JUDGMENT : Brij Raj Singh, J. 1. Sri Nadeem Murtaza, learned counsel for the private opposite parties, has filed objection to the supplementary affidavit filed on behalf of the petitioner, which is taken on record. 2. Heard Sri Raj Kr. Singh Suryvanshi, learned counsel for the applicant and Sri Nadeem Murtaza, learned counsel for the private opposite parties, and perused the record. 3. By means of this application, the applicant has prayed for the following main prayer:- "Hon'ble Court may kindly be pleased to set aside/quash the order dated 13.04.2018 passed by the Additional District Judge/Special Judge (Essential Commodities Act), Room No. 2, Barabanki, in Criminal Revision no. 128 of 2017 (Drig Pal Singh v. State of U.P. and ors.), arising out of Complaint Case No. 191/2016 (Ram Sanehi v. Drig Pal Singh and ors.), bearing Case Crime No. 451-A/2008, under Sections 147, 148, 149, 302, 504, I.P.C., Police Station Tikait Nagar, District Barabanki, contained as Annexure No. 1 to the application." 4. Brief facts of the case are that the applicant had lodged F.I.R. against the opposite party No. 2 and ors., which was registered at Case Crime No. 451-A/2008, under Sections 147, 148, 149, 302, 504, I.P.C., Police Station Tikait Nagar, District Barabanki. The investigating officer, after investigation, submitted final report on 28.06.2009, which was challenged by the applicant by filing protest petition on 18.01.2010. The said petition filed by the applicant was treated as Complaint and thereafter statements of the applicant and six witnesses were recorded. The Magistrate after going through the material on record dismissed the Complaint under Section 203 Cr.P.C. vide order dated 14.04.2015. The applicant challenged the order dated 14.04.2015 in Criminal Revision No. 61/2015. The same was allowed and the matter was remitted back to the Magistrate for fresh disposal of the case. The accused, feeling aggrieved against the aforesaid order of remand, filed Application under Section 482 Cr.P.C. in Criminal Misc. Case No. 4152 of 2015, which was allowed on 07.01.2016 and it was remitted back to the revisional court with direction that the accused persons be impleaded as opposite parties and it was directed that the case be decided after giving opportunity of hearing to the parties. 5. In pursuance of the aforesaid order, the applicant impleaded all the accused and they also appeared before the revisional court. 5. In pursuance of the aforesaid order, the applicant impleaded all the accused and they also appeared before the revisional court. The revision was allowed and matter was remitted back to the Magistrate for deciding complaint as fresh. The order was challenged by the accused by filing Application under Section 482 No. 5207/16, which was rejected vide order dated 01.05.2017 and the order dated 28.07.2016 was upheld. The Chief Judicial Magistrate, Barabanki, issued summoning order in Complaint Case No. 191 of 2016 in Case Crime No. 451-A/2008 to Drigpal Singh and others on 31.05.2017. One of the accused Drigpal Singh filed revision bearing Revision No. 128 of 2017 against summoning order dated 31.05.2017, which was allowed on the ground that all the witnesses mentioned in the list of witnesses have not been produced as per the provision of Section 202 Cr.P.C. and it has been observed that it is mandatory for the court to call upon the complainant to produce all the witnesses and examine them on oath, if the offence is exclusively triable by the court of Sessions. The aforesaid order was passed by the Revisional Court on 13.04.2018. Being aggrieved, Ram Sanehi filed the instant application under section 482 Cr.P.C. and the order dated 13.04.2018 was set aside on 09.05.2018. 6. Drigpal Singh challenged the order dated 09.05.2018 before the Hon'ble Supreme Court by way of Criminal Appeal No. 366/2024 and the Hon'ble Supreme Court allowed the Criminal Appeal No. 366/2024 vide order dated 23/01/2024 and set aside the order dated 09.05.2018, with a direction that since the summons were issued by the learned Chief Judicial Magistrate, Barabanki, to 13 accused and 9 of the accused are appellants herein. It is further observed that the appellants/the first respondents, complainant and the respondent-State shall appear before the High Court on 19.02.2024 either in person or through counsel without expecting any separate notices to be issued by the High Court. As far as accused No. 2, 3, 6 and 10 are concerned, notices shall be issued to them by the High Court and thereafter the petition filed by the first respondents herein may be heard and disposed of in accordance with law. As far as accused No. 2, 3, 6 and 10 are concerned, notices shall be issued to them by the High Court and thereafter the petition filed by the first respondents herein may be heard and disposed of in accordance with law. The Hon'ble Supreme Court remanded the case to this court with observations that some of the accused were not party before High Court, therefore, they should be impleaded and thereafter the High Court may pass order after affording opportunity of hearing. 7. In compliance of the order passed by Hon'ble the Supreme Court the applicant has impleaded all the aggrieved respondents, i.e., from opposite party Nos. 3 to 10 in the array of respondents. 