JUDGMENT
P.S. Sahay, J.
1. This application is directed against the order of the learned Magistrate dated 9th March, 1977 by which he has taken cognizance against the petitioners under Sections 147,148,323,324,379 and 436 of the Indian Penal Code.
2. On 10th November, 1976 opposite party No. 1 lodged a petition of complaint alleging that on 8th November, 1976 at 10 p.m the petitioners after having formed an unlawful assembly came to his house duly armed with bhala, garasa and lathi. It was also his case that at the instance of petitioner Ramaji Tiwari (petitioner No. 7), Bhup Narain Tiwari (petitioner No. 6) set fire to fiis house, and on his protest he was assaulted by means of pharsa by petitioner Jamuna Tiwari and others. In the petition of complaint 6 persons were named as witnesses. The learned Magistrate examined the complainant on solemn affirmation, and out pf the 6 witnesses he examined 4 and 2 witnesses, namely, Bechan Bherihar and the Doctor who had examined the injuries of opposite party No. I were not produced. The learned Magistrate by his order dated 9th March, -19,77 took cognizance against the petitioners and summoned them for trial Being aggrieved by the aforesaid order, the petitioners have moved this court for quashing of the cognizance.
3. Learned Counsel appearing on behalf of the petitioners has contended that the petitioners have been summoned under Section 436 of the Penal Code which is triable exclusively by the court of session, and all the witnesses named in Petition of complaint have not been examined, and, therefore, the order of the learned Magistrate is bad in law, and fit to be set aside. In support of his contention, reliance has been placed on a Bench decision of the Calcutta High Court in Kama Krishna De v. The State 1977 Cri. L.J. 1492, Mr. M. N. Jha, Learned Counsel appearing on behalf of opposite party No. 1, has contended that under the law a duty is cast upon’ the Magistrate to direct the complainant to produce his witnesses and, even if some witnesses are not produced, that will not vitiate the order of the learned Magistrate. It has also been submitted that opportunity was given to the complainant to produce his witnesses by the Magistrate and, therefore, the order of the Magistrate should not be disturbed. Similar stand has also been taken on behalf of the State.
4. In order to appreciate the point, it would be better to quote Sub-section (2) of Section 202 of the Code of Criminal Procedure, 1973, which reads as follows:
(2) In an inquiry under Sub-section (1), the Magistrate may, if he thinks fit. take evidence of witnesses 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.
Therefore, reading the aforesaid provision, the only requirement of law is that the Magistrate has to call upon the complainant to produce all his witnesses and examine them on oath, if so produced. If the complainant fails to produce some of his witnesses, as in the instant case, in my opinion, that will not vitiate the order of the learned Magistrate. I have gone through the order-sheet, and from the orders dated 10th November, 1976 and 13th November, 1976 it appears that opportunity was given to the complainant to bring his witnesses, and, therefore, it is absolutely Clear that the Magistrate had called upon the complainant to produce his witnesses. Thus, in my opinion, there is substantial compliance of the law, and even if the two witnesses who are named in the petition of complaint have not been examined, that will not make the order taking cognizance against the petitioners bad in law.
5. In the case of Kamal Krishna De 1977 Cri. L. J. 1492 a petition of complaint was filed under various section’s, including Section 307 of the Penal Code, and 9 persons were named as witnesses in the petition of complaint. The Magistrate examined the complainant on solemn affirmation and examined 3 witnesses and ultimately took cognizance under Section 307 and other sections of the Penal Code and further ordered that since Section 307 was exclusively triable by the Court of Session, the accused persons were committed to the Court of Session to face their trial under Section 209 of the Code of Criminal Procedure. The accused persons moved the High Court on the ground that there was non-compliance of Sections 208 and 209 of the Code of Criminal Procedure, and it was also submitted that the Magistrate had failed to comply with the provisions of Section 202(2) of the Code. Their Lordships held that when a Magistrate takes cognizance of an offence he is bound under Section 202(2) proviso to examine on oathr all the witnesses. The failure to do this is not a mere matter of formality, and the subsequent proceedings, therefore, will be illegal. But in that case it has been clearly stated that after three witnesses had been examined on behalf of other complainant, the Magistrate did not even call upon the complainant to produce all his witnesses, which is not the case here. As I have said, opportunity had been given to the complainant to produce his witnesses and the complainant failed to do so. Therefore, the facts of the instant case is clearly distinguishable from the facts of the case reported in 1977 Cri. L. J. 1492 {supra).
6. Learned Counsel for the petitioners has also placed reliance on an unreported decision of this Court in Doctor Rajeshwar Prasad Jaiswal v. Bifia alias Urmilla Criminal Miscellaneous No. 2223 of 1974 disposed of on 3rd August, 1977. In that case a petition of complainant was filed under Section 376 of the Penal Code, and the Magistrate, after examining the complainant on solemn affirmation, sent the case for enquiry to the Block Development Officer and, on protest, it was recalled, and it was sent to Sri M.P. Sinha, Magistrate, 1st class, who examined some of the witnesses named in the petition of complaint and submitted a report that no prima facie case had been made out, and the Chief Judicial Magistrate differed with the aforesaid report and took cognizance under Section 376 of the Penal Code. The matter came to this court, and the order of the Magistrate was set aside, because under the provisions of the new Code of Criminal Procedure the Chief Judicial Magistrate who had examined the complainant on solemn animation had himself to examine all the witnesses named in the petition of complaint and the inquiry could not be entrusted to another subordinate Magistrate, and on that ground the order of taking cognizance was set aside. The facts of this case are completely different, and the order of taking cognizance was set aside on different ground altogether, therefore, this decision has no application to the facts of the instant case.
7. It is, then submitted by Learned Counsel for the petitioners that the allegations made in the petition of complaint are patently absurd and inherently improbable so that no prudent person could come to such conclusion that there was sufficient ground for proceeding against the accused persons and in this view of the matter the order is fit to be set aside. In this connection, my attention has been drawn to a decision of the Supreme Court in Smt. Nagawa v. Veeranna Shivalingappa Konjaigi . In that case a petition of complaint was filed and some witnesses were also examined by the Magistrate, who, on a consideration of the evidence, was satisfied that a prima jacie case had been made out against the accused persons and they were summoned for trial. Being aggrieved by the aforesaid order, the accused persons moved the High Court in revision, and the High Court went into the whole history of the case, examined the merits of the evidence, the contradictions and what it called the improbabilities and, after detailed discussion, not only on the materials produced before the Magistrate by the complainant but also some of the documents filed by the accused, held that the order of the Magistrate was illegal and, therefore, quashed the same. The matter came before the Supreme Court where it was held that once the Magistrate had exercised his discretion, it was not for the High Court or even the Supreme Court to substitute its own discretion for that of the Magistrate or to examine the case on merits with a view to find out that the allegations in the complaint, if proved, would ultimately (sic) and in conviction of the accused. These considerations are totally foreign to the scope and ambit of an inquiry under Section 202 of the Code, and, therefore, the order of the High Court was set aside and of the Magistrate restored. This case, by no stretch of imagination, supports the contention raised on behalf of the petitioners rather, it goes against them. The learned Magistrate, in the instant case, has considered the statements of 4 witnesses, who had been examined by him, and has come to the conclusion that a prima facie case has been made out, and it is not for me to go into the merits of the case and substitute my own discretion. Thus, on a consideration of the point which have been raised in this ease, I find that there is no merit in this application, and it is accordingly dismissed.