YAMANAPPA SANGAPPA HULAGERI Vs. KALLAPPA SALABAPPA GANGANAGOUDAR

JUDGEMENT

(1.) CRIMINAL Petition 619/02 has been referred to the Division Bench for purposes of resolving the law with regard to the question as to whether, in the case of a private complaint instituted before the learned Magistrate, the requirement of setting out the list of witnesses on whom the complainant proposes to place reliance is mandatory and secondly, as to whether in the event of the complainant not setting out the list of witnesses the breach is fatal as to require the dismissal of the complaint on the ground that the mandatory requirements of law have not been complied with. The entire debate has virtually emanated because of the provisions of section 204 Cr. P. C. which are reproduced below -

(2.) IT is essentially, in this background that we are required to reconcile the legal position or rather, to lay down very clearly as to what the correct course of action would be. In the first instance, the learned Advocates who have advanced their submissions before us are right when they point out that under the provisions of Section 204 (2) the filing of the list of witnesses is essential and in one of the decisions referred to above the learned Judge has even clarified the position that the case being one under Section 138 of the negotiable Instruments Act and where the only witness is the complainant, that it is equally necessary for the complainant to file a memo stating that the complainant is the only witness and that there are no other witnesses. There can be no two opinion about the fact' that even though in a private complaint unlike in a case instituted on a police charge sheet, the accused does not have the benefit of the witness statements, in other words, knowing precisely as to what is the evidence that is going to be used against the accused, but at the same time, the law makes it obligatory for the complainant to atleast disclose the names of the witnesses so that the accused in relation to the contents or averments in the complaint will be able to correlate as to what precisely is the role of these witnesses and gauge as to what is the nature of the evidence that will have to be dealt with. We do agree that there are instances wherein the breach of a mandatory provision would affect the very basis of the proceeding and that consequently, where an application for quashing is made before the High Court that inevitably the proceeding will have to be quashed. There are instances such as those set out in Chapter 35 of the Cr. P. C. wherein the breaches are rectifiable. This has obviously been provided for in order to ensure that there is no wastage of judicial time and furthermore, that the complainant is not put to avoidable wastage of time and resources by having to reinstitute the proceeding if it can be corrected and saved. The entire debate has emanated because sections 460 and 461 Cr. P. C. setout a number of situations which vitiate and do not vitiate a proceeding but the present state of affairs does not figure there. That is why the issue is required to be independently decidabfe.

(3.) WE have already dealt with the intended or possible prejudice aspect to the accused which is the genesis for making it compulsory to disclose the list of witnesses. Normally, where there is compliance with the provisions of Section 204-2, the accused will receive the copy of the complaint along with the summons or warrant and therefore be fully posted of the case made out and the witnesses who are going to depose in favour of the prosecution. The short question that we need to examine is as to whether any prejudice is caused to the accused at this point of time if the list of witnesses is not disclosed and in our considered view, the answer to that question is in the negative for the simple reason that process only enforces the presence of the accused before the Court and accused still has an adequate opportunity of dealing with the case because the complainant's evidence is yet to be led and, well before that stage the list of witnesses is bound to be disclosed as soon as the error comes to the notice of the Court. Consequently, in our considered view, there is no justification for the plea that the non-filing of the list of witnesses will render the proceeding ab initio void or that this infirmity would ipso facto justify an order for quashing of the proceedings. We accept the position that the error is rectifiable as is essentially the view that has been enunciated in the majority of decisions.