Judgment ( 1. ) BEING aggrieved by the order dated 19. 9. 2003, passed by the judicial Magistrate First Class, Raghogarh, district Guna (M. P.) in Criminal Case No. 356/2003, which has been set aside by the ii Additional Sessions Judge, Guna in criminal Revision No. 223/03, vide order dated 24. 8. 2004, this petition under Section 482 of the Code of Criminal Procedure Code has been filed by the petitioner. ( 2. ) THE facts giving rise to this petition in short, are that the petitioner filed a private complaint in the Court of Judicial Magistrate First Class, raghogarh under Sections 147, 148, 323, 395 read with Section 149 of ipc against 28 accused persons, in which about 18 accused persons were Police Officers. Prior to the date of incident, a murder case was got registered against 15 family members belonging to the complainant. The learned trial Court sent the complaint under section 156 (3) of Cr. P. C. to the police for investigation and after receiving the report from the police, dismissed the complaint against all the accused persons under Sections 148 and 395 of IPC and took cognizance against accused Vijay Singh, lekhraj, Komal, Lal Singh, Ram Singh, prabhulal, Bahadur Singh, Kamal Singh, chhatar Singh and Kalyan Singh under sections 147 and 323 read with Section 149 of IPC and they were summoned on 19. 9. 2003. ( 3. ) LEARNED counsel for the petitioner submits that as per allegation of the complainant, the offence is triable exclusively by the court of Session. Therefore, the learned trial Court has committed illegality by calling report under Section 156 (3) of Cr. P. C. It is the duty of the Magistrate to consider the case as per provision of Section 202 of cr. P. C. to examine all the witnesses and thereafter he shall take cognizance of the offence. But in this case the Court with the aid of Section 156 (3) of Cr. P. C. registered the case against few accused persons under sections 147, 323 read with, Section 149 of ipc and not registered the complaint for the offence under Section 395 read with Section 149 of IPC. Further, it is also submitted at the revision petition was filed by the complainant against the order of the learned trial Court partly registered the criminal complaint. ( 4. Further, it is also submitted at the revision petition was filed by the complainant against the order of the learned trial Court partly registered the criminal complaint. ( 4. ) BEING aggrieved by the order of the learned trial Court the complainant filed a revision petition but the Sessions Court committed error by setting aside the complete order dated 19. 9. 2003 of the learned trial Court when there was no revision filed by the accused persons against whom the case was registered under Sections 147,323 read with 149 of IPC. As there was no revision filed by the aggrieved persons, the Sessions Court ought not to have set aside the whole order of the learned trial Court. It is also submitted that the Sessions Court by passing the impugned order, mis-construed the facts and law against the cognizance of offences which are exclusively triable by the court of Session. The revision was filed only for direction to the learned trial Court for taking cognizance against the remaining accused persons by complying the provisions of Section 202 (2) of Cr. P. C. In this regard, learned counsel for the petitioner relied on rosy and another v. State of Kerala and others. ( 5. ) ON behalf of the respondent, the impugned order has been supported by learned public Prosecutor. ( 6. ) TWO points are involved in this case, whether the learned trial court has power to direct investigation under Section 156 (3)of Cr. P. C. in case of complaint in which the allegations are that it is triable by the Court of Session and second is that when accused persons who are aggrieved persons, have not filed any revision against the cognizance of offence taken by the learned trial Court, whether the Sessions Court has power to set aside the whole order instead which was challenged by the petitioner in the revision petition? ( 7. ) SECTION 156 (1) of Cr. P. C. lays down that any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII. ) SECTION 156 (1) of Cr. P. C. lays down that any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII. Sub-clause (2) lays down that no proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer not empowered under this section to investigate and lastly, sub-clause (3) lays that any Magistrate empowered under Section 190 may order such an investigation as above-mentioned. ( 8. ) IT is pertinent to see the provisions of section 202 of Cr. P. C which are quoted below: " (1) Any Magistrate, on receipt of a complaint of an offence of which he is authorized 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 session; or (b) where the complaint has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined oh oath under Section 200. (2) In any inquiry under sub-section (1), the Magistrate may, if he thinks fit, take evidence of witness on oath: 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. (3) If an investigation under sub-section (1) 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. " ( 9. (3) If an investigation under sub-section (1) 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. " ( 9. ) IN the case of Laxmidhar Das etc, and others v. State of Orissa and another it is held that in case the offence is triable exclusively by the Court of Session, the Magistrate has no jurisdiction to direct investigation by police officer in exercise of powers under Section 156 (3) Cr. P. C. He has to make inquiry himself as provided under section 202 of Cr. P. C. ( 10. ) SUB-SECTION (2) of Section 202 of Cr. P. C. serves the purpose of preliminary inquiry as regards private complaint triable exclusively by a Court of Session. It is evident that the legislature intended two different types of enquiries, a discretionary enquiry in ordinary complaint case and a mandatory enquiry in complaint case under section 202 of Cr. P. C. In a 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. In a mandatory enquiry in a complaint case that discretion is taken away by