JUDGMENT Kamlesh Sharma, J —This petition is under sections 397 and 401, Cr. C. P against the order dated 10- U-1990 passed by the Chief Judicial Magistrate, Mandi, whereby the petitioner Prem Singh was summoned through bailable warrants in a private complaint under Section 302, I. P. C. filed by the respondent Hardev Singh Prem Singh has prayed for quashing the impugned order dated 20-12-1990. 2. The brief facts of the case are that on 26-10-1990, Hardev Singh filed a complaint under section 302, I. P. C. in the Court of the Chief Judicial Magistrate, Mandi, against Prem Singh. It was alleged in the complaint that on 27-9-1990 at 1.30 a. m., one student Ramesh Rana committed self-imcnoation at Gandhi Chowk, Mandi, and received 80% burn injuries. Later on, he succumbed to them. Though the District administration and the police officers fully armed were present on the soot, yet, they did nothing to save Ramesh Rana, This news spread like wild-fire and the people of Mandi town started gathering on the spot, They wanted to meet the Deputy Commissioner to lodge a protest but the Police did not permit them and started pelting stones on them from the side of Mini Secretariat as a result of which the people started running hither and thither. At that time Prem Singh who was in plain clothes was standing near Padaka Chohatta Bazar and fired shots on Ajay Guleria son of Hardev Singh without any warning to him who was standing opposite to Phillips Radios shop. As a result of gun-shot, Ajay Guleria received serious injuries on his head and fell down He was bleeding profusely. Some persons who were around him took him first to a near by private clinic and thereafter to District Hospital, Mandi, where he was declared dead As per the allegations made in the complaint, Prem Singh fired had the shot at the deceased with intention to cause his death and had committed offence under section 302, I. P. C. 3. On receipt of the complaint, the following orders were passed by the Chief Judicial Magistrate:— "31-10-1990. Present s Shri Hatdev Singh complainant in person. It be registered. For preliminary evidence of the complainant to come up on 28-11-1990. 28-11-1990 Present s Complainant with Sh. Durga Singh Thakur. 4 PWs in preliminary evidence of the complainant examined and preliminary evidence of the complainant has been closed. Present s Shri Hatdev Singh complainant in person. It be registered. For preliminary evidence of the complainant to come up on 28-11-1990. 28-11-1990 Present s Complainant with Sh. Durga Singh Thakur. 4 PWs in preliminary evidence of the complainant examined and preliminary evidence of the complainant has been closed. For consideration to come up on 10-12-1990. 10-12-1990 Present: Complainant with Counsel Shri Durga Singh Thakur, V. J. Tiwari and L. R. Sharma. Hence for order on 17-12-1990. 17-12-1990 Present i Complainant with Counsel Shri Durga Singh Thakur. Steno is on leave today, so adjourned for orders on 20-12-1990". These orders were passed before he finally decided to issue the process vide the impugned order dated 20-12-1990. 4. Now, in the present petition, Sh. T. R. Chandel, learned Counsel for Prem Singh has vehemently argued that the impugned order cannot stand the scrutiny of this Court as it is in violation of the mandatory provisions contained in proviso to sub-section (2) of section 202, Cr. P. C. According to him, the Chief Judicial Magistrate had not called upon Hardev Singh to produce all his witnesses and examine them on oath which illegality has vitiated the order itself. On the other hand, Sh. Indar Singh, learned Counsel for Hardev Singh, has controverted these arguments and has urged that the impugned order is legal and valid as it has been passed under section 200, Cr. P. C. In the alternative, Sh. Indar Singh has pointed out that proviso to sub-section (2) of section 200, Cr. P. C is not mandatory and its non-compliance does not render the order of issue of process as illegal and liable to be quashed. 5. In order to understand the rival contentions of the parties, it is desirable to understand the scheme of the Code of Criminal Procedure, 1973 (hereinafter called "the Code"). Section 4 (1) deals with trial of offences under the Indian Penal Code and other laws. It is as follows ;— "4. Trial of offences under the Indian Penal ode and other laws,— (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried and otherwise dealt with according to the provisions hereinafter contained." 6. Chapter XIV of the Code provides for conditions requisite for initiation of proceedings. It is as follows ;— "4. Trial of offences under the Indian Penal ode and other laws,— (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried and otherwise dealt with according to the provisions hereinafter contained." 6. Chapter XIV of the Code provides for conditions requisite for initiation of proceedings. Under section 19o, any Magistrate of the 1st class or any Magistrate of the second class specially empowered in this behalf under sub section (2) may take cognizance of any offence — (a) upon receiving a complaint of facts which constitute such offence ; (b) upon a police report of such facts ; (c) upon information received from any person other than a Police Officer, or upon his own knowledge, that such offence has been committed. 7. Section 193 deals with cognizance of offences by Courts of Session and provides?