8. Sri Nadeem Murtaza, Advocate, is appearing on behalf of all the respondents, who have been impleaded in pursuance of the direction passed by the Hon'ble Supreme Court. 9. Heard Sri Raj Kr. Singh Suryvanshi, learned counsel for the applicant, Sri Nadeem Murtaza, learned counsel for the private opposite parties, and perused the record and Sri Rajdeep Singh, learned A.G.A. for the State. 10. It has been submitted by learned counsel for the applicant that after recording the statement under Section 200 Cr.P.C. of the complainant and six witnesses under Section 202 Cr.P.C. the court concerned proceeded in the case and after going through record as well as the statements, issued summons. 11. It has been submitted by learned counsel for the applicant that there is no illegality, infirmity in the order of the summons for reason that the court below has to see whether after going through the record and evidences, the offence is made out or not. Once the six witnesses have been examined by the court below under Section 202 Cr.P.C., it was sufficient to see whether the evidences do constitute the offence or not. Counsel for the applicant has relied the judgment of Hon'ble the Supreme court in the case of Shivjee Singh v. Nagendra Tiwary and ors. , Criminal Appeal No. 1158 of 2010, arising out of SLP (Crl.) No. 1416 of 2009, (para 14, 16) , as also Judgments and orders of High this Court in Case under Sections 482/378/407 No. 1944 of 2011, Parmeshwar & ors. v. State of U.P. & ors. ; Crl. Misc. Application No. 5611 of 1991, Doodh Nath Mishra and ors. v. State of U.P. and anr. v. State of U.P. & ors. ; Crl. Misc. Application No. 5611 of 1991, Doodh Nath Mishra and ors. v. State of U.P. and anr. , dated 23.11.2002 (para11) ; Criminal Revision No. 3222 of 2013, Smt. Guddi and 9 others, dated 08.11.2023 (para 16, 17) ; Application U/s 482 No. 38783 of 2022, Kanwarpal Lala and 2 ors. v. State of U.P. and anr., dated 13.04.2023 (para- 11, 12, 16 ) ; Criminal Revision No. 1703 of 1998, Brij Pal v. State of U.P. & anr., dated 15.09.2021 (para- 7) Matters under Article 227 No. 3512 of 2020, Makibudeen and ors. v. State of U.P. & anr., dated 02.12.2020 (para- 9, 17) , Application U/S 482 No. 5705 of 2006, Sanjeev Kumar & ors. v. State of U.P. & anr., dated 17.01.2020 (para- 23, 28) ; Application under Section 482 No. 4419 of 2004, Shiv Poojan and ors. v. State of U.P. & ors., dated 04.07.2019 (para- 28, 30) and Misc. Cr. Case No. 2758 of 1999, Leelawati Bai (smt.) v. Rajendra Prasad and ors., dated 13.05.2009 (para- 11, 12) 12. On the other hand Mr. Nadeem Murtaza, learned counsel for all the private respondents has taken three grounds- (1) that the trial court while issuing summons committed error by summoning the dead person, i.e. Raghunath and Vijay Pal. He has submitted that while issuing summons the trial court ought to have looked into the fact that these two persons have died, therefore, it was incumbent upon the trial court to apply mind. (2) Counsel for the respondents has further submitted that same allegations have been levelled against two persons, i.e., Jagpal and Babu, but while issuing summons the trial court has overlooked this fact that there is also same allegation, but they have not been summoned. He has taken ground No. 3 that all the witnesses should have been called by the court below and thereafter summons should have been issued, but in the present case the trial court has summoned only six witnesses and their statements under Section 202 Cr.P.C. were recorded, however, other witnesses have not been examined, therefore, the summoning order is bad. He has taken ground No. 3 that all the witnesses should have been called by the court below and thereafter summons should have been issued, but in the present case the trial court has summoned only six witnesses and their statements under Section 202 Cr.P.C. were recorded, however, other witnesses have not been examined, therefore, the summoning order is bad. In support of his contentions, Sri Murtaza, has relied on judgments of Hon'ble the Supreme Court in the cases of Javed Shaukat Ali Qureshi v. State of Gujrat , (2023) 9 SCC 164 (para 15) ; Kashi Nath Rai v. State of U.P. , 2015 SCC Online All 5319(para 7-9) ; U. Subhadhramma and State of Andhra Pradesh & ors., (2016) 7 SCC 797 (para 9-10). He has also relied on a judgment of this High Court in the case of Gudiya v. State of U.P. & ors., (2024) 126 ACC 839 (para 15-27) 13. The Hon’ble Supreme Court in the case of Shivji Singh (supra) has held that witnesses cited in the complaint or whose names are disclosed by the complainant in furtherance of the directions given by the Magistrate in terms of proviso to Section 202(2), Cr.P.C. is not a condition precedent for taking cognizance. ( para 14 to 16 ): “14. Although, Shah, J. and Thomas, J. appear to have expressed divergent views on the interpretation of proviso to Section 202(2) but there is no discord between them that non examination of all the witnesses by the complainant would not vitiate the proceedings. With a view to clarify legal position on the subject, we deem it proper to observe that even though in terms of the proviso to Section 202(2), the Magistrate is required to direct the complainant to produce all his witnesses and examine them on oath, failure or inability of the complainant or omission on his part to examine one or some of the witnesses cited in the complaint or whose names are furnished in compliance of the direction issued by the Magistrate, will not preclude the latter from taking cognizance and issuing process or passing committal order if he is satisfied that there exists sufficient ground for doing so. Such an order passed by the Magistrate cannot be nullified only on the ground of non-compliance of proviso to Section 202(2). 