proviso (a) to section 202 (1) of Cr. P. C. The Magistrate will have to conduct the enquiry himself and he cannot order investigation. The scheme of the provisions and the language employed in the proviso show that conducting of enquiry in complaint case is not left to the discretion of the Magistrate concerned. The magistrate has no discretion except to call upon the complainant to produce all his witnesses and examine them on oath. The provisions of Section 202 (2) are mandatory. In this regard, reliance can be placed in the case of Moideenkutty Haji v. Kunhikoya and in the case of Rosy (supra ). ( 11. ) THE next question is what would be the impact if all the witnesses were examined under Section 202 of Cr. The provisions of Section 202 (2) are mandatory. In this regard, reliance can be placed in the case of Moideenkutty Haji v. Kunhikoya and in the case of Rosy (supra ). ( 11. ) THE next question is what would be the impact if all the witnesses were examined under Section 202 of Cr. P. C. In this regard, the Honble Apex Court in the case of Rosy (supra) held that when the offence, sought to be taken cognizance of by the magistrate, is exclusively triable by the court of Session, the statute does not expressly provide for nullification of the committal order as a consequence of non-compliance of proviso to sub-section (2) of section 202 Cr. P. C, but provides that unless prejudice is caused, the order is not to be set aside. This would mean that during inquiry under Section 202 when Magistrate examines the witnesses on oath, as far as possible proviso is to be complied with but the mandate is not absolute. Further where objection as to how prejudice was caused, was not raised at earliest stage, fresh inquiry into Section 202 is unnecessary. In this regard para-47of the judgment is relevant and follows as under: "47. Hence, what emerges from the above discussion is: i (a) Under Section 200 Magistrate has jurisdiction to take cognizance of an offence on the complaint after examining upon oath the complainant and the witnesses present; (b) When the complaint is made in writing by a public servant acting or purporting to act in discharge of his official duties, the Magistrate need not examine the complainant and the witnesses; (c) In such case Court may issue process or dismiss the complaint. II (a) The Magistrate instead of following the procedure stated above may if he thinks fit, postpone the issue of process and hold inquiry for the purpose of deciding whether or not there is sufficient ground for proceeding against the person accused. Such inquiry can be held by him or by the police officer or by other person authorized by him. (b) However, where it appears to the magistrate that the offence complained of is triable exclusively by the Court of Session, the direction of investigation by the police officer is not permissible and he is required to hold inquiry by himself. During that inquiry he may decide to examine the witnesses on oath. (b) However, where it appears to the magistrate that the offence complained of is triable exclusively by the Court of Session, the direction of investigation by the police officer is not permissible and he is required to hold inquiry by himself. During that inquiry he may decide to examine the witnesses on oath. At that stage proviso further gives mandatory directions that he shall call upon the complainant to produce all his witnesses and examine them on oath. The reason obviously is that in a private complaint, which is required to be committed to the sessions Court for trial, it would safeguard the interest of the accused and he would not be taken by surprise at the time of trial and it would reveal the version of the witnesses whose list is required to be filed by complainant under section 204 (2) before issuance of the process. (c) The irregularity or non-compliance thereof would not vitiate the further proceeding in all cases. A person complaining of such irregularity should raise objection at the earliest stage and he should point out how prejudice is caused or is likely to be caused by not following the proviso. If he fails to raise such objection at the earliest stage, he is precluded from raising such objection later. " ( 12. ) IN view of the above, it is clear that it was obligatory on the part of the Magistrate to summon all the witnesses who have been cited by the complainant under Section 202 of Cr. P. C. The grievance of the petitioner is that when the learned trial Court registered the complaint against the accused persons under Sections 147, 323 read with 149 of ipc, complaint ought not to be quashed because no revision was filed by the aggrieved persons. ( 13. ) IN view of sub-clause (1) of Section 397 of Cr. P. C. , the High Court or any Court of Session may call for and examine the record of any proceeding before any inferior criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding. P. C. , the High Court or any Court of Session may call for and examine the record of any proceeding before any inferior criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding. Sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior Court, and may, when calling for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record. ( 14. ) IN this regard, as the order on the part of those accused is also set aside against whom the learned trial Court took cognizance partly and after setting aside the order directed to examine all the witnesses as per provisions laid down under Section 202 (2) of Cr. P. C. It may cause prejudice to the accused persons who have not filed revision petition against the said order as the learned Court already took cognizance against the concerned persons and order is passed against them, which may cause prejudice to the concerning party. Therefore, the order of the Revisional Court is set aside and case is remanded back with a direction to issue notice to the aggrieved persons against whom the learned trial Court has registered the complaint and after hearing the complainant and the accused persons, may pass order. ( 15. ) ACCORDINGLY, M. Cr. C. stands disposed of. Misc. Cri C. disposed of.