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Judgment
P.K. Jain, J.—List has been revised. None appears for the revisionists to press the revision.
Perused material on record and heard learned A.G.A.
It appears from the record that revisionists were summoned to stand trial under Sections 147, 148, 427 and 435, I.P.C. The complainant felt aggrieved and filed a revision claiming that offence u/s 436, I.P.C. was also made out. The revisional court allowed the revision and directed the learned Magistrate to summon the accused persons u/s 436, I.P.C. in addition to the offences under Sections 147, 148, 427 and 435, I.P.C. In the present revision order passed by the IVth Addl. Sessions Judge, Mirzapur, allowing the revision of the complainant is challenged on the ground that the offence u/s 436. I.P.C. was triable exclusively by the Court of Session and in view of the provisions contained in the proviso to Section 202(2), Code of Criminal Procedure the summoning order could not be passed without examining all the witnesses.
Proviso to Sub-section (2) of Section 202, Code of Criminal Procedure reads as follows:
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.
It is not disputed that offence u/s 436, I.P.C. is exclusively triable by Court of Session and in view of the proviso reproduced above the Magistrate is required to call upon the complainant to produce all his witnesses and examine them on oath. In case the complainant chooses not to examine some of the witnesses, he is required to make a mention of this fact. The provisions of the proviso reproduced above are mandatory. So far as the finding of the revisional court that the facts alleged make out a case u/s 436, I.P.C. is concerned, there is no error in it. The revisional court while directing the Magistrate to summon the accused persons u/s 436, I.P.C. should have also directed that summoning order u/s 436, I.P.C. shall be passed after complying with the proviso to Section 202(2), Code of Criminal Procedure. To this extent in my view, the order of the revisional court deserves to be modified.
The revision is partly allowed. Order of the revisional court is modified and it is directed that the learned Magistrate shall summon the accused persons u/s 436, I.P.C. only after complying with the provisions of the proviso to Section 202(2), Code of Criminal Procedure Stay order dated 30.5.88 is vacated.