— "Except as otherwise expressly provided by this Code or by any other law for the time being in force, no Court of Session shall take cognizance of any offence as a Court of original jurisdiction unless the case has been committed to it by a Magistrate under this Code " 8. Chapter XV of the Code deals with complaints. Section 200 provides what a Magistrate will do on taking cognizance of an offence, upon receiving a complaint of facts which constitutes such offence under section 190 (1) (a). In the present case, we are dealing with private complaint only and are not concerned with clauses (b) and (c) of sub section (L) of section 190. Section 200 reads as under— "200. Examination of complainant—A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate: Provided that, when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses— (a) if the Magistrate makes over the case for enquiry or trial to another Magistrate under section 192 : Provided further that if the Magistrate makes over the case to another Magistrate under section 192 after examining the complainant and the witnesses, the latter Magistrate need not re-examine them.” 9. Section 201 provides procedure to be adopted by a Magistrate on receipt of a complaint whose cognizance he is incompetent to take. Further section 202 deals with a specific situation when the Magistrate thinks fit to postpone the issue of process. It reads as under s— “202. Postponement of issue of process.—(1) Any Magistrate, 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, 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 : Provided that no such direction for investigation shall be made,— (a) where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Sessions ; or (b) where the complaint has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath under section 200. (2) In an inquiry under sub-section (1) the Magistrate may, if he thinks fit, take evidence of witnesses on oath: 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 ail his witnesses and examine them on oath. (3) If an investigation under sub-section (I) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this Code on an officer-in-charge of a Police Station except the power to arrest without warrant " 10. Further section 203 provides for dismissal of the complaint if the Magistrate is of the opinion that there is no sufficient ground for proceeding, on consideration of statement, on oath (if any) of the complainant, his witnesses or the result of enquiry or investigation (if any) under section 202. Further section 203 provides for dismissal of the complaint if the Magistrate is of the opinion that there is no sufficient ground for proceeding, on consideration of statement, on oath (if any) of the complainant, his witnesses or the result of enquiry or investigation (if any) under section 202. But if the Magistrate finds sufficient ground for proceeding, how he will proceed is provided under Chapter XVI of the Code Under section 204, process is issued to the accused and while doing so if ft appears to the Magistrate that the offence is exclusively triable by the Court of Sessions, procedure under sections 208 and 209 is followed. 11. Section 208 provides for supply of copies of statements and documents to accused in cases triable exclusively by the Court of Sessions instituted otherwise than on police report. Section 208 is :- “208. Supply of copies of statements and documents to accused in other cases triable by Court of Sessions. - Where, in a case instituted otherwise than on a Police report, it appears to the Magistrate issuing process under section 204 that the offence is triable exclusively by the Court of Session, the Magistrate shall without delay furnish to the accused, free of cost, a copy of each of the following:— (i) the statement recorded under section 200 or section 202, of all persons examined by the Magistrate ; (ii) the statement and confession, if any, recorded under section 161 or section 164 ; (iii) any documents produced before the Magistrate on which the prosecution proposes to rely s Provided that if the Magistrate is satisfied that any such document is voluminous, he shall instead of furnishing the accused with a copy thereof, direct that he will only be allowed to inspect it either personally or through pleader in Court" 12. Section 209 pertains to procedure to be followed by the Magistrate for committing the case to the Court of Sessions when accused appears before him or is brought before him. This section applies to all types of cases including private complaints The Magistrate is just to comply with section 208, that is, to supply copies of statements and documents in complaint cases. Section 209 reads as under: "209. This section applies to all types of cases including private complaints The Magistrate is just to comply with section 208, that is, to supply copies of statements and documents in complaint cases. Section 209 reads as under: "209. Commitment of case to Court of Session when offence is triable exclusively by it.—When in a case instituted on a Police report or otherwise the accused appears or is brought before the Magistrate and it appears to the Magistrate that the offence is triable exclusively by the Court of Session, he shall— (a) commit, after complying with the provisions of section 207 or section 208 as the case may, be the case to the Court of Sessions, and subject to the provisions of this Code relating to bail, remand the accused to custody until such commitment had been made ; (b) subject to the provisions of this Code relating to ball, remand the accused to custody during, and until the conclusion of, the trial, (c) send to that Court the record of the case and the documents and articles, if any, which are to be produced in evidence ; (d) notify the Public Prosecutor of the commitment of the case to the Court of Session." 