ORDER
M. Karpagavinayagam, J.
1. The petitioner Munisamy is an accused in a complaint filed by the respondent Mrs. Perumal Dhanalakshmi for the offences 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 offence, 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 Sub-section (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 offence. 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 proof of the same.
9. In the instant case, according to the prosecution, the complainant, who is the victim was attempted to be attacked by the accused inside the premises of the complainant. It is also mentioned about the various documents to prove that the complainant was in lawful possession of the premises. In proof of the same, she referred about various documents, which has been enclosed along with the complaint. Therefore, the non-filing of the list of witnesses along with the complaint would not have any impact on the validity of the issuance of summons on the basis of which the valid cognizance has been taken by the lower court. Further more, the careful reading of Section 204(2) of the Code of Criminal Procedure would show that the section is not mandatory. The use of the word ‘shall’ as contained in Section 204(2) does not always mean that the particular section is obligatory or mandatory.
10. As referred earlier, the object of the said provision is to enable the accused to know the case he has to meet, which was expected to be put-forth, through those witnesses listed in the complaint. This procedure, is obviously deemed important, because in the case of the final report filed by the police, there would have been investigation, during the course of which, the statements of witnesses would have been recorded, apart from collection of documentary evidence. All the materials collected during the investigation by the police would be forwarded along with final report Under Section 173 of Code of Criminal Procedure. On the appearance of the accused, these documents, in law, will have to be supplied to him before the commencement of trial.
11. To achieve the same purpose, in a private complaint, the object of law is that the list of witnesses, whom the complainant will choose to examine must be appended to the complaint. If that object and purpose intended by Section 204(2) of the Code of Criminal Procedure is otherwise satisfied, without any prejudice, being caused to the accused, merely because the list of witnesses had not been filed along with the complaint, pending prosecution, complaint cannot be said to be unsustainable.
12. The Full Bench of Jammu and Kashmir High Court in Abdullah Bhat v. Chulam Mohammed Wani, 1972 Crl.L.J. 297 held that the non-compliance of the Section 204(1-A) of the old Code corresponding to Section 204(2) of the present Code was not an illegality which rendered subsequent procedure, null and void, but was a curable irregularity.
13. It is further stated in the said judgment that Section 204(1-A) contained salutary provision made solely for the purpose of protection and benefit of the accused and had to be complied with normally and as per the said decision, the compliance of the said provision is not mandatory without prejudice caused to the accused and as such it will not vitiate the facts.
14. When a similar question has been raised before this court, Arunachalam, J, as he then was, in Crl.O.P. No. 8136 of 1990 dated 17.12.1993 held that non compliance of Section 204(2) is only directory which will not invalidate the cognizance already taken.
15. In yet another decision in Salar Solvent Extractions Limited and Anr. v. South India Viscose Limited and Anr., 1994 MLJ (Crl) 490, Pratap Singh, J, as he then was, held that Section 204(2) is not mandatory and failure to furnish the list of witnesses cannot result in quashing all the proceedings at the threshold.
16. However, even the question of prejudice would not have any role in this case, because, according to the complaint on which the cognizance has been taken was only with reference to the incident took place inside the house, where as single witness, being the victim was present.
17. Therefore, I am of the view that, besides holding that Section 204(2) of the Code of Criminal Procedure is not mandatory, in the instant case, on the facts and circumstances, the list of witnesses is not at all necessary for taking cognizance and also to issue summons to the accused.
18. In the circumstances, I hold that in this case, both cognizance taken and the issuance of summons made by the court is perfectly valid and the same does not suffer from illegality what-so-ever.
19. Therefore, I dismiss the revision as devoid of merits. The trial court is directed to take up the case immediately after the receipt of the records, if any and the copy of the order from this court, dispose of the case, as expeditiously as possible.