Judgment 1. In the instant writ application the petitioner has prayed for quashing the order dated 2.9.2006 passed by the learned C.J.M., Siwan in Complaint Case No. 82 of 2006 arising out of protest-cum-complaint petition, whereby the learned Chief Judicial Magistrate, Siwan was pleased to take cognizance of offence under Section 302/34 of the I.P.C. and Section 27 of the Arms Act and summoned the petitioner to face trial. He further prayed for a declaration that the order dated 2.9.2006 passed by the C.J.M. in Complaint Case No. 82/06 arising out of protest-cum-complaint petition is in contravention of the proviso to Section 202(2) of the Cr.P.C. 2. Before I proceed to examine the aforesaid provision it would be necessary to give the facts of this case in brief. The informant Ram Ekbal Rai (Respondent No. 4) alleged that on 1.11.1999 at about 1 P.M. while he was talking with his co-villager Janardan Rai, Ram Ji Rai and Jai Mangal Rai at his door one Sudama Singh, Praduman Rai, Pramod Rai having gun in theirs hands arrived there alongwith Manan Rai. Praduman Rai inquired from the informant, the whereabouts of Munna Rai. The informant replied that he was inside the house. In the meantime as Munna Rai came out of his house, accused Sudama Singh and Manan Rai exhorted to kill Munna Rai, upon which Praduman Rai fired twice at Munna Rai injuring him. Munna Rai fell to the ground, whereupon co-accused Pramod Rai also fired a shot at him. The informant raised halla in despair, whereafter the accused persons fled away. The injured Munna Rai was being carried to Raghunathpur Hospital on a jeep but in the way he died. 3. On the basis of fardbeyan of respondent no. 4, Raghunathpur P.S. Case No. 71 of 1999 dated 15.11.1999 under Section 302/34 of I.P.C. was registered. 4. The police after investigation submitted charge-sheet against accused Manan Rai and Pramod Rai, and found accusations against the petitioner and one co-accused Sudama Singh to be false. The informant filed a protest petition before the C.J.M., Siwan alleging investigation to be collusive and unfair. 5. The learned C.J.M., Siwan, by his order dated 1.8.2001 contained in Annexure-3 took cognizance and issued summons against two charge-sheeted accused only. In other words the Magistrate accepted the final form and did not summon the petitioner and Sudama Singh to face trial. 5. The learned C.J.M., Siwan, by his order dated 1.8.2001 contained in Annexure-3 took cognizance and issued summons against two charge-sheeted accused only. In other words the Magistrate accepted the final form and did not summon the petitioner and Sudama Singh to face trial. The informant filed criminal revision no. 782 of 2001 against aforesaid order dated 1.8.2001 as the Court did not take cognizance against petitioner and another, who were not sent up for trial. The informant succeeded in revision in this Court and a Bench of this Court vide order dated 15.1.2002 set aside the order taking cognizance and remitted the matter back to the C.J.M., Siwan for fresh consideration. The learned C.J.M., Siwan vide order dated 14.3.2002 contained in Annexure-7 declined to take cognizance of offence against the petitioner. The informant filed Cri. Misc. No. 20941 of 2002, challenging the order dated 14.3.2002 contained in Annexure-5, passed by the C.J.M., Siwan. A Bench of this Court vide order dated 9.9.2004 quashed the order dated 14.3.2002 of learned Magistrate and directed him to proceed against all the accused persons, if involvement appears from the case diary. 6. The petitioner moved the Hon ble Supreme Court against the aforesaid order dated 9.9.2004 vide Cri. Appeal No. 1660 of 2005, and the Apex Court vide order dated 12.12.2005, as contained in Annexure-7, modified the order of the High Court and directed the Magistrate to treat the protest petition filed by complainant as complaint, and proceed further in accordance with law. As such the protest petition filed by the informant way back on 29.11.99 consequent to the order of the Hon ble Supreme Court was registered as Complaint Case No. 82 of 2006. The complainant therein had named Janardan Rai, Ramji Rai, and Jai Mangal Rai as his three witnesses, and others, who may be examined, in course of inquiry under Section 202 of Cr.P.C, the informant produced only one of these three witnesses named in complaint. 