15. Such an order passed by the Magistrate cannot be nullified only on the ground of non-compliance of proviso to Section 202(2). 15. In Birendra K. Singh v. State of Bihar (2000) 8 SCC 498 the only question considered by this Court was whether non- compliance of Section 197 Criminal Procedure Code was fatal to the prosecution. While holding that an objection regarding non-compliance of Section 197 can be raised only after the case is committed to the Court of Sessions, this Court observed that it was not made aware of the fact whether process was issued after complying with the provisions of Section 202. Therefore, that judgment cannot be read as laying down a proposition of law on interpretation of proviso to Section 202(2). That apart, it is important to mention that in Abdul Wahab Ansari v. State of Bihar 2000(4) RCR (Criminal) 572: (2000) 8 SCC 500 , a three-Judge Bench held that the decision in Birendra K. Singh's case does not lay down the correct law. 16. As a sequel to the above discussions, we hold that examination of all the witnesses cited in the complaint or whose names are disclosed by the complainant in furtherance of the direction given by the Magistrate in terms of proviso to Section 202(2) is not a condition precedent for taking cognizance and issue of process against the persons named as accused in the complaint and the High Court committed serious error in directing the Chief Judicial Magistrate to conduct further inquiry and pass fresh order in the light of proviso to Section 202(2).” 14. The Hon’ble Supreme Court in the case of Doodhnath (supra) has held that all the witnesses out of 16 are not to be examined by the court under Section 202(2) of Cr.P.C. ( para-11 ): “11. In the case on hand, as stated earlier, there were sixteen witnesses in all named in the complaint petition of whom respondent complainant examined twelve. No argument was advanced by the counsel appearing for the petitioners as to how non-examination of the remainaing four witnesses caused any prejudice to the petitioners. I am, therefore, of the view that there was sufficient compliance of the requirement of the proviso to sub-section (2) of Section 202 of the Code and therefore, I would hold that the order of the learned Magistrate taking cognizance of the offence cannot be interfered with.” 15. I am, therefore, of the view that there was sufficient compliance of the requirement of the proviso to sub-section (2) of Section 202 of the Code and therefore, I would hold that the order of the learned Magistrate taking cognizance of the offence cannot be interfered with.” 15. In Case of Brijpal (supra) the Hon’ble Supreme Court has observed that it is not mandatory for the complainant to examine all the witnesses named in the complaint under Section 202 Cr.P.C. ( para-7 ): “7. Thus, the legal position is well settled as has been laid down in case of Satyadeo Pandey v. State of U.P., 1987 (1) Crimes 637 , Dudh Nath Mishra v. State of U.P., 2003 Alld. Law Journal 55 , Chhotey Lal v. State of U.P., 2006 Cr.L.J. 2265 , by the Allahabad High Court and also in case of Abdul Hamidkhan Pathan & ors. V. State of Gujarat & ors., 1989 Cr.L.J. 468 , by the Gujarat High Court and so also in case of Kishor Singh & Etc. v. Sudama Prasad, 2002 Cr.L.J. 802 (MP) , wherein it is held that it is not mandatory for the complainant to examine all the witnesses named in complaint, he has choice in the matter and, therefore, this issue being already settled by several pronouncements of this High Court and other High Courts, is to be answered accordingly that there is no need to examine all the witnesses in terms of the Proviso below Sub-Section 2 of Section 202 Cr.P.C., 1973 if a case is triable by sessions court especially having regard to the import and meaning of word 'His' used in the proviso.” 16. In case of Subradharma and ors. (supra) the Hon’ble Supreme court has held that the criminal court cannot continue proceedings against a dead person and find him guilty. Such proceedings are contrary to very foundation of criminal jurisprudence. ( para 9 & 10 ): “9. As far as the circumstances of this case are concerned, we find that There has been a gross miscarriage of justice at several steps. In the first place, the finding of the trial court that Ramachandraiah was alone responsible for the offences is completely vitiated as null and void since Ramachandraiah had admittedly died on the date this finding was rendered. It is too well settled that a prosecution cannot continue against a dead person. In the first place, the finding of the trial court that Ramachandraiah was alone responsible for the offences is completely vitiated as null and void since Ramachandraiah had admittedly died on the date this finding was rendered. It is too well settled that a prosecution cannot continue against a dead person. A fortiori a criminal court cannot continue proceedings against a dead person and find him guilty. Such proceedings and the findings are contrary to the very foundation of criminal jurisprudence. In such a case the accused does not exist and cannot be convicted. Consequently, the learned District Judge committed a gross error of law in acting upon such a finding and treating Ramachandraiah as guilty of such offences while making the order of attachment and while confirming the said order of attachment of properties. 