Non-compliance with Section 204(2) Cr.P.C. does not vitiate proceedings unless prejudice is caused to the accused.

JUDGMENT :

1. Heard Sri Ratnesh Kumar Jaiswal, learned counsel for the applicants and Dr. S.B.Maurya, learned AGA-I, for the State.

2. The instant application has been moved on behalf of the applicants with the prayer to quash the entire criminal proceedings of Complaint Case No. 4 of 2019, under Section 498-A IPC and Section 3/4 Dowry Prohibition Act, pending in the court of Additional Civil Judge (Junior Division) Court No.5, Mirzapur as well as summoning order dated 30.9.2021.

3. The brief facts of the case for the purposes of present application are that opposite party no.2 is the wife of applicant no.3 and applicant no.1 is her father-in-law while applicant no.2 is her cousin father-in-law. Opposite party no.2 moved an application under Section 156(3) Cr.P.C. against the applicants on 11.10.2018 which was treated by the court below as a criminal complaint and after recording the statement of opposite party no.2 under Section 200 Cr.P.C. and her witnesses under Section 202 Cr.P.C. summons were issued against the applicants on 30.9.2021 under Section 498-A IPC and Section 3/4 Dowry Prohibition Act.

4. Learned counsel for the applicants submitted that he is pressing the instant application on the sole ground that without compliance of mandatory provisions of Section 204 (2) Cr.P.C. summons were issued against the applicants, therefore, summoning order dated 30.9.2021 is bad.

5. He draws the attention of the Court on the order sheet of the case which is annexed as Annexure-5 to the affidavit filed in support of the present application and submitted that the summoning order against the applicants was passed on 30.9.2021 and a week time was given to opposite party no.2 to provide the list of her witnesses. He further submitted that the order sheet dated 27.10.2021 shows that 26.11.2021 was the next date fixed and it was asked to opposite party no.2 to do pairvi, i.e., to provide the list of her witnesses and similar order was passed on 26.11.2021 and thereafter order sheet dated 16.12.2021, 14.2.2022 and 5.4.2022 shows that opposite party no.2 did not do any pairvi in this regard but in spite of that summons were issued and on 5.4.2022 bailable warrants were also issued against the applicants.

6. Learned counsel for the applicants next submitted that as per Section 204 (2) Cr.P.C. no summons or warrants shall be issued against the accused under section 204(1) Cr.P.C. until a list of prosecution witnesses has been filed and, therefore, he submitted that provisions of Section 204(2) Cr.P.C. is mandatory and no summons could be issued to applicants unless opposite party no.2 filed the list of her witnesses and, therefore, the entire proceedings as well as summoning order passed against the applicants is bad.

7. Per contra, learned AGA submitted that there is no illegality in the summoning order issued against the applicants as provisions of Section 204 (2) Cr.P.C. is directory in nature and if the court below without complying the same issued summons to the accused persons, then it does not vitiate the proceedings. He further submitted that the list of witnesses at any time can be provided by opposite party no.2, the complainant.

8. Learned AGA further submitted that applicants cannot said that due to non providing the list of witnesses by opposite party no.2 great prejudice would cause to them and, therefore, the instant application is liable to be dismissed.

9. I have heard learned counsel for both the parties and perused the record of the case.

10. Admittedly, applicants were summoned under Section 204(1) Cr.P.C., under Section 498-A IPC and Section 3/4 Dowry Prohibition Act although, it appears that summons were issued to them without filing the list of prosecution witnesses by opposite party no.2, the complainant. Therefore, the question arises whether on this ground proceedings pending against the applicants can be vitiated and summoning order would become illegal.

11. Section 204 Cr.P.C. deals with the issue of process and runs as fol