7. The complainant (opposite party No. 2) filed a petition before the learned C.J.M., for examination of witnesses other than one named in complaint, which was allowed by the learned Magistrate vide order dated 13.4.06, as contained in Annexure-9. The petitioner filed Cri. Rev. No. 42 of 2006 challenging the order dated 13.4.2006 before the learned Sessions Judge, Siwan who dismissed the same. Then the petitionerfiled Cri. Misc. The petitioner filed Cri. Rev. No. 42 of 2006 challenging the order dated 13.4.2006 before the learned Sessions Judge, Siwan who dismissed the same. Then the petitionerfiled Cri. Misc. No. 29531 of 2006 before this Court, challenging the orders dated 13.4.2006 and 30.6.2006. A Bench of this Court vide order dated 26.2.2007, as contained in Annexure-11 dismissed the Misc. application. This Court thus upheld the order of C.J.M., Siwan which exempted the complainant from examining two witnesses named therein, namely, Ram Ji Rai and Jai Mangal Rai who according to him were gained over while allowing him to examine witnesses not named in complaint petition. The learned Chief Judicial Magistrate, thus, examined four more P.Ws., namely, Parwati Devi, Archana Kumari and Pinki Kumari in inquiry under Section 202 Cr.P.C. 8. On perusal of evidence of prosecution witnesses and on the basis of the materials on record, the learned Magistrate found a prima facie case under Section 302/34 of the I.P.C. and Section 27 of Arms Act, made out against the petitioner and others, and summoned them to face the trial. 9. Thus being aggrieved petitioner Praduman Rai has filed the present writ application with the following prayer: (i) I. For quashing the order dated 2.9.2006 passed by the learned Chief Judicial Magistrate, Siwan in Complaint Case No. 82/06 by which he was pleased to take cognizance for the offence under Section 302/34 of the I.P.C. 27 of Arms Act against the petitioner and summoned him. (ii) ll. For a declaration that the order dated 2.9.2006 passed by the C.J.M., Siwan in Complaint Case No. 82/06 is in contravention of the provisions of Section 202 of the Cr.P.C. 10. In the facts of this case I would like to take up the second issue first, whether the impugned order dated 2.9.2006 is in contravention of the provision of Section 202(2) of Cr.P.C. or not. Before I deal with the notice it would necessary to state some of the relevant facts. 11. The police submitted charge-sheet in the initial Police case only against two accused persons but petitioner and another were not sent up for trial. The informant filed protest-cum-complaint before the C.J.M. Siwan against alleged collusive investigation by the police. Ultimately when the aforesaid issue came before the Supreme Court, their Lordship vide order dated 12.12.05 (Annexure-7) directed the learned Magistrate to treat the protest petition filed by the informant (OP. The informant filed protest-cum-complaint before the C.J.M. Siwan against alleged collusive investigation by the police. Ultimately when the aforesaid issue came before the Supreme Court, their Lordship vide order dated 12.12.05 (Annexure-7) directed the learned Magistrate to treat the protest petition filed by the informant (OP. No. 2 here) as complaint. Pursuant to direction of Hon ble Apex Court the case proceeded on protest-cum-complaint. 12. The complainant had named three witnesses in the complaint, namely, Janardan Rai, Ramji Rai and Jai Mangal Rai. The complamant perceived that Ramji Rai and Jai Mangal Rai have been won over and as such he filed a petition for not examining them and for examining other witnesses. 13. Ultimately the aforesaid issue came before a Bench of this Court for consideration. This Court vide order dated 13.4.2007 passed in Cri. Misc. No. 29531/06 permitted the complainant to examine other witnesses, who were not named in the complaint. The Court also permitted the complainant that he is at liberty not to examine two witnesses in whom he does not have any confidence. The plea of the petitionerthat proviso to sub-section (2) of Section 202 of Cr.P.C. mandates that all witnesses named in the complaint is necessarily to be examined was rejected. He submits that in view of the aforesaid proviso, it is incumbent upon the complainant to examine all his witnesses mentioned in the protest-cum-complaint in case of offence exclusively triable by Court of Sessions. In this respect he has placed reliance upon the order dated 18.4.2007 passed in Cri. Misc. No. 1778/07 in a case of Nagendra Tiwari and Ors. vs. The State of Bihar and Others. 