10. In such circumstance, the courts below erred in recording the finding that Appellant 1 had committed the offence as alleged by the prosecution. Further, finding recorded by the learned Single Judge of the High Court that Appellant 1 alone had committed the offence and not Appellant 2, must be taken to have misappropriated the said amount is perverse: "A criminal trial is not like a fairy tale wherein one is free to give flight to one's imagination and phantasy. It concerns itself with the question as to whether the accused arraigned at the trial is guilty of the crime with which he is charged... In arriving at the conclusion about the guilt of the accused charged with the commission of a crime, the court has to judge the evidence by the yardstick of probabilities, its intrinsic worth and the animus of witness". 17. The Hon’ble Supreme Court in the case of Javed Shaukaut Ali Quraishi (supra) has held that if there is identical evidence of eye- witnesses against two accused, then court cannot connect one accused and acquit the other ( para 15 ): 15. When there is similar or identical evidence of eyewitnesses against two accused by ascribing them the same or similar role, the court cannot convict one accused and acquit the other. In such a case, the cases of both the accused will be governed by the principle of parity. This principle means that the criminal court should decide like cases alike, and in such cases, the court cannot make a distinction between the two accused, which will amount to discrimination. In such a case, the cases of both the accused will be governed by the principle of parity. This principle means that the criminal court should decide like cases alike, and in such cases, the court cannot make a distinction between the two accused, which will amount to discrimination. 18. After going through record, I find that the court below while issuing summons has considered the statements of Section 200 Cr.P.C. of the complainant as well as statements of six witnesses under Section 202 Cr.P.C. The Magistrate while applying his mind at the time of issuing summons has to see the records available. In case, the records and evidences available make out the offence, there is no reason to call upon all the other witnesses and get their statement recorded under Section 202 Cr.P.C. 19. After going through the statements recorded under Sections 200 and 202, Cr.P.C. which were available before the court, it cannot be said that the offence is not made out. Once the offence is made out, the trial court will proceed and the evidences will be adduced in accordance with law. 20. Arguments of Sri Nadeem Murtaza, Advocate, that against dead person summon cannot be issued, is not sustainable in the eyes of law. It is relevant to be mentioned here that if summon has been issued against dead person, the criminal case is deemed to be abated in respect of dead person. The applicant’s case has to be seen on the given facts and circumstances; the evidence on record and the statements of the complainant and witnesses and after going through records, the offence is made out. 21. The argument that the same allegation against two persons, namely, Jagpal and Babu, have been levelled, but summons have not been issued, is also not sustainable in view of the fact that it is the applicant who may be aggrieved and he may take appropriate steps to challenge the order, but certainly it cannot be said that the respondents are aggrieved, therefore, this arguments is also overruled. 22. 22. The third arguments that all the witnesses have not been summoned, is also not sustainable, because after going through the record and statements of complainant and six witnesses under Sections 200 and 202, Cr.P.C., once the offence is made out and at the stage of summoning, the court below applied its mind and found that offence was constituted, therefore, summons were issued. The other witnesses will be examined at the time of trial, therefore, the argument has no force. 23. The statement under Section 200 Cr.P.C. reads as under:- 24. The said statement of the complainant has been recorded by the six witnesses, who have been examined under Section 202, Cr.P.C. and they had supported the prosecution case. It is relevant to be mentioned here that there is allegation of murder and bare perusal of the statement and other evidences on record goes to indicate that offence is made out and there is no illegality in the summons issued by the court below. 25. In view of the above, the application is allowed . Order dated order dated 13.04.2018 passed by the Additional District Judge/Special Judge (Essential Commodities Act), Room No. 2, Barabanki, in Criminal Revision no. 128 of 2017 (Drig Pal Singh v. State of U.P. and ors.), arising out of Complaint Case No. 191/2016 (Ram Sanehi v. Drig Pal Singh and ors.), bearing Case Crime No. 451-A/2008, under Sections 147, 148, 149, 302, 504, I.P.C., Police Station Tikait Nagar, District Barabanki, contained as Annexure No. 1 to the application, is hereby set aside