13. Further Chapter XVIII provides for trial before the Court of Sessions, in pursuance of commitment of the case under Sec. 209 when the accused appears or is brought before the Court of Sessions, the prosecutor states the charge and proposed evidence to prove that charge against the accused. If after hearing the accused and prosecution the Sessions Judge finds that there is no sufficient ground for proceeding, he will discharge him as laid down in section 227 On the other hand, if the Sessions Judge is of the opinion that prima facie case is made out from the material on record for the offence triable by him, he will frame the charge as provided under section 228. The expression sufficient ground to proceed has been used in sections 202, 203, 204 and 227 to mean prima facie case. 14. From the scheme of the Code, it is clear that provisions have been made for meeting all possible situations which a Magistrate may face while taking cognizance of an offence on private complaint. The expression sufficient ground to proceed has been used in sections 202, 203, 204 and 227 to mean prima facie case. 14. From the scheme of the Code, it is clear that provisions have been made for meeting all possible situations which a Magistrate may face while taking cognizance of an offence on private complaint. The first situation is contemplated under section 200 when the Magistrate takes cognizance and records the statements of the complainant and his witnesses, if present. In section 200, no distinction is made between the complain of an offence exclusively triable by the Court of Sessions or otherwise. Thereafter, the Magistrate makes up his mind to adopt any of the following courses, after going through the complaint, statements of the complainant and his witnesses, if any :— (i) If in his opinion there is sufficient ground for proceeding, he will at once issue process under section 204 (1); (ii) If in his opinion, there is no sufficient ground for proceeding, he will dismiss the complaint under section 203; and (iii) If he is doubtful and hesitant to issue process and in his opinion further inquiry or investigation is required for the purpose of taking decision whether there is sufficient ground for proceeding, he will postpone the issue of process and proceed under section 201. 15. In the second situation, where issuance of process is postponed, the Magistrate either enquires into the case himself or directs investigation as provided under section 202 (1). Proviso (a) to section 202(1) puts rider on him that he cannot direct investigation if the offence complained of is exclusively triable by the Court of Sessions. This means, in such a case the Magistrate roust make enquiry himself. Further, under sub-section (2) of section 202, it is provided that if the Magistrate making enquiry thinks fit, he may record the evidence of the witnesses on oath This provision is also circumscribed by a proviso that if the offence complained of is exclusively triable by the Court of Sessions, the Magistrate will call upon the complainant to produce all his witnesses and examine them on oath. After making enquiry himself or after receiving the report of investigation, the Magistrate will again find out from the material before him whether there are sufficient grounds to issue process or not. After making enquiry himself or after receiving the report of investigation, the Magistrate will again find out from the material before him whether there are sufficient grounds to issue process or not. As such, the object of examination of the complainant and his witnesses, if any, under section 200 and inquiry and investigation under section 202 is the same, to find out prima facie case for issuance of process. Section 202 is enabling section and meets the situation when the Magistrate is doubtful or hesitant to issue process on the basis of complaint, statements of the complainant and his witnesses, if any, and decides to further enquire into the matter. 16. An analytical examination of sections 200, 202, 203 and 204 makes it clear that it is left to the discretion of the Magistrate to issue process after recording the statement of the complainant and his witnesses, if present, or to postpone it and again decide after holding inquiry or investigation, as the case may be. The only distinction, in the case of complaint, where the complained of offence is exclusively triable by the Court of Sessions, is that inquiry will be held by the Magistrate himself and if he thinks fit to take evidence of witnesses on oath, he will call upon the complainant to produce all his witnesses and examine them on oath. The Magistrate is empowered to issue process straightway after recording the statement of the complainant and his witnesses present and without holding further inquiry in all types of cases including the case in which the offence complained of is triable by the Court of Sessions as provided under section 200 read with section 204. But if after examining the complainant and his witnesses present, the Magistrate postpones the issue of process, where the offence complained of is exclusively triable by the Court of Sessions, the Magistrate is empowered to hold inquiry and is required to examine all the witnesses of the complainant. 17. But if after examining the complainant and his witnesses present, the Magistrate postpones the issue of process, where the offence complained of is exclusively triable by the Court of Sessions, the Magistrate is empowered to hold inquiry and is required to examine all the witnesses of the complainant. 