14. Now after issuance of summons under Section 204 of Cr.P.C. the petitioner has again agitated the aforesaid issue that non-examination of all the witnesses named in the complaint by the complainant vitiates the proceeding in view of proviso to Section 202(2) of Cr.P.C. 15. The learned counsel for the O.P. submits that the proviso to Section 202(2) of Cr.P.C. is not mandatory, but directory. He submits that as per the provision an onus is cast on Court to call upon complainant to examine all his witnesses on oath named in the complaint, but it cannot compel the complainant to produce all the witnesses and examine them on oath. He submits that as per the provision an onus is cast on Court to call upon complainant to examine all his witnesses on oath named in the complaint, but it cannot compel the complainant to produce all the witnesses and examine them on oath. The O.P. relied upon a decision of the Division Bench reported in 1988 PLJR 216 in the case of Naresh Singh and 2 Others vs. The State of Bihar. 16. As the answer to the issue centres around proviso to Section 202(2) of Cr.P.C. it would useful to reproduce Section 202 of Cr.P.C. for easy reference: "Section 202. (1) Any Magistrate, on receipt of a complaint of an offence 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: (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 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 ail his witnesses and examine them on oath. 16A. The proviso to Section 202 (2) of Cr.P.C. provides that in a case where offence complained of is exclusively triable by a Court of Session. There is onus on the Court to call upon the complainant to produce all his. witnesses. The onus on Court to perform is by way of safeguard both in interest of the complainant as well as accused persons. The issue is whether it is mandatory or must for the complainant to produce all the witnesses named in complainant only and thus not those who are not specifically named in complaint. 17. witnesses. The onus on Court to perform is by way of safeguard both in interest of the complainant as well as accused persons. The issue is whether it is mandatory or must for the complainant to produce all the witnesses named in complainant only and thus not those who are not specifically named in complaint. 17. It is common knowledge that some of the witnesses who are named as a witness may be gained over by accused sides. There can also be situation where witnesses named in the complaint may have gone outside the State and would not be willing to come and depose. In such situation, the complainant cannot be compelled to examine all such witnesses named in the complaint even though they are named in complaint. 18. The word shall occurring in the proviso conceives of two requirements. The first requirement solicits of a Court to perform and call upon complainant to produce ail his witnesses in case of offence triable exclusively by Court of Sessions. In other words the Court is to provide opportunity to the complainant to produce all his witnesses. 19. The 2nd requirement is that Court shall examine all such witnesses on oath, which are produced by complainant. The Court cannot restrict the complainant from producing all the witnesses he proposes to examine. This proviso, tnus, bestows upon the complainant a right to examine even such witnesses who are not specifically even named in the complaint. The word shall mentioned therein in the proviso though couched in mandatory language, is used in aforesaid context. 20. The issue whether non-examination of all the witnesses mentioned in complaint would be in breach of proviso to Section 202(2) also came up for consideration before a Division Bench in case of Naresh Singh and 2 Others vs. The State of Bihar, reported in 1988 PLJR 216. This Court will do no better than to produce the relevant extract of para 9 of the decision of this Court in aforesaid case. "In my view, the. requirement of proviso to sub-section (2) of Section 202 of Cr.P.C. is that the enquiring Magistrate should call upon complainant to produce all his witnesses. This Court will do no better than to produce the relevant extract of para 9 of the decision of this Court in aforesaid case. "In my view, the. requirement of proviso to sub-section (2) of Section 202 of Cr.P.C. is that the enquiring Magistrate should call upon complainant to produce all his witnesses. If for one reason orthe other, the complainant fails to produce all the witnesses, the Magistrate shall be perfectly justified in proceeding to consider the question as to whether the petition of complaint be dismissed or the persons should be summoned on basis of the materials on record." The Division Bench went on to observe that non-examination of witness mentioned in the complaint will not be in breach of proviso to sub-section (2) of Section 202 of Cr.P.C. 21 Later on the Hon ble Supreme Court in the case of Rosy vs. The State of Kerala and Ors., reported in AIR 2000 S.C. 637 : 2000 (1) PCCR 196 (SC) observed in paras 25 & 26 as follows: "25. Thus, I have no doubt that, the proviso incorporated in sub-section (2) of Section 202 of the Code is not merely to confer a discretion on the Magistrate, but a compelling duty on him to perform in such cases. I wish to add that the Magistrate in such a situation is not obliged to examine witnesses who could not be produced by the complainant when asked to produce such witnesses. Of course if the complainant requires the help of the Court to summon such witnesses it is open to the Magistrate to issue such summons, for there is nothing in the Code which prevents the Magistrate from issuing such summons to the witnesses. 