The question which the Full Court is called upon to determine may be put as under: --

Whether a process issued on a complaint for the appearance of the accused without the complainant filing a list of witnesses in compliance with the provisions of Section 204 (1-A) of the Code of Criminal Procedure is an illegality which cuts at the root of the jurisdiction rendering the subsequent proceedings null and void or whether it is a curable irregularity in which prejudice should be the balancing factor.

2. The facts are these: One. Ghulam Mohd. Wani, brought a complaint under Section 494 R. P. C. against Abdullah Bhat and others in the Court of Judicial Magistrate 1st Class, Handwara. The complaint was not accompanied by a list of writ-nesses nor was one incorporated in the petition of the complaint itself. The learned Magistrate, however, examined the complainant and his one witness and issued process for the appearance of the accused. After the accused put in their appearance, the complainant filed a list of witnesses who were summoned and examined by the complainant and then also cross-examined by the accused who were represented by a lawyer. Eventually, two of them were committed for trial to the Court of Sessions and those remaining were discharged. In the Sessions Court an objection was raised on behalf of the accused that the proceedings were invalid from the very start for the reason that the accused were summoned initially without the complainant filing a list of wit­nesses as required under Section 204 (1-A). The learned Sessions Judge overruled the objection. The accused have come in revision to this court, which was heard by two of us. In the course of hearing it transpired that there was a divergence of judicial opinion as regards the effect that the non-compliance with section 204 (1-A) of the Code of Criminal Procedure would have on the subsequent proceedings. As such the case has been referred to the Full Court for an authoritative pronouncement in the matter.

3. Section 204 (1-A) of the Code of Criminal Procedure reads: -

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

4. Viewed strictly, on its terms the provision may suggest that any violation thereof cuts at the root of the jurisdiction and renders the subsequent proceedings void but that is not, in our opinion, a true criterion. In matters like the present it is the essence and not the form which should weight with courts in assessing the nature of the violation and its effect. The real test should be whether the violation is so vital that it strikes the foundation of the concept of a fair trial contemplated by the Code of Criminal Procedure or in any case whether it is so repugnant to the well-settled principles of natural justice that it would amount to negation of such principles or is of a less vital character involving a technical and not a substantial departure from such concept or principles as aforesaid. In the first case the court may at once strike down the proceedings as illegal but not so in the second case when it should pause and see if any prejudice was in fact occasioned to the accused.

5. This is, in our opinion, the recent trend of judicial thinking summed up by Honble Bose J. in AIR 1956 S. C. at page 122 where His Lordship says: -

"We prefer this way of stating the law. for the distinc­tion that was once sought to be drawn between an express prohibition and an equally express provision positively stated strikes as unreal. The real question is not whether a matter is expressed positively or is stated in negative terms but whether disregard of a particular provision amounts to substantial denial of a trial as contemplated by the Code and understood by the comprehensive expres­sion natural Justice."

"It will be observed that disregard of an express prohibi­tion was regarded as curable in "Zahiruddin V. Emperior" AIR 1947 PC 75, so the question whether a part

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