D. P. MOHAPATRA, J. ( 1 ) THE petitioners have filed this application under S. 482, Criminal Procedure Code assailing the order passed by the learned Judicial Magistrate, First Class, Jaipur Road on 21-6-88 in I. C. C. No. 34 of 1988 taking cognizance of the offences under Ss. 328 and 494, I. P. C. read with S. 4 of the Dowry Prohibition Act and issuing non-bailable warrant against the petitioners for their production in the Court of Session. The short question that arises, for determination is whether the said order is vitiated due to non- compliance with the provision in S. 202 (2) proviso. ( 2 ) THE factual backdrop of the case relevant for the present purpose may be stated thus: the opposite party No. 1 Smt. Lilibala Singh lodged a complaint in the Court of the Judicial Magistrate, First Class, Jaipur Road (J. M. P. C.) on 13/05/1988 against the petitioners and opposite party No. 2 Rashmirekha Jona. Petitioner No. 2 Basanta Manjari Singh is the wife of petitioner No. 3 Gangadhar Singh who is the brother of petitioner No. 1. It was alleged in the complaint petition that opposite party No. 1 had married petitioner No. 1 on 9-5-82 and thereafter they lived together as spouses. At the time of marriage the father of opposite party No. 1 had paid as dowry Rs. 3,000/- in cash and had promised to pay Rs. 2,000/- later. He could not arrange for payment of the said amount on account of which the petitioners used to ill-treat, torture and assault the opposite party No. 1. Petitioners 2 and 3 and threatened to get petitioner No. 1 married elsewhere. On 12-7-85 the petitioner No. 1 brought opposite party No. 2 to his house in his second wife and started living with her. On 21-10-86 the opposite party No. 2 gave birth to a male child. With a view to force opposite party No. 1 to leave the marital home the petitioner had attempted to poison her on 15-12-86, but due to timely intervention of the villagers, some of whom were named as witnesses in the complaint petition, she was saved. Under such compelling circumstances the opposite party No. 1 was forced to leave her martial home and has been living with her perents. Under such compelling circumstances the opposite party No. 1 was forced to leave her martial home and has been living with her perents. ( 3 ) IN the complaint petition Chandi Kar, Anadi Charan Mekap, Golula Kumar Singh, Profulla Kumar Singh and Basanti Kumari Singh were named as witnesses with the statement that in addition to these there are other witnesses also. It appears from the order sheet in the case that the learned Magistrate recorded the initial statement of the opposite party No. 1 on 13-5-1988 and decided to hold enquiry under S. 202, Cr. P. C. He directed the opposite party No. 1 to produce her witnesses. On 6-6-88, 9-6-88 and 20-6-88 the opposite party No. 1 examined in all four witnesses, viz. Prafulla Kumar Singh, Basanti Kumari Singh, Balaram Guru alias Das and Dr. Khageswar Sabu. It was recorded in the order dated 20-6-88: "the complainant files a memo, stating therein that she has no more witness to be examined. In view of the above memo, enquiry under S. 202 is closed. " Thereafter on 21-6-88 the learned Magistrate passed the order taking cognizance of the offences and directing production of the petitioners in the Court of Session, since the offence under S. 328, I. P. C. is triable exclusively by the Court of Session. ( 4 ) THE main ground on which the petitioners challenge the impugned order is that the opposite party No. 1- complainant has not examined in course of the enquiry all the witnesses named in complaint petition as provided under the proviso to sub-sec. (2) of S. 202, Cr. P. C. and hence the cognizance order is vitiated. Shri D. P. Dhal, learned counsel for the petitioners reiterating the above submission relied mainly on the decision of this Court reported in (1989) 2 OCR 665 (Kaliash alias Kelu Jena v. Ramachandra Majhi) in support of the above contention. ( 5 ) SINCE the result of the case turns on the interpretation of the proviso to sub-sec. (2) of S. 202, Cr. P. C. it will be convenient to quote the said provision:"provided 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. (2) of S. 202, Cr. P. C. it will be convenient to quote the said provision:"provided 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. " ( 6 ) ON a plain reading of the statutory provision it is clear that it mandates that the Magistrate shall call upon the complainant to produce all his witnesses and examine them on oath. The underlying principle behind it is that since the offence alleged is of serious nature and is to be tried by a Court of Session, it is necessary that all the witnesses whom the complainant intends to examine in support of his should be examined in the enquiry under S. 202, Cr. P. C. so that the accused will be aware of the evidence against him. The provision, in my view, neither expressly nor impliedly prescribes any requirement that it is mandatory for the complainant to examine each one of the persons named in the complaint petition as witnesses and further that the Magistrate is duty bound to ensure compliance of this requirement. Indeed the Magistrate cannot compel the complainant to examine any witness. It may so happen that after naming a person as a witness in the complaint there has been certain change in the circumstances for which the complainant does not want to examine a witness or witnesses. Elucidating the point suppose after filing of the complaint the accused persons have gained over some witnesses named therein, the complainant certainly will not like to damage his case by examining such persons. Therefore, it can reasonably be said that the complainant has the choice of his witnesses and it is open to him either to drop out some of the witnesses named in the complaint petition or to examine some persons not named therein. All that: the proviso prescribes is that the Magistrate should call upon the complainant to produce all his witnesses and shall examine them on oath, so that the complainant cannot subsequently take the plea that he was not aware that he has to extent all his witnesses at the stage of enquiry under S. 2029 Cr. All that: the proviso prescribes is that the Magistrate should call upon the complainant to produce all his witnesses and shall examine them on oath, so that the complainant cannot subsequently take the plea that he was not aware that he has to extent all his witnesses at the stage of enquiry under S. 2029 Cr. P. C. ( 7 ) WHETHER requirement of this provision has been complied in a case will depend on the facts and circumstances of the case. If from the records it is clear that being well aware of the position that he has to examine all his witnesses, the complainant leaves out some of the witnesses named in his complaint petition, it cannot be said that the proceeding is vitiated due to non-compliance with the proviso and the cognizance order cannot be held to be bad on that score. I have carefully perused the order sheet of the learned Magistrate. There is no order passed by the learned Magistrate expressly calling upon the complainant to produce all her witnesses in terms of S. 202 (2) proviso; but, as noted earlier, from the order dated 20-6-88 it is clear that the complainant filed a memorandum stating therein that she has no more witness to be examined. The memorandum dated 20-6-88 signed by the Advocate for the complainant is available in the case record. There is, therefore, little doubt that the opposite party No. 1- complainant had examined all her witnesses. Consequentially it has to be held that S. 202 (2) proviso of the Criminal Procedure Code wag complied with and there is no substance in the petitioners challenge to the said order on that ground. I have carefully perused the decision in Kailash alias Kelu Jena's case (1989 (2) OCR 665) (supra ). There is no dispute regarding the settled principle which was reiterated in the said case that in a complaint case alleging offence exclusively triable by the Court of Session, congnizance cannot he taken without examination of all the witnesses for the complaint. The said decision, as I read it, does not lay down the principle that under S. 202 (2) proviso it is mandatory for the complainant to examine each one of the witnesses named in the complaint. ( 8 ) ACCORDINGLY, the application fails and it is dismissed. Petition dismissed.