26. I reiterate that if the Magistrate omits to comply with the above requirement that would not, by itself, vitiate the proceedings, if no objection is taken at the earlier stage regarding such omission the Court can consider how far such omission would have led to miscarriage of justice, when such objection is taken at a later stage. A decision on such belated objection can be taken by bearing in mind. The principles adumbrated in Section 465 of the Code." 21A. The learned counsel for the petitioner however has relied upon the order dated 18.4.2007 passed in Cri. Misc. No. 1778/07. A decision on such belated objection can be taken by bearing in mind. The principles adumbrated in Section 465 of the Code." 21A. The learned counsel for the petitioner however has relied upon the order dated 18.4.2007 passed in Cri. Misc. No. 1778/07. In the aforesaid case the accused petitioners moved this Court against an order of C.J.M. taking cognizance of an offence, without examining 2 of the 4 witnesses named in complaint, as the offence was exclusively triable by Court of Sessions. The learned Judge by aforesaid order dated 18.4.2007 remitted the matter to the Court below with a direction to make further enquiry in the light of proviso to sub-section (2) of Section 202 Cr.P.C. 22. This Court is in respectful disagreement with the aforesaid view of the learned Single Judge. The complainant cannot be compelled to produce all the witnesses that he/she may have named in the complaint. It is for the complainant to produce the witnesses it would like to examine in course of enquiry. The Magistrate cannot compel him to produce witness which he does not propose to examine. It is always open to the Court under Section 311 of Cr.P.C. to examine any witness, as Court witness to elicit truth. The option before Magistrate in such a situation is to peruse the materials on record and pass appropriate order either dismissing the complaint or issuing summon under Section 204 of Cr.P.C. 23. In view of the aforesaid disussions this Court is of the view that the non-examination of all witnesses named in the complaint would not be in breach of proviso to subsection (2) of Section 202 of Cr.P.C. in respect of offence exclusively triable by the Court of Session. It is not mandatory for complainant to produce all the witnesses he/ she has named in complaint, if he is not willing to examine them, for the reasons that may be. On the other hand, the proviso mandates that in respect of offence exclusively triable by Court of Sessions, the Magistrate must call upon the complainant to examine all his witnesses and the Court would examine all such witnesses which are produced by complainant whether they are named in complaint or not, a complainant cannot be compelled to examine all the witnesses named in complaint only. 24. 24. Now I take up the issue whether the Magistrate erred in taking cognizance of offence under Section 302/34 of the I.P.C. and Section 27 of the Arms Act in the instant case on basis of materials existing on record. It would appear from the impugned order that the learned Magistrate after perusing the complaint petition, the statement on oath, the evidence of the prosecution witnesses, namely, P.W.1 Janardan Rai, P.W. 2 Parwati Devi, P.W. 3 Pinki Kumari and P.W. 4 Archana Kumari, found that prima facie case is made out under Section 302/34 of the I.P.C. and Section 27 of the Arms Act and as such summoned the petitioner to face the trial. After perusal of the record this Court finds that there is no illegality in the order of Magistrate taking cognizance of offence under Section 302/34 of the I.P.C. and Section 27 of Arms Act. 25. In view of the aforesaid findings this Court finds no merit in this application and the same is rejected with observation that the petitioner would be at liberty to make his submission that no case under Section 302/ 34 of the I.P.C. and Section 27 of Arms Act is made out against him at the time of framing of charge.