JUDGMENT : K.C. Jagadeb Roy, J. - The Petitioner had filed a complaint case bearing No. ICC 14 of 1987 in the court of the Subdivisional Judicial Magistrate, Nowrangpur against the accused persons, who are the opposite parties in this case. The allegation in the complaint case was that they were responsible for the murder of the brother of the Petitioner Kamal Lochan Naik. Since no action was taken by the police on a report filed before them the Petitioner had filed this complaint petition Before the S. D. J. M., Nowrangpur. In the complaint petition, the Petitioner had named ten- witnesses in support of his case. 2. The learned Magistrate after examining the complainant fixed up the enquiry u/s 202, Code of Criminal Procedure and after examining six witnesses including the complainant as p. w. 6, had taken cognizance of an offence u/s 301/149, I.P.C. by his order dated 22-2-1988. 3. Against the order dated 22-2-1988, the opposite parties preferred a criminal Revision bearing No: 39 of 1988 in the court of the Sessions Judge, Jeypore which was ultimately heard by the learned Additional Sessions Judge, Jeypore who remanded the case to the S. D. J. M. directing the Magistrate to cause production of all the witnesses by the complainant named in the complaint petition and after exhausting their examination on oath to pass necessary orders in accordance with law. 4. After the case was remanded to the court of the S. D. J. M., the present Petitioner (complainant) filed a memorandum before him stating that he did not want to produce or examine the rest of the for witnesses named in the complaint petition and the complainant had thus closed his evidence. This is borne out in paragraph 5 of this revision petition filed by the complainant. The said memorandum is however, not found in the L.C.R. The L.C.R. was called for and on perusal it is seen that on 31-5-1988 the Subdivisional Judicial Magistrate passed the following order: Complainant filed a memo that he has dosed his evidence and does not want to examine any more witnesses given in the complaint petition and relies on the evidence of witnesses who were already examined. Heard. Put up later for orders. Heard. Put up later for orders. Later (31-5-1988) as per the observation of the Revisional Court in Criminal Revision No. 39/88 a direction has been given to the complainant to produce all his witnesses named in the complaint petition for examination on oath in this enquiry. In the complaint petition names of 10 witnesses find place, out of them six witnesses were already examined. On behalf of the complainant a memo has been filed to-day stating therein that the complainant does not want to produce and examine the rest of the witnesses named in the complaint petition as they are only formal witnesses... 5. The S. D. J. M. finding a prima facie case against all the accused persons u/s 302/149, I.P.C. after examining these six witnesses out of the list of ten given in the complaint petition including the complainant as p. w. 6, directed issuance of non-bailable warrant against all the accused persons by order dated 31-5-1988. 6. Against the said order dated 31-5-1988 passed in ICC case No. 14 of 1987 by the S. D. J. M., Nowrangpur the accused persons, namely, the present opposite parties, again preferred another Criminal Revision numbered as Criminal Revision No. 43 of 1988 in the court of the Additional Sessions Judge, Jeypore urging that in spite of direction of the revisional court in the earlier order, the S. D. J. M. did not examine the remaining witnesses named in the complaint petition. 7. The revisional court again held that there was no discretion given to the complainant u/s 202(2) of the Code of Criminal Procedure, who was obliged to produce all his witnesses as the list given by him and further held that after exhausting the witnesses named in the complaint petition the Magistrate might proceed according to law. With those observations, the Additional Sessions Judge again remanded the case back to the S. D. J. M. by his order dated 26-7-1988. Against this order dated 26-7-1988 of the Additional Sessions Judge, Jeypore passed in Criminal Revision No. 43 of 1988, the complainant has preferred this Criminal Revision for quashing the impugned order. 8. The contentions raised by Mr. With those observations, the Additional Sessions Judge again remanded the case back to the S. D. J. M. by his order dated 26-7-1988. Against this order dated 26-7-1988 of the Additional Sessions Judge, Jeypore passed in Criminal Revision No. 43 of 1988, the complainant has preferred this Criminal Revision for quashing the impugned order. 