The mandatory nature of Section 204(2) of the Code and its implications on the issuance of summonses and the filing of a list of witnesses.

( 1 ) THIS is a petition under Section 452 of the Code of Criminal Procedure ('the code' for short ). H. L. Keshsva Murthy, petitioner No. 1 and P. Lankesh, petitioner No. 2 have prayed in this petition to quash the proceedings initiated against them by the Metropolitan Magistrate, IV court, Bangalore in C. C. No. 758 of 1985 on his file, on the grounds stated in the petition.

( 2 ) I have heard the learned counsel for both parties and learned High court Government Pleader for the State. I have perused the record of the proceedings.

( 3 ) THE facts material and relevant for the present purpose are these : h. Veeraiah, the respondent lodged a written complaint against the petitioners before the Magistrate on 21-2-1985 allaging that each of the petitioners had committed an offence punishable under section 500 of the Indian Penal Code.

( 4 ) IT appears from the record that on the same day, that is, on 21-2-1985 the sworn statement of the respondent was recorded by the Magistrate and the two documents viz, (i) copy of the issue of 'lankesh Pathrike' dated 10-6- 1984 and (ii) copy of the notice sent by the respondent to the petitioners through his Advocate on 2-7-1984, were received in evidence. The Magistrate p esumably after hearing the complainant or his advocate, adjourned the matter for orders to 22-2-1985 and thereafter to 1-3-1965. On 1-3-1985 the Magistrate proceeded to pacs the following order :"perused sworn statem'ent of the complainant and Ex. P. 1 and Ex. P. 2 which prima facie reveal that the complainant is described as criminal presumably with intent to lower his reputation. Hance, I hold that the sufficient grounds are made out to proceed against Accused-1 and 2 for offence under Sec. 500 IPC. Hence, register a case u/s. 500 IPC against accused-1 and 2 and issue S/s to accused to appear before this Court to answer the charge levelled against them. . . . . . . . . "

( 5 ) IT appears, pursuant to this order summonsas were directed to the petitioners and that they, in response to the summonses entered appearance before the Court.

( 6 ) SRI P. Shivanna, learned Counsel for the petitioners, reading the provisions contained in Scetion 204 (2) of the Code, inviting my attention to several decisions to which I would advert a little later, urged that the provisions under Section 204 (2) cf the Code are mandatory and the Magistrate having issued summonses to the petitioners in contravention of the said provisions, the proceedings initiated against the petitioners are liable to be quashed.

( 7 ) SRI R. S. Chakrabavi, learned counsel for the respondent submitted that the respondent had no other witnesses except himself to substantiate and prove the allegations levelled against the petitioners that therefore, he had neither mentioned the names of the witnesses in the complaint nor enclosed a list of witnesses with the complaint and that therefore, there was no occasion for the Magistrate to comply with the mandate of law stated in Section 204 (2) of the Code. Elaboratirg further, he contended that even if it is assumed for the sake of arguments that there has been non-compliance with the mandatory provisions of law, in view of the fact that the respondent has no witnesses to examine in support of his allegations, the case does not call for exercise of inherent jurisdiction of this court under Section 482 of the Code.

( 8 ) SRI S. S. Koti, learned High Court government Pleader supporting the submission of Sri Shivanna, stated that in view of the clear illegality attached to the order of the learned Magistrate directing the summonses to the petitioners, that part of the order may be set aside and the matter may be sent back to the Magistrate to proceed further in accordance with law.

( 9 ) SECTION 200 of the Code, under the Heading - Complaints to Magistrates provides :"a Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance o