Charanjit Talwar, J.
(1) A complaint alleging that Padmawati was burnt to death on 24th July, 1979 by her husband Vishnu Bhagwan petitioner, herein was filed by Nawal Kishore father of the deceased, on November 5, 1979. In all, 10 witnesses have been named by the complainant in in the list of witnesses; one of them is a medical officer of the Ram Manohar Lohia Hospital where Padmawati had been admitted. After the complainant and five of the witnesses had been examined by the learned Magistrate, he (complainant) made the following statement :
'I close the preliminary evidence.'
(2) I may note here that excepting for postmortem report of the deceased, the other medical evidence pertaining to her has not been produced by the complainant. The learned Magistrate by his order dated 26th November, 1981 has parima facie found that an offence under section 302 of the Indian Penal Code, is made out against the petitioner herein. Hence, he has issued summons for his appearance. The said order is being impugned in this petition. The main contention of Mr. Soni is that it was incornbent upon the Magistrate to record the evidence of all the complainant's witnesses prior to issuing of the said summons. It is urged that the provision of sub-section. (2) of Section 202 of the Code of Criminal Procedure are mandatory and not having been complied with, the proceedings are vitiated and the impugned orders of summons are liable to be quashed. Sub-section (2) of Section. 202 of the Code 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 Sessions, he shall call upon the complainant to produce all his witnesses and examine them on oath.'
(3) It is true that the procedure laid down in the above sub-section is not a mere formality. The Magistrate taking cognizance on a complaint for an offence triable exclusively by the Court of Session, is to examine all the witnesses of the complainant, but if the complainant is satisfied with the examination of some of his witnesses and closes his case, the Magistrate cannot direct him (complainant) to summon the rest of the witnesses named in the list of witnesses. It is open to the complainant to give up some of the witnesses. In the present case, the statement made by the complainant as noticed above shows that he was for the time being satisfied by the evidence which he had already produced. Mr. K. L. Arora, learned counsel for the complainant-respondent herein, has made a statement before me that infact, the complainant is not wanting to produce any further evidence in the enquiry. The statement made by the complainant before the Magistrate, according to Mr. Arora, was made under some mistake.
(4) It is neither necessary nor proper for me to go into the merits of the case and assess the evidence produced in the enquiry. The learned Magistrate's judicial discretion summoning the petitioner herein, is based on the evidence of 6 witnesses produced by the complainant. Mr. Soni's submission is that if the rest of the evidence including testimony of the doctors who had attended on Padmawati when she was admitted in the hospital had been recorded, the learned Magistrate would not have come to the view that prima facie case is made out against the petitioner. According to him, Padmawati was first admitted to Ram Manohar Lohia Hospital with 100 per cent burns and thereafter shifted to Sir Ganga Ram Hospital, where she died, at about 5.00 P.M., on 24th July, 1972. His submission is that the record would conclusively prove that Padmawati was unconsious throughout and hence that record would nagative the case of the complainant that she had made doing declaration to her mother, at about 4.00 P.M. while in Sir Ganga Ram Hospital.
(5) In my view, the complainent, if he chooses to give up some of his witnesses during the enquiry or is satisfied and closes his evidence after producing some of his witnesses, he cannot be compelled by the Magistrate to produce the rest of his witnesses. The risk is entirely that of the complainant. If the facts and circumstances of the case so require, the Magistrate holding the enquiry can summon them as court witnesses. In the present case, as noticed above, the medical evideence apart from the post-mortem report, has not been brought on record. Whatever the effect of that record, in my view, it is in the interest of justice that record the produced during the enquiry to enable the accused to prepare his defense and to argue that no charge is to be framed against him. The medical evidence in a case of this nature, if available is necessarily to be produced in the present case during the pendency of this complaint. The case registered against the petitioner herein, by the police on 24th July, 1979 was got cancelled by- the Investigating Agency on 20th February, 1980. It was, thereafter that the complainant's evidence was recorded by the learned Magistrate. The tastimony of the complainant was recorded on 1st August, 1980 and the last witness, PW6 Dr. S.K. Khanna, who had conducted post-mortem, was produced on 27th August, 1981. The complainant, thereafter, closed his evidence without producing the medical record pertaining to the deceased which must have been prepared in the two hospitals To secure the ends of justice, I direct that, that record be got produced through court-witnesses. In case, that medical record was handed over to the Investigating Agency, during investigation of the case by the police, that record be summoned by the Magistrate from the Agency.
(6) Mr. Soni submiti that is the view which I have taken, the petitioner is entitled to be discharged and that the impugned order of summoning the accused is liable to be quashed. According to him, till the evidence under section 202 of the Code is recorded, the accused cannot be summoned. The contention is that as I am directing recording of further evidence, during enquity under section 202 of the Code, the presence of the accused in pursuance of the summons, would be illegal and unjustified. This,submission is misplaced. The complainant is not being directed to produce further evidence, he is satisfied with the evidence already produced. The learned Magistrate in exercise of the judicial discretion is prima facie satisfied on that evidence, that a case is made out against the accused. I am not interfering with that finding. The medical evidence is being directed to be produced in the enquiry not only to safeguard the interest of the petitioner but otherwise to secure the ends of justice. To achieve that end, it is not necessary to quash the impugned order of the learned Magistrate. However, it be held in abeyance till such time the court witnesses, as per my directions above, are examined. thereforee the petitioner be directed to appear in Court.
(7) With these observations, the petition is disposed of.