8. The contentions raised by Mr. Y.S.N. Murty, learned Counsel for the Petitioner were: (i) It was open to the complainant to confine his evidence to some of the witnesses mentioned in the complaint petition if he thought that it was sufficient for him to make out a prima facie case. This was more so because the order of discharge by the Magistrate, when the complaint petition has been dismissed u/s 203 of the Code of Criminal Procedure in a complaint case, does not debar the complainant to prefer a fresh complaint petition in which he could name lesser or more number of witnesses. If that was permissible then there was nothing wrong in not examining some witnesses out of the given list in his complaint petition in the present case. (ii) Since the accused has no locus standi during the enquiry u/s 202 of the Code of Criminal Procedure, the revision was not maintainable at the instance of the accused before the Additional Sessions Judge against the order issuing process by the Magistrate. 9. The contention of Mr. B.K. Panda, learned Counsel appearing for the opposite parties was that the Magistrate was bound. by the order of remand and had no option, but to examine all the witness of the complainant mentioned in the complaint petition and he having not done so the learned Additional Sessions Judge had rightly interfered with the order and directed fresh enquiry as per law contained in Section 202 of the Code of Criminal Procedure. This needs dose scrutiny. 10. Chapter XV (b) of the Code of Criminal Procedure deals with complaints to Magistrates. When the complaint is filed before a Magistrate having jurisdiction, the Magistrate can take cognizance of an offence after examining upon oath the complainant and the witnesses present, if any. This needs dose scrutiny. 10. Chapter XV (b) of the Code of Criminal Procedure deals with complaints to Magistrates. When the complaint is filed before a Magistrate having jurisdiction, the Magistrate can take cognizance of an offence after examining upon oath the complainant and the witnesses present, if any. This is the purport of Section 202 of the Code of Criminal Procedure But a Magistrate, on receipt of a complaint of an offence of which he has is athorised to take cognizance or which has been made Over to him u/s 192, may, if he thinks fit, postpone the issue of process against the accused and either inquire into the case himself or direct the 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 suficient ground for proceeding. But where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Sessions. Section 202(2) of the proviso requires the Magistrate to call upon the complainant to produce all his witnesses and examine them on oath. 11. There is a growing tendency on the part of mischievous litigants to file vexatious and frivolous complaints. Some of the complaints are filed solely for harassment. The purpose of a mischievous litigant is achieved when the accused persons are summoned. It is obvious that a process can be issued on the argument u/s 202, Code of Criminal Procedure itself, but the legislature in its wisdom does not favour any hasty decision by the Magistrate and wants him to postpone the issue of process if he is not satisfied from the statement of complainant and other material on the record that there is sufficient ground for proceeding. The legal position is that a Magistrate is to act like a reasonable and prudent person for satisfying himself prima facie if there is sufficient ground for proceeding. Where the Magistrate acts arbitrarily or ignores apparent absurdities, improbabilities of the version or acts upon intrinsically untrustworthy or self-contradictory evidence or even acts in the absence of any legal evidence or acts on a complaint filed illegally or vexatiously or without jurisdiction or without proper sanction or acts even when the complainant does not disclose any offence, there is no exercise of judicial discretion. 12. 