Modi, J.—This is a reference by the Additional District Magistrate Alwar and raises an interesting question of procedure.

2. The material facts may be stated briefly as follows. The petitioners Nathia and another instituted a complaint against the opposite parties Sonia and others under secs. 323 352 and 504 I. P. C. in the court of the Sub-Divisional Magistrate, Rajgarh, on the allegations that the accused while purporting to build on their land on the 23rd January, 1953, had really encroached on a public thoroughfare, and on the petitioners remonstrating against that, the accused Sonia and Bhoria beat them with lathis and the other accused Kana and Hukama threw stones at them as a result of which they received a number of injuries. It was further alleged that some other persons residing in the village intervened between the parties otherwise the petitioners would have been given a still severe beating. The petitioners appear to have got themselves medically examined. On the 29th January, 1953, the Sub-Divisional Magistrate transferred the case to the court of the First Class Magistrate, Rajgarh, and process was issued against the accused. The accused appeared and their statements were recorded under sec. 242 Cr.P.C. on the l4th April, 1959, and the case was then adjourned to the 15th May, 1959, for the complainants evidence. On the last mentioned date, three witnesses for the prosecution, namely Budha, Anla and the doctor in charge of the dispensary at Gangred who had examined the petitioners were present. The evidence of Budha and Anla was recorded by the Magistrate but when the doctor was sought to be examined, counsel for the accused raised the objection that he could not be examined as his name bad not been mentioned in the list of witnesses filed under sec. 204(1-A). The Magistrate finding that the name of the doctor had not been mentioned in the list declined to examine him further declined to examine she complainants and closed their evidence and fixed the case for the examination of the accused under sec. 342 Cr.P.C. Aggrieved by such closure of their evidence, the petitioners went in revision to the Additional District Magistrate, Alwar, who has made the present reference. The grievance of the petitioners was that the Magistrate had fallen into serious error, firstly, in declining to allow the petitioners Nathia and Rewad to examine themselves in support of their own case, and secondly in declining to examine the doctor who had already been summoned and was present in court on the 19th May, 1959.

3. The question of procedure which emerges for determination in these circumstances is whether the Magistrate was justified in refusing to examine the medical witness and the petitioners (who were complainants) who were present in court simply because their names had not been mentioned in the list filed under sec. 204 (1-A) Cr.P.C. The material portion of this section reads as follows:

"No summons or warrant shall be issued against the accused under Sub-section (1) until a list of the prosecution witnesses has been filed."

This provision, let it be noted, was added by the Criminal Procedure Amendment Act (No. XXVI) of 1955. Broadly speaking, this provision forbids the issue of summons or warrant against the accused until the list of the prosecution witnesses has been filed. It may also be added that the proper time for the filing of such a list would obviously be the time of lodging the complaint. The question, however, which arises for determination is whether this section enacts a complete bar against the examination of any witness or witnesses for the prosecution whose names may not have been mentioned in the list. Reference may be! made in this connection to sec. 244 of the Code which provided that if the Magistrate does not convict the accused on his admission or the accused does not make any such admission, the Magistrate shall proceed to hear the complainant, if any, and take all such evidence as may be produced in suppo

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