesses that are produced on behalf of the prosecution. The accused will exercise his right of cross examination at that stage. During the pendency of such trial, if the learned Magistrate thinks that this is a case which has to be committed to the Court of Sessions and the material brought before him discloses an offence triable exclusively by the Court of Sessions, certainly it is open to the learned Magistrate to adopt that procedure. Mr. Ponda submitted that in that event the complainant may not examine all witnesses. I think that question does not arise in this petition. In any event, it is for the learned Magistrate to decide, for it must appear to him on the basis of the material before him that the case is exclusively triable by the Court of Sessions. 8. Across the Bar, number of authorities have been cited. Mr. I think that question does not arise in this petition. In any event, it is for the learned Magistrate to decide, for it must appear to him on the basis of the material before him that the case is exclusively triable by the Court of Sessions. 8. Across the Bar, number of authorities have been cited. Mr. Ponda has mainly relied upon the case of (In re Malai)1, A.I.R. 1937 Madras 944 for the purpose of showing that the Magistrate has power to change his mind in regard to the exact offences which a complaint discloses before he begins to enquire into the case. In may view, the question is not so much of power of the Court to change its mind in regard to the exact offences which the complaint discloses, as one of material brought before the Court and the procedure to be followed in such a situation. If during the enquiry or trial it appears to the learned Magistrate that the case discloses an offence exclusively triable by the Court of Sessions, he has to proceed under section 323 of the Code of Criminal Procedure, the object of the law being to do justice for the State and the accused. By this it cannot be said that he has changed his mind. 9. Mr. Ponda also draw my attention to the case of (Latohanno v. Kannayamma)2, A.I.R. (34) 1947 Madras 120), and also to the case of (Shanmugasundara v. Sadasivam)3, A.I.R. 1968 Madra 60 for the purposes of showing that it is open to the Magistrate, even though he began the trial as a summons case, to convert the same as a warrant case merely on the basis of the records and the evidence brought before him. So also the case of Orissa High Court (Bharat Pandhan v. State)4, 1952 Cri.L.J. 691 has no hearing on the question involved in this petition. 10. But in the case of (Rajarathnam v. Anantha Narayanan)5, 1978 Cri.L.J. 1856 the learned Judge of the Madras High Court has made the following observations, which I think, are relevant : "Relying on these observations, the learned Counsel for the petitioner has argued that where the complaint discloses an offence triable exclusively by the Court of Session, it is mandatory on the part of the Magistrate to hold an enquiry under section 202 Cri. P.C. After very carefully reading the judgment of Krishnaswamy Reddy. P.C. After very carefully reading the judgment of Krishnaswamy Reddy. J., I am not sure that the learned Judge has laid down such a proposition. He has reiterated the words 'if it appears' during the course of his judgment. Therefore only if it appears to the Magistrate that an offence exclusively triable by the Court of Session is disclosed that the Magistrate is bound to hold an enquiry under section 202. Likewise, section 208 and 209 also use the expression, it appears to the 'Magistrate'. Moreover, sections 208 and 209 would apply only after process has been issued to the accused. In this case, the Magistrate had issued process under section 204 and thereafter he has to proceed under Chapter XVI; and if at any stage it appears to the Magistrate that the case is one which ought to be tried by the Court of Session then he shall commit to that Court under section 323 Cri. P.C. When the course is still open, the petitioner cannot now invoke the inherent powers of this Court and ask for a direction to the Magistrate to enquire into the case as a Preliminary Register case." In the case of (Ramaswamy Gounder v. State)6, 1981 Cri.L.J. 1054, at page 1054 there are certain observations which will indicate that at any stage even before the evidence of a witness is concluded, if the learned Magistrate thinks that the case is exclusively triable by the Court of sessions, the Magistrate has no option but to commit the case to that Court. Such a question has not arisen before me. 11. My attention has been drawn to a Division Bench case of our High Court being the case of (In re; The Extra Assistant Addl. Sessions Judge, Ahmednagar)7, 1984 Cri.L.J. 801, which had been, in fact, cited before the learned Magistrate and he was pursuaded to hold that the same was not-applicable to the case. But I think, in this case there is a very relevant observation which is as follows : "That the proviso to sub-section (2) of section 202 of the Criminal Procedure Code comes into play when the Magistrate postpone the issue of process and holds inquiry. In this case, the learned Magistrate has not postponed the issue of process and the consequent commitment without examining all the witnesses is quite legal and proper. In this case, the learned Magistrate has not postponed the issue of process and the consequent commitment without examining all the witnesses is quite legal and proper. It is true that in this case the main question was whether for the purpose of committing the case to the Court of Sessions on a private complaint the complainant is bound to examine all the witnesses and if all the witnesses were not examined such committal was improper or illegal. But, the observation that the enquiry contemplated under section 202(2) Proviso comes into play, if only the Magistrate postpones the issue of process could not have been lightly brushed aside. In the result, I pass the following order : Rule is made absolute in terms of prayer (b). The learned Magistrate shall now proceed with the case by proceeding to record evidence on behalf of the prosecution as provided under section 202(1) of the Code of Criminal Procedure. Writ of this Court to go sown forthwith. The learned Magistrate to keep the case on board on August 21, 1989 on which day the applicants shall appear before the learned Magistrate. Rule made absolute. -----