12. On a plain reading of Sub-section (1) of Section 202, Code of Criminal Procedure especially the words 'may, if he thinks fit' it is manifest that it is entitely within the discretion of the Magistrate whether or not an inquiry under this section should be made or an investigation ordered. A combined reading of Sections 202 to 204 of the Code of Criminal Procedure would show that there is no legal obligation on the part of a Magistrate taking cognizance of an offence to resort to procedure laid down in Section 202 before dismissing a complaint or issuing process to the accused after taking cognizance of the offence complained of. The purpose of the proviso to Section 202(2) of the Code seems to be that where the Magistrate postpones the issue of process and decided to hold an inquiry and the case appears to him to be one exclusively triable by the Court of Sessions, it will be imperative for him to examine all the witnesses for the complainant on oath. Any other interpretation would be violative to the mandatory provision contained in the proviso referred to above. Whether the Magistrate without resorting to the inquiry under the proviso to Section 202 can take cognizance of an offence after compliance to Section 200 is not the question here. In the present case, the Magistrate opted to hold an enquiry u/s 202(2). Therefore, a preliminary question arises as to whether the Magistrate was required to examine all the witnesses mentioned in the complaint petition or could in law direct the issue of the process against the accused persons being satisfied after examining the six witnesses only out of ten in the list. This High Court in Gokulananda Mohanty and Ors. v. Muralidhar Malik reported in 47 (1979) C.L.T. 244, where a Division Bench of this Court taking several decisions of this Court into consideration, namely, Boya Lakshmanna Vs. Boyachinna Narasappa and Another Kamal Krishna De Vs. State and Another, and Babu Ram and Anr. This High Court in Gokulananda Mohanty and Ors. v. Muralidhar Malik reported in 47 (1979) C.L.T. 244, where a Division Bench of this Court taking several decisions of this Court into consideration, namely, Boya Lakshmanna Vs. Boyachinna Narasappa and Another Kamal Krishna De Vs. State and Another, and Babu Ram and Anr. v. State of Uttar Pradesh 1978 Cri.L.J. 1430, held: When the Magistrate after examining the complainant and his witnesses u/s 200 of the Code of Criminal Procedure is of the view that an offence exclusively triable by the Court of Sessions appears to have been made out, he is bound to take action order the proviso to Section 202 of the Code and there is no discretion left in him not to hold such enquiry. In the enquiry, which is bound to be undertaken, he has to call upon the complainant to produce all his witnesses and has to examine them on oath. Accordingly, this Court has held that the cases which were exclusively triable by the Court of sessions, the Procedure laid down in proviso to Section 202(2) of the Code of Criminal Procedure for examination of all the witnesses of I the complainant required strict compliance. This view also finds support from the decisions of different High Courts such as Kamal Krishna De Vs. State and Another Ramchander Rao and Others Vs. Boina Ramchander and Another Shyamkant Wamanrao Pawar and others Vs. State of Maharashtra and others Dinesh Chand Sinha v. Rahmatullah and Anr. 1981 All. L.J. 344, (Allahabad), Ranjit Guha Nepai v. State and Anr. (1981) Cri.L.J. NOC. 66 Calcutta, and Moideenkutty Haji and Others Vs. Kunhikoya and Others, . 13. In the other cases of this High Court, namely, Magi Nayak and Ors. v. The State of Orissa and Baikunthanath Dash Crl. Rev. No. 601187 and Jogi alias Joginath Nayak and Ors. v. The State of Orissa and Ram Chandra Mohalik CrL Rev. No. 602187 a common judgment was passed which is reported in 66 (1988) C.L.T. 532. In that judgment this Court took notice of a larger number of cases on this point decided by this Court and other High Courts in India and since in one of the two cases, namely, Crl. Rev. No. 602187 a common judgment was passed which is reported in 66 (1988) C.L.T. 532. In that judgment this Court took notice of a larger number of cases on this point decided by this Court and other High Courts in India and since in one of the two cases, namely, Crl. Rev. No. 602/87 the complainant did not examine a witness named in the complaint petition and gave in writing that he had no more witness to examine, and in the other, namely, Crl. Rev. No. 602/87 the complainant who was a witness in support of his case was not examined on oath in the enquiry under the proviso to Section 202, Code of Criminal Procedure. This Court held that the complainant did not examine all witnesses within the meaning of the proviso to Section 202, Code of Criminal Procedure. In Kartikeswar Nayak Vs. Karadi Jagannath and Others. This Court held that "all his witnesses" included the complainant himself. However, in the present case, the complainant had examined himself, as a witness. Therefore, this was not an issue. This Court in the case reported in 66 (1988) C.L.T. 532 (supra) had observed that orders of cognizance of grave and serious offences against the Petitioners after examination of some of the witnesses cannot be supported according to the law and must have to be