17. On the basis of this analysis, the first question to be answered is that whether the Magistrate in a complaint, in which the offence complained of is exclusively triable by the Court of Sessions, is required to hold enquiry and examine all the witnesses of the complainant failing which his order to issue process is vitiated Further, whether the proviso to sub-section (2) of section 202 controls the whole section and is mandatory ? Different High Court have taken divergent views. In Moideenkutty Haji and others v. Kunhikoya and others, 1987 Cr. LJ 1106, the Full Bench of Kerala High Court has held it mandatory that a Magistrate before issuing process to the accused on a complaint which discloses an offence exclusively triable by the Court of Sessions, shall call upon the complainant to produce all his witness and examine them on oath. While interpreting section 202, the learned Judges of Kerala High Court categorised the complaint cases triable by Magistrate as ordinary complaint case and case triable by Sessions as complaint case. According to the learned Judges, there is apparent ambiguity in section 202 which they have tried to clear by finding out the intention of the legislature. It was held in Para 20 :— "It is evident that the legislature intended two different types of enquiries, a discretionary enquiry in ordinary complaint cases and a mandatory enquiry in complaint cases under section 201, In the discretionary enquiry the Magistrate can either enquire into the case himself or direct an investigation to be made by a police officer or such other person as he thinks fit. But in a mandatory enquiry in a complaint case that discretion is taken away by proviso (a) to section 202 (1). The Magistrate will have to conduct the enquiry himself and he cannot order investigation. It is true that the said discretion is absent in another category of cases coming under proviso (b) to section 202 (1) also. But we are not concerned with such cases here. The Magistrate will have to conduct the enquiry himself and he cannot order investigation. It is true that the said discretion is absent in another category of cases coming under proviso (b) to section 202 (1) also. But we are not concerned with such cases here. In a discretionary enquiry in ordinary complaint cases section 202 (2) gives the option to the Magistrate to take evidence of witnesses on oath or not as he thinks fit That means he can even record a summary of the statements of witnesses. But in a mandatory enquiry in a complaint case that discretion is not there and the proviso to sub-section (2) says that he shall call upon the complainant to produce all his witnesses and examine them on oath. The scope of the discretionary enquiry under section 202 (1) is left undefined. That means even if the Magistrate decides to have an enquiry he is the master to decide what all materials are to be collected and at what point the enquiry nm to be stopped subject to his satisfaction whether or not there is sufficient ground for proceeding. But in the mandatory enquiry in a complaint case he has no such discretion. The proviso to section 202 (2) makes it compulsory for him to call upon the complainant to produce all his witnesses and examine them on oath....... " Further in Para 21:— “The scheme of the provisions and the language employed in the proviso show that conducting of enquiry in complaint cases is not left to the discretion of the Magistrate concerned In a complaint case, the scope and object of the enquiry are presumably different. Formation of the opinion by the Magistrate that there is or is not sufficient ground for proceeding is not the only purpose of such an enquiry. It must also appear to him that the offence is triable exclusively by the Court of Session and in that consideration he has to bear in mind that the case would go out from his Court to be tried by a superior Court, which may not be bound by the opinion formed by him on the basis of available materials that there is sufficient ground for proceeding. The Magistrate has to comply with the provisions of section 208 by furnishing copies of the documents mentioned in the section. The Magistrate has to comply with the provisions of section 208 by furnishing copies of the documents mentioned in the section. Section 208 gives sufficient indication that the enquiry envisaged in section 202 is mandatory if the offences disclosed are exclusively triable by Court of Session. The contention that since the word "or" is used in clause (i) of the section a situation without the enquiry is also covered by the section does not persuade us to take a different stand. "Statements recorded under section 200 or section 202" are the words used in section 208, clause (i). If the complainant is the sole eye-witness and if he does not produce any other witness even after being called upon by the Magistrate, no witness can possibly be examined by the Magistrate under section 202. In such cases Magistrate is not able to give copies of statements of witnesses. Hence the word "or" in section 208 is to be understood as to mean that in cases where the Magistrate was not able to examine witnesses he need supply the copy of statement recorded under section 200 only. At any rate we are not inclined to hold that the word "or" is employed in clause (i) of section 208 only for indicating that the enquiry can be dispensed with by the Magistrate in such cases." Also, in Paras 22 and 23 s — "The prosecution in the Court of Sessions is to be opened under section 226 by the Public Prosecutor describing the charge and stating by what evidence he proposes to prove the guilt of the accused. In a