1. By the medium of this petition, petitioner has invoked the jurisdiction of this court for quashing the proceedings drawn and order dated 12.04.2012, for short impugned order, passed by 1st Class Judicial Magistrate (1st Additional Munsiff), Srinagar, in the complaint titled Yasmeen Ahad v. Ayeen Afroz, on the grounds taken in this petition.

2. It appears that the trial court issued process against the accused/petitioner, who caused his appearance before the trial court and raised a plea that the complaint was not maintainable and merit to be dismissed on the ground that complainant has not annexed the list of witnesses with the complaint. After hearing learned counsel for parties, the trial court in terms of the impugned order rejected the plea of petitioner/accused and directed complainant/respondent to submit list of witnesses by next date of hearing.

3. The moot point for consideration is whether the impugned order is legally correct or otherwise?

4. It is profitable to reproduce sub-section (1)(a) of Section 204 of Criminal Procedure Code, for short.the Code, herein, which reads as under:-

"204. Issue of process.—(1) If in the opinion of a Magistrate taking cogni#31;zance of an offence there is sufficient ground for proceeding, and the case appears to be one in which, according to the forth column of the Second Schedule, a summons should issue in the first instance, he shall issued his summons for the attendance of the accused. If the case appears to be one in which, according to that column, a warrant should issue in the first in#31;stance, he may issue a warrant, or, if he thinks fit, a summons, for causing the accused to be brought or to appear at a certain time before such Magistrate or (if he has not jurisdiction himself) some other Magistrate having jurisdiction.

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

(1-b) In a proceeding instituted upon a complaint made in writing, every summons or warrant issued under sub-section (1) shall be accompanied by a copy of such complaint].

(2) Nothing in this section shall be deemed to affect the provisions of section 90.

(3) When by any law for the time being in force any process fees or other fees are payable, no process shall be issued until the fees are paid, and, if such fees are not paid within a reasonable time, the Magistrate may dismiss the complaint".

5. The aim, object and purpose of annexing the list of witnesses with the complaint, which the complainant has to examine in support of the allegations, is that accused must get fair chance in order to conduct cross examination of the said witnesses.

6. Calcutta High Court in case titled as Ali Jan v. Amir Khan, reported in AIR 1957 Calcutta 332, has observed as under:-

"(3).............All that S.204 (1-A) is designed to serve is that the accused should be apprised at the earliest point of time of the persons who are likely to give evidence against him.............."

7. It appears that without complying with the provisions of sub-section 1(a) of Section 204 of the Code, process came to be issued. However, after detecting the irregularity the Magistrate asked complainant to furnish list of witnesses in terms of order dated 12.04.2012.

8. The full Bench of this Court in case titled as Abdullah Bhat v. Ghulam Mohammad Wani, reported in 1972 Cr. LJ 277:2010 (9) JKJ HC-860 (FB), has held that failure to file list of witnesses is an irregularity and can be cured provided no prejudice is caused. The trial court has rightly directed the complainant to file list of witnesses in terms of the impugned order.

9. This Court in judgment dated 06.06.2006 delivered in Cr. Rev. No. 18/2004 titled Kala Khan v. Mohammad Yosuf & Ors, has taken the same view.

10. Keeping in view the aforesaid said facts, the Magistrate has rightly passed the impugned order.

11. In the given circumstances, it is hereby held that sub-section 1(a) of Section 204 of Cr. P.C. is

Click Here to Read the rest of this document