Magistrate inquiry under Section 202: named witnesses need not all be examined, and delayed Section 482 challenge failed

In an enquiry for an offence triable exclusively by the Court of Session, the Magistrate must call upon the complainant to produce and examine the witnesses relied on, but is not required to independently summon every person named in the complaint. Cognizance may validly rest on the statements of the witnesses actually produced and examined, so the order is not vitiated merely because some named witnesses were left out. A challenge under Section 482 CrPC must also be brought within a reasonable time; where the petition was filed after substantial delay, the court treated it as belated and declined interference with the cognizance order.

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Issues: (i) Whether, in a case triable exclusively by the Court of Session, the Magistrate is bound to examine all witnesses named in the complaint under the proviso to Section 202(2) of the Code of Criminal Procedure, 1973; (ii) Whether a petition under Section 482 of the Code of Criminal Procedure, 1973 challenging the cognizance order was liable to be rejected as belated.

Issue (i): Whether, in a case triable exclusively by the Court of Session, the Magistrate is bound to examine all witnesses named in the complaint under the proviso to Section 202(2) of the Code of Criminal Procedure, 1973.

Analysis: The proviso to Section 202(2) obliges the Magistrate, where the offence is exclusively triable by the Court of Session, to call upon the complainant to produce all his witnesses and to examine them on oath. The provision does not require the Magistrate to independently summon and examine every witness named in the complaint if the complainant chooses not to produce some of them. Cognizance can validly rest on the statements of the witnesses actually produced and examined during the enquiry.

Conclusion: The cognizance order was not vitiated merely because some named witnesses were not examined, and the contention against the order failed.

Issue (ii): Whether a petition under Section 482 of the Code of Criminal Procedure, 1973 challenging the cognizance order was liable to be rejected as belated.

Analysis: Though Section 482 contains no express period of limitation, the remedy is expected to be invoked within a reasonable time. A challenge brought after a long delay, particularly after the accused had repeatedly avoided appearance and obstructed progress of the case, was treated as unjustified. The delay of about one year and six months from the cognizance order was held to be unreasonable in the circumstances.

Conclusion: The petition under Section 482 was held to be belated and without merit.

Final Conclusion: The Court upheld the cognizance order and declined to exercise inherent jurisdiction in favour of the petitioners, resulting in dismissal of the criminal miscellaneous case.

Ratio Decidendi: In an inquiry under the proviso to Section 202(2), the Magistrate must call upon the complainant to produce and examine his witnesses, but is not required to summon every witness named in the complaint; and a challenge under Section 482 must be brought within a reasonable time, failing which the Court may decline interference.

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