complaint case if process is issued on the opinion that there is sufficient ground for proceeding there is no other option for the Magistrate but to commit the accused to the Court of Sessions. If process is issued after compliance with section 200 alone without conducting an enquiry under section 203, the issue of process and committal may very often be on the basis of the allegations in the complaint and the sworn statement of the complainant alone The list of witnesses filed by the complainant may not reveal the version which the witnesses are going to say in Court. It may also happen that the complainant examined under section 200 does not have direct knowledge regarding some or many of the aspects of the offence. It may also happen that the complainant examined under section 200 does not have direct knowledge regarding some or many of the aspects of the offence. Under section 227 the Sessions Judge has to consider the record of the case and documents submitted therewith and he can discharge the accused if he considers that there is no sufficient ground for proceeding. In the contingencies mentioned above, perhaps, the Sessions Judge has no other alternative than to discharge the accused due to total paucity of materials. It is thus necessary that there must be sufficient materials for the Public Prosecutor to open the case and state by what evidence he proposes to prove the guilt of the accused. Otherwise the complainant will be exposed to the risk of the accused being easily discharged under section 227 even in a genuine case for want of sufficient materials in the absence of an enquiry under section 202." "The accused also will be at a disadvantage. In a police charge case there is the assurance of investigation by an official agency which may filter the materials. Under section 207, in such a case the Magistrate, before committal, has to furnish the records mentioned therein to the accused. The object is to facilitate the accused to prepare his defence on the materials by which the prosecution seeks to prove the case against him. In a complaint case, in the absence of investigation, documents mentioned in section 207 cannot be made available to the accused because there would be no such documents. Section 208 which provides for supply of documents in a complaint case will have to be viewed in this background. The documents to be supplied under section 208 (1) are statements of witnesses recorded under section 200 or section 202 of all the persons examined by the Magistrate......" The conclusion in Para 26 is: "As a result of the foregoing discussion we are forced to conclude that the legislature contemplated two types of enquiries under section 202 and in the mandatory enquiry under section 202 in a complaint case the Magistrate himself will have to conduct the enquiry and he will have to call upon the complainant to produce ail his witnesses and examine them on oath." 18. For coming to this conclusion, the learned Judges of Kerala High Court have relied upon the decisions in Paranjothi Udyar v. State, 1976 Cri LJ 598 (Single Bench, Madras High Court); Shyamkant v. State of Maharashtra, 1980 Cri U 1388 (Division Bench, Bombay High Court); Ramchander Rao v Boina Ramchander, 1980 Cri LJ 593 (Division Bench, Andhra High Court); Kama! Krishan v. State, 1977 Cri LJ 1492 (Division Bench, Calcutta High Court); Babu Ram v. State of U. P., 1978 Cri LJ 1430 (Allahabad High Court); Gobinda v, Subala, 1979 Cri LJ 1005 (Single Bench, Calcutta High Court); Gokuiananda Mohanty v. Muralidhara Malik, 1984 Cri LJ (NOC) 205 (Single Bench, Calcutta High Court) and Jadu Behera v. Dhaneshwar, 1985 Cri LJ 1732 (Single Bench, Orissa High Court). 19. The other view that though an enquiry under section 202 is desirable in a complaint case which involves an offence exclusively triable by the Court of Sessions, it is only discretionary and the obligation to comply with the proviso to sub-section (2) of section 202 will arise only when the Magistrate exercises his discretion to have such an enquiry, is expounded in Kochumohammad v. State of Kerala, 1977 Ker LT 508 (Single Bench, Kerala High Court); Sidhan v. State of Kerala. 19&6 Cri LJ 470 (Single Bench, Kerala High Court); M. G Pillai v. T. Pillai, 1983 Cri LJ 9(7, (Single Bench, Madias High Court); Bhagwant Pandey v. State of Bihar, 1986 Cri LJ 1429 (Single Bench, Patna High Court); Frank Dahon Larkins v. State {Delhi Admn), 1985 Cri LJ 377 (Division Bench, Delhi High Court I and The Extra Assistant and Addl Sessions Judge, Ahmednagar, 1984 Cri LJ 801 (Division Bench, Bombay High Court). 20. Yet another view is that neither an inquiry under Section 202 is required to be made nor statements of all the witnesses of the complainant are required to be recorded if an inquiry is held by the Magistrate, in a case where offence complained of is exclusively triable by the Court of Sessions This view has been propounded in Abdul Hamid Khan Pathan and etc. v. State of Gujarat and others 1989 Cri LJ 468 (Division Bench, Gujarat High Court) and Jumman and others v State of A, P. and another, 1988 Cri LJ 199 (Single Bench, Allahabad High Court). 21. v. State of Gujarat and others 1989 Cri LJ 468 (Division Bench, Gujarat High Court) and Jumman and others v State of A, P. and another, 1988 Cri LJ 199 (Single Bench, Allahabad High Court). 21. Before agreeing to any of the views stated above, it is necessary to refer to the judgments of the Supreme Court on the scope of Sections 200 and 202. 