ABDULLAH BHAT Vs. GHULAM MOHD

JUDGEMENT

(1.) THE question which the Full Court is called upon to determine may be put as under:

(2.) WHETHER a process issued on a complaint for the appearance of the accused without the complainant filing a list of witnesses in compliance with the provisions of Section 204 (1a) of the Code of Criminal Procedure is an illegality which cuts at the root of the jurisdiction rendering the subsequent proceedings null and void or whether it is a curable irregularity in which prejudice should be the balancing factor. 2a. The facts are these; One, Ghulam Mohd. Wani brought a complaint under Section 494 R. P. C. against Abdullah Bhat and others in the court of Judicial Magistrate 1st Class. Handwara. The complaint was not accompanied by a list of witnesses nor was one incorporated in the petition of the complaint itself. The learned Magistrate, however, examined the complainant and his one witness and issued process for the appearance of the accused. After the accused put in their appearance, the complainant filed a list of witnesses who were summoned and examined by the complainant and then also cross-examined by the accused who were represented by a lawyer. Eventually, two of them were committed for trial to the Court of Session and those remaining were discharged. In the Sessions Court an objection was raised on behalf of the accused that the proceedings were invalid from the very start for the reason that the accused were summoned initially without the complainant filing a list of witnesses as required under Section 204 (1-A ). The learned Sessions Judge overruled the objection. The accused have come in revision to this Court, which was heard by two of us. In the course of hearing it transpired that there was a divergence of judicial opinion as regards the effect that the non-compliance with Section 204 (1-A) of the Code of Criminal Procedure would have on the subsequent proceedings. As such the case has been referred to the Full Court for an authoritative pronouncement in the matter.

(3.) SECTION 204 (1-A) of the Code of Criminal Procedure reads: No summons or warrant shall be issued against the accused under Sub-section (I) until a list of the prosecution witnesses has been filed.