TMI Blog1989 (11) TMI 323X X X X Extracts X X X X X X X X Extracts X X X X ..... duce his witnesses for enquiry under Section 202 Cr. P.C. In an enquiry under Section 202 Cr. P.C. the complain examined himself and he also examined two witnesses namely, Kailash Behera and Pari Behera, who are named in the complaint petition as witnesses One Jogi Behera, who is also named as eye witness in the complaint petition was not examined. On perusal of the complaint petition and the statements of the witnesses the lower Court was satisfied that there is a prima facie case under Section 436, IPC and hence it took cognizance under Section 436, IPC against the petitioners on 15-7-87. The accused persons appeared on 8-12-87 and they were remanded to jail custody as their bail petition was rejected. Subsequently, they were released on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has not examined all the witnesses named in the complaint petition. 5. The proviso to Sub-section (2) of Section 202 Cr. P.C. obligates the Magistrate to call upon the complaint to produce all his witnesses and examine them on oath, where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session. There is a conflict of judicial opinion as regards the proviso to Sub-section (2) of Section 202, Cr. P.C. One view is that the proviso to Sub-section (2) has to be read as a proviso to the whole of Section 202 and accordingly the proviso mandatorily enjoins that a Magistrate taking cognizance will inquire into the case and while doing so must call upon the complainant to produce al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with the examination of some of the witnesses, it is not incumbent on the committing Magistrate, to record the evidence of remaining witnesses. In a decision reported in 1977 Cri LJ 1473 (Musara Narayana Reddy v. Kanakanti Mal Reddy), it has been observed by the High Court of Andhra Pradesh that if. the complainant fails to produce some of the witnesses, it will not vitiate the order of the Magistrate taking cognizance of the offence. In view of the above decisions, it is clear that is some of the witnesses named in the complaint petition are not examined and cognizance is taken of the offence on the basis of the statements of the witnesses produced by the complainant and examined by the Court, the order of the Magistrate taking c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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