22. In Tula Ram and others v. Kishore Singh. AIR 1977 SC 2401, though the law point before the Supreme Court was different, yet, the analysis of sections 156 (3), 190, 200, 202 and 204 is relevant. In Para 14 of their judgments, the learned Judges laid down the following proposition of law:— "...Thus on a careful consideration of the facts and circumstances of the case the following legal propositions emerge ;— (1) That a Magistrate can order investigation under Section 156 (3) only at the pre-cognizance stage, that is, to say, before taking cognizance under Sections 190, 200 and 204 and where a Magistrate decides to take cognizance under the provisions of Chapter 14 he is not entitled in law to order any investigation under Section 156 (3) though in cases not falling within the proviso to Section 202 he can order an investigation by the police which would be in the nature of an enquiry as contemplated by Section 202 of the Code. (2) Where a Magistrate chooses to take cognizance he can adopt any of the following alternatives:— (a) He can peruse the complaint and if satisfied that there are sufficient grounds for proceeding he can straightway issue process to the accused before he does so he must comply with the requirements of Section 200 and record the evidence of the complainant or his witnesses, (b) The Magistrate can postpone the issue of process and direct an enquiry by himself. (c) The Magistrate can postpone the issue of process and direct an enquiry by any other person or an investigation by the police. (3) In case the Magistrate after considering the statement of the complainant and the witnesses or as a result of the investigation and the enquiry ordered is not satisfied that there are sufficient grounds for proceeding he can dismiss the complaint. (3) In case the Magistrate after considering the statement of the complainant and the witnesses or as a result of the investigation and the enquiry ordered is not satisfied that there are sufficient grounds for proceeding he can dismiss the complaint. (4) Where a Magistrate orders investigation by the Police before taking cognizance under Section 156 (3) of the Code and receives the report thereupon he can act on the report and discharge the accused or straightway issue process against the accused or apply his mind to the complaint filed before him and take action under Section 190 as described above." 23. In Dr. S. S. Khanna v. Chief Secretary, Patna and another, AIR 1983 SC 595, the Supreme Court in Para 9 of the judgment has made the following observations about the proceedings to be held by the Magistrate under Section 202:— "Even so two of the modifications made in the present Section 201 (1) deserve attention In Section 202(1) of the old Code where a Magistrate decided to postpone the issue of process for compelling the attendance of the person complained against he had to record reasons in writing in support of such decision. That obligation is no longer there under the present section. Secondly, the purpose of holding an enquiry under Section 202 (I) of the old Code was stated to be ascertaining the truth or falsehood of the complaint. Under the new section the inquiry contemplated is for the purpose of deciding whether or not there is sufficient ground for proceeding. The amendment now made brings out clearly the purpose of the inquiry under Section 202 even though the words used in the former section had also been understood by courts in the same way in which the present section is worded Thus the section has been brought in accord with the language of Section 203 which empowers the Magistrate to dismiss a complaint if he is of opinion that there is no sufficient ground for proceeding. The object of the latter change in Section 202 is to be found in the 41st report of the Law Commission which opined thus :— 16.9. Section 202 says in terms that the further inquiry or investigation is intended for the purpose of "ascertaining the truth or falsehood of the complaint". The object of the latter change in Section 202 is to be found in the 41st report of the Law Commission which opined thus :— 16.9. Section 202 says in terms that the further inquiry or investigation is intended for the purpose of "ascertaining the truth or falsehood of the complaint". We consider this inappropriate, as the truth or falsehood of the complaint cannot be determined at that stage; nor is it possible for a Magistrate to say that the complaint before him is true when he decides to summon the accused. The real purpose is to ascertain whether grounds exist for "proceeding further" which expression is in fact used in section 203. We think therefore that the language of section 202 should correspond to the language of section 203, and we have accordingly made suitable verbal alterations." 24. In A R. Antulay v. Ramdas Sriniwas Nayak and another, AIR 1984 SC 718 the Constitution Bench of the Supreme Court has also examined the provisions of sections 200 and 202 of the Code in the context that if a private complaint is received by a Special Judge exercising the powers under the Prevention of Corruption Act, which has been held to be a Court of original criminal jurisdiction and is also Court of Sessions, how is he to proceed? The observations of the learned Judges in Para 31 are as under:- "...When a private complaint is filed, the court has to examine the complainant on oath save in the cases set out in the proviso to section 200, Cr. P C. After examining the complainant on oath and examining the witnesses present, if any, meaning thereby that the witnesses not present need not be examined, it would be open to the Court to judicially determine whether a case is made out for issuing process, When it is said that Court issues process, it