J.N. Chaudhury, J.@mdashIn the present case arising out of Case No. 34C/81 pending in the Court of the S.D.J.M., Ghatal, the learned
S.D.J.M., in an exclusively Sessions triable case initiated on a complaint after taking cognizance, issued process against the accused under Sections
147 \ 380 \ 436 I.P.C. without examining on oath all the witnesses of the complainant or calling upon the complainant to produce all his witnesses
for such examination as was mandatory on him under the proviso to Section 202 (2) Cr.P.C. The offence u/s 436 I.P.C. is exclusively triable by
the Court of Sessions. The orders of the learned S.D.J.M. being order no. 1 dated 4. 2. 81 and order no. 2 dated 5. 2. 81 out of which the
present revisional application arises, make the same abandantly clear.Mr. Banerjee appearing on behalf of the petitioners relied on a Bench
decision of this Court reported in 81 CWN 976 (Kamal Krishna De and others vs. State and others). The said decision has relied on a decision of
the Supreme Court reported in Gurbachan Singh Vs. State of Punjab, . It is settled law that in an exclusively sessions triable case the proviso to
Section 202 (2) comes into operation and it is incumbent upon the learned Magistrate to act in accordance with the same. Learned Advocate
appearing on behalf of the State fairly concedes that from the records it will, in fact, appear that all the witnesses of the complainant were neither
examined on oath nor did the learned S.D.J.M. call upon the complainant to produce them.
2. Accordingly, both the orders of the learned Magistrate referred to above are set aside and the proceedings are quashed. The learned Magistrate
will begin from the stage prior to the issue of process and will proceed in accordance with law, in the light of the observations made above. The
Rule is made absolute.
Let the records be sent back forthwith with.
