BIMAL ROY Vs. AUTOMOBILE HOUSE & ORS

JUDGEMENT

(1.) This revisional application is directed against the order dated 2nd December, 1998 passed by Shri C. C. Mitra, learned Chief Judicial Magistrate, Alipore in Case No. C. 1677 of 1997 rejecting the application of the petitioner filed under section 204(2) of the Code of Criminal Procedure. In that petition, the petitioner-accused stated that the complainant having not appended a list of witness to the complaint no process under section 204, Cr. P. C. could be issued in view of the provisions of sub- section (2) of section 204, Cr. P. C. and hence the petitioner prayed for an order stopping the proceedings. The learned Magistrate, after hearing the both sides, passed an order rejecting this petition. Being aggrieved, the accused has preferred this revisional application before this Court challenging the impugned order as illegal and improper and hence liable to be dismissed. The revisional application has been contested by all the opposite parties including the State. However, the learned advocate appearing for the State supports the revisional application and has contended that it should be allowed in view of the mandatory provisions of section 204(2), Cr. P. C.

(2.) Giving careful thought and consideration to the arguments advanced by all the sides, I am of the view that the revisional application cannot be allowed. Although the provisions of section 204(2) of the Cr. P. C. are mandatory in nature, in view of the provisions of section 465, Cr. P. C. the proceedings in question should not be given a go-bye. Under section 465, Cr. P. C. it is provided that no order passed by any Court of competent jurisdiction shall be reversed or altered by a court of revision on account of any error, omission or irregularity in the complaint under this Code unless in the opinion of the Court, a failure of justice has, in fact, been occasioned thereby. Subsection (2) of section 465, Cr. P. C. lays down that in determining whether any such irregularity or omission has occasioned a failure of justice, the Court shall have regard to the fact whether the objections could and should have been raised at an earlier stage of the proceedings. In our present case, the complainant omitted to file necessary list of witnesses to the complaint which he was under an obligation by virtue of the provisions of the Code to append to the complaint. But, simply due to this omission, it would not be proper to put an end to the entire proceeding unless it is ascertained that as a result of such omission the accused persons have been subjected to any irreparable prejudice.

(3.) The trial of the case has not yet commenced. Therefore, if at this stage the complainant submits a list of witnesses, the accused cannot be said to suffer any prejudice in any way. The whole object of incorporating this provision is to enable the accused to have an idea before hand as to the nature of the evidence to be adduced by the complainant including the names of the witnesses to be examined by him. If, before the trial commences, such a list is appended by the complainant, the accused certainly cannot raise the plea of prejudice. That being the position in view of the aforementioned provisions of section 465, Cr. P. C. in the absence of any case of failure of justice being made out it will not be just or proper to quash the impugned proceeding, merely on the ground of complainant's omission to append a list of witnesses in the complaint.