means the Court has taken cognizance of the offence and has decided to initiate the proceeding and as a visible manifestation of taking cognizance, process is issued which means that the accused is called upon to appear before the Court, This may either take the form of a summons or a warrant, as the case may be. It may be that after examining the complainant and his witnesses, the Court in order to doubly assure itself may postpone the issue of process, and call upon the complainant to keep his witnesses present. The other option open to the Court is to direct investigation to be made by a police officer- And if the offence is one covered by the 1947 Act, the investigation, if directed, shall be according to the provision contained in section 5-A. But it must be made distinctly clear that it is neither obligatory to hold the inquiry before issuing process or to direct the investigation of the offence by police. The matter is in the judicial discretion of the Court and is judicially reviewable depending upon the material disclosed by the complainant in his statement under oath under section 200, called in the parlance of Criminal Courts verification of the complaint and evidence of witnesses, if any It was, however, urged that if section 5-A can be dispensed with by holding that a private complaint is maintainable, the Court atleast should ensure pre-process safeguard by insisting upon the examination of all witnesses that the complainant seeks to examine and this will be counter-productive as far as the object of a speedy trial is concerned. Viewed from either angle, there is no merit in this submission. Primarily, examination of witnesses even at a pre-process stage by Special Judge is not on the footing that the case is exclusively triable by a Court of Sessions as contemplated by section 202 (2) proviso. There is no commitment and, therefore, section 202 (2) proviso is not attracted. Similarly, till the process is issued, the accused does not come into the picture. He may physically attend b is not entitled to take part in the proceeding. (See Smt. Naguwwa v. Veeranna Shivatingappa Konjalgi, (1976) 3 SCC 736: AIR 1976 SC 1947). Upon a complaint being received and the Court records the verification, it is open to the Court to apply its mind to the facts disclosed and to judicially determine whether process should or should not be issued. It is not a condition precedent to the issue of process that the Court of necessity must hold the inquiry as envisaged by section 202 or direct investigation as therein contemplated. It is not a condition precedent to the issue of process that the Court of necessity must hold the inquiry as envisaged by section 202 or direct investigation as therein contemplated. The power to take cognizance without holding enquiry, or directing investigation is implicit in section 202 when it says that 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......for the purpose of deciding whether or not there is sufficient ground for proceeding. Therefore, the matter is left to the judicial discretion of the Court whether on examining the complainant and the witnesses if any as contemplated by section 200 to issue process or to postpone the issue of process. This discretion which the Court enjoys cannot be circumscribed or denied by making it mandatory upon the Court either to hold the inquiry or direct investigation. Such an approach would be contrary to the statutory provision. Therefore, there is no merit in the contention that by entertaining a private complaint, the purpose of speedy trial would be thwarted or that a pre-process safeguard would be denied." 25. In view of the law laid down by the Supreme Court in Tula Ram and others v. Kishore Singh, AIR 1977 SC 2401 ; Dr S S Khanna v. Chief Secretary, Patna and another, AIR 1983 SC 595 and A R, Antulay v. Ramdas Sriniwas Nayak and another, AIR 1984 SC 718,1 have no hesitation to answer the question posed hereinabove that the Magistrate, in a complaint case in which the offence complained of is exclusively triable by the Court of Sessions is not required to hold any enquiry before issuing process under section 204 of the Code I further hold that if enquiry is held by the Magistrate under section 202 after he postpones the issuance of process, it is not mandatory to record the statements of all the witnesses of the complainant. In other words, the proviso to sub-section (2) of section 202 only controls subsection (2) but it is not mandatory. In other words, the proviso to sub-section (2) of section 202 only controls subsection (2) but it is not mandatory. With respect, t am not inclined to either adopt the view taken by the Full Bench of Kerala High Court in Moideenkutty Haji and others v. Kunhkoya and others, 1987 Cri LJ 1106 and other High Courts mentioned in Para 18 or the view taken by the other High Courts mentioned in Para 19. The view taken by the Division Bench of Gujarat High Court in Abdul Hamid Khan Pathan and etc v. State of Gujarat and others, 1989 Cri LJ 468 and single Bench of Allahabad High Court in Jumman and others v. State of U. P. and another, 1988 Cri LJ 199, is the view which is in consonance with the scheme of the Act as well as the analysis of sections 200, 202, 203 and 204 given in Para 14 to 16 above. 26. Any other interpretation will be in violation of the maxim Averbish Legis Non Est Recedum which means that you must not vary the words of the Statute In this regard, the observations of the Supreme Court in Prithipal Singh Bedi v. Union of India and others, AIR 1982 SC 1413 are as under :— "The dominant purpose in construing a statute is to ascertain the intention of the Parliament, One of the well recognised canons of construction is that the legislature speaks its mind by use of correct expression and unless there is any ambiguity in the language of the provision the court should adopt literal construction if it does not lead to an absurdity......" 