Section 204(2) of the Code of Criminal Procedure is not mandatory and the non-filing of the list of witnesses along with the complaint does not invalidate the cognizance taken or the issuance of summons to the accused.

1. The petitioner Munisamy is an accused in a complaint filed by the respondent Mrs. Perumal Dhanalakshmi for the of fences punishable under Sections 441, 448 and 511 of Indian Penal Code in STR No. 212 of 1995 on the file of the Chief Judicial Magistrate, Pondicherry.

2. On service of summons in the above complaint, the petitioner filed a petition before the lower court in Crl.M.P. No. 518 of 1996 requesting the lower court to dismiss the

complaint under Section 204(2) of the Code of Criminal Procedure. On hearing both the parties, the lower court dismissed the said petition, holding that the complaint was validly made. Hence, this revision.

3. The only point that was urged before the lower court as well as this Court is that the complaint filed in this case was not sustainable in law since section 204(2) of the Code of Criminal Procedure would provide that the summons shall not be issued against the accused until a list of prosecution witnesses is filed and that in the instant case, the complaint was filed without the list of witnesses and that, therefore, the complaint ought to have been dismissed.

4. Section 204 provides thus:

Section 204(1) : If in the opinion of a Magistrate taking cognizance of an of fence, there is sufficient ground for proceedings and the case appears to be

.(a) a summons case, he shall issue his summons for the attendance of the accused; or

.(b) a warrant case, 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 no jurisdiction himself) some other Magistrate having jurisdiction;

Section 204(2) No summons or warrant shall be issued against the accused under Subsection (1) until a list of the prosecution witnesses has been filed.

5. The reading of the section would not provide any bar on the courts from taking cognizance on the complaint being filed without the list of prosecution witnesses. However, it would provide that summons shall not be issued against the accused till the list if prosecution witnesses is filed. Therefore, it cannot be contended that the complaint has not been validly made to facilitate the court to take legal cognizance.

6. The only question to be answered in the instant case is whether the issue of summons on the accused without the list of prosecution witnesses being filed along with the complaint would be an illegality, which would vitiate the proceedings; In other words, this Court is called upon to decide as to the effect of the issuance of summons on the accused, in a complaint filed without the list of prosecution witnesses.

7. Heard both sides and records perused. The reading of the complaint and the sworn statement and the counter filed by the complainant for the above said application before the lower court would make it clear that the alleged occurrence had taken place inside the premises of the complainant, and except the complainant, the victim, no body was available inside the house to witness the occurrence. As provided in the Evidence Act, the court is called upon to decide the issue raised in Criminal cases, only on the basis of the quality of the evidence adduced by the person and not on the evidence of the quantity of the persons.

8. Therefore, even in a case where a single witness is available, the court very well could come to the conclusion, whether the said witness is found to be reliable, and the accused was guilty of the of fence. Therefore, the wording contained in Section 204(2) to the effect that the summons shall not be issued till the list of witnesses is filed, should not be taken to mean, that the entire proceedings initiated is vitiated. The purpose of introduction of this sub-section containing these words as referred above, is only to make the accused to know about the nature of accusation and who are all the witnesses to speak about such accusation in pro of of the same.

9. In the instant case, according to t