quashed. Proviso to Section 202 (2) of the Code of Criminal Procedure reads as follows: 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. This proviso does not speak specifically to all the witnesses referred to in the complaint petition. In Section 200, Code of Criminal Procedure the language is different, it speaks of "the witnesses present, if any." There may be cases where witnesses named in the complaint petition may not be available either because of their death or their absence and that their presence could not be procured without suffccient delay in which case it is always open to the complainant to give up some of those witnesses if he so chooses. But this can only be done if he has to make proper application for amending the list of the witnesses mentioned in the complaint petition. But this can only be done if he has to make proper application for amending the list of the witnesses mentioned in the complaint petition. If he does not do so, but chooses only to examine a few and not the rest and doses the evidence that would result in violation of the law contained in the proviso to Section 202 of the Code of Criminal Procedure. In a case reported in 1977 Cd. L.J. 1473 (1475) (Musara Narayana Reddy and Ors. v. Kanakanti A1al Reddy and Anr.) it was held: The proviso to Section 202(2) obliges the Magistrate to call upon the complainant to produce all his witnesses and examine them on oath. To start with the Magistrate has no power to prescribe the number of witnesses for the purposes for which they have got to be examined. It is for the complairiant 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 nor his right to give up some of them can 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 choJsing 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 witnesses" within the meaning of that expression as occurring in the proviso. Non-examination of the given up witnesses cannot be construed as a non-examination of his witnesses. It was further held that the Magistrate is competent to examine only those witnesses that were produced by the complainant and he does not have any power to compel the complainant to produce witnesses given up by him. 14. It is open to the complainant to amend his list of witnesses by giving up some of them making specific statement in writing that he wanted to rely only on the remaining witnesses. 14. It is open to the complainant to amend his list of witnesses by giving up some of them making specific statement in writing that he wanted to rely only on the remaining witnesses. Unless this is done, by merely refusing to examine some of the witnesses, who are already in the list, would not amount to giving up the witnesses and the Magistrate has no option, but to call upon the complainant to examine all those witnesses which has been done in the present case. 15. Mr. Y.S.N. Murty, the learned Counsel for the Petitioner has raised a point that the Assistant Sessions Judge has no jurisdiction to interfere with the order of the S.D.J.M. issuing process was not maintainable as the accused had no locus standi to prefer the revision. It is true that at the stage of enquiry or investigation u/s 202, Code of Criminal Procedure the accused has no locus standi, but once the Court comes to the satisfaction that there was prima facie case to proceed with and direct issue of process against the accused persons are at liberty to move the revisional court order of taking cognizance if according to them the impugned order was passed in violation of the law. In the present case, as discussed earlier, indeed the Magistrate did not follow the mandatory provision contained in the proviso to Section 202, Code of Criminal Procedure and the decisions taken earlier by this Court in Gokulananda's case, as well as the case reported in 66 (1988) C.L.T. 532 (supra). Rightly, therefore, the Additional Sessions Judge, Jeypore has interfered with the order and remanded the case to the S.D.J.M. for fresh disposal. I, however, modify the order of the Additional Sessions Judge, Jeypore circuit at Nowrangpur passed on 26-7-1988 in Criminal Revision petition No. 43 of 1988 dt. 26-7-1988 in remanding the case to the S. D. J. M. and direct that on remand it would not be necessary to re-examine the witnesses already examined in course of the enquiry and the statement made by them on oath shall be taken into consideration for the purpose of taking cognizance. 16. In the result, subject to, the observation made above, the Criminal Revision is dismissed. But in the circumstances of the case there shall be no order as to costs. Revision dismissed. Final Result : Dismissed