27. Interpretation of sections 200, 202 and 204, Cr, P. C. given in Paras 14 to 16 above, gets further support from section 208 which provides that if it appears to the Magistrate issuing process under section 204 that the offence is triable exclusively the Court of Sessions, the Magistrate shall supply the statements recorded under section 200 or section 202 of all persons examined by the Magistrate besides other documents mentioned therein. The word "or" connotes that sections 200 and 202 are exclusive of each other and a Magistrate has discretion to issue process after recording the statements of the complainant and his witnesses, if present, as provided under section 200 or to postpone the issuance of process and hold enquiry under section 202 and thereafter issue the process. The purpose of recording statements of complainant and his witnesses under section 200 and holding further enquiry under section .02 is the same, that is, to find out whether there is sufficient ground for proceeding. After supply of documents under section 108, the Magistrate has no choice but to commit the case to the Court of Sessions who will either discharge him under section 227 if he does not find sufficient ground for proceeding against the accused after considering the material before him and hearing the accused or frame the charge if he finds that there is ground for presuming that the accused has committed an offence which is exclusively triable by the Court of Sessions. 28. So far the interpretation of sub-section (2) of section 202 of the Code is concerned, it is discretionary for the Magistrate to take evidence of witnesses on oath as is clear from the words used, that is, the Magistrate may", "if he thinks fit. It further shows that for making enquiry he may adopt some other method also, that is, to take evidence by way of affidavits or to inspect the spot if he thinks it fit. So far the words "all his witnesses" used in proviso to sub-section (2) of section 202 of the Code are concerned, these should be given such interpretation as will go with the scheme of the other provisions of the Code, Reading the entire section 202 as a whole and also the second proviso to section 200 makes it clear that the intention of the legislature was not to compel the complainant to examine all the prosecution witnesses but only those witnesses on whom he places reliance. As the emphasis is on the word "his", a choice has been given to the complainant to examine all his witnesses on whom he reposes confidence. This interpretation also fits in, in the scope of enquiry conducted under section 202. As the emphasis is on the word "his", a choice has been given to the complainant to examine all his witnesses on whom he reposes confidence. This interpretation also fits in, in the scope of enquiry conducted under section 202. The Magistrate holding enquiry under section 202 does not act as an Investigating Officer that he is required to record evidence of all witnesses of the complainant. He is to only make up his mind whether there is prima facie case to issue process. Had it been the intention of the legislature that the Magistrate should record statements of all the witnesses of the complainant in the complaint case in which offence complained of is triable by Court of Sessions, they would have made similar provision in section 200 and would not have dispensed with the enquiry preliminary to commitment by amending section 209. Further reading all these provisions with sections 227 and 228 makes it clear that the objec of the legislature was to save the accused from prolonged harassment Therefore, I am of the opinion that proviso to sub-section (2) of section 202 of the Code does not make it mandatory that all the prosecution witnesses must be examined failing which the issuance of process will be bad. 29. So far the facts of the present case are concerned, from the impugned order it is not clear whether the Magistrate bad proceeded under section ^00 or had conducted an enquiry under section 202. But the persual of the order sheet, as reproduced in Para 3 above, shows that on receipt of the complaint, the Magistrate did not immediately proceed to record the statements of the complainant and his witnesses present and issue the process as required under section 200. On the other hand, after receiving the complaint, he postponed the issuance of process and conducted the enquiry by recording the statements of the complainant and three of his witnesses. On the other hand, after receiving the complaint, he postponed the issuance of process and conducted the enquiry by recording the statements of the complainant and three of his witnesses. From the statements of the complainant and his witnesses, the Magistrate was satisfied that prima facie case under section 302, I. P. C. was made out and issued the process In view of the interpretation of proviso to sub-section (2) of section 202 of the Code, it was not obligatory for him to record the statements of all the prosecution witnesses mentioned in the list of witnesses Therefore, I find no illegality in the impugned order summoning Prem Singh by way of bailable warrants in the private complaint filed by Hardev Singh under section 302,1. P. C. In the result, the petition fails and is dismissed. Petition dismissed