IN THE HIGH COURT OF UTTARANCHAL AT NAINITAL (Chapter VIII, Rule 32(2) (b) Description of Case Criminal Misc. Appeal No. 576 of 2008 Date of decision : 10th September, 2008 A.F.R. (Approved for Reporting) ___________________________ Not approved for reporting Date : 10.09.2008 Initials of Judge Note :- Bench Reader will attach this at the top of the first page of the judgment when it is put up before the Judge for signature. IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Misc. Application No. 576 of 2008 Arun Khattar S/o Shri Laxman Das, R/o 13/2, 46 Civil Lines Roorkee, Near Sant Jhons School, Roorkee, P.S. Kotwali Roorkee, District-Haridwar. …… Petitioner Versus State of Uttarakhand & another. …… Respondents Mr. Pawan Kumar, Advocate for the petitioner. Mr. Nandan Arya, Assistant Government Advocate for respondent no. 1. None for respondent no.2 Hon’ble J.C.S. Rawat, J. Mr. Pawan Kumar, Advocate for the petitioner. Mr. Nandan Arya, Assistant Government Advocate for respondent no.1. None for respondent no.2 2. The learned Judicial Magistrate vide its impugned summoning order dated 21.8.2008, has taken the cognizance of the offence punishable under Section 138 of the N.I. Act and directed to issue the process under Section 204 Cr.P.C against the accused-petitioner. 3. The main thrust of the learned counsel for the petitioner is that the process against the petitioner cannot be issued under Section 204 Cr.P.C. as the learned Magistrate has to comply with the provision of sub-section 2 of Section 204 Cr.P.C. which provides that the magistrate would not issue summons or warrant against the accused until a list of the prosecution witnesses has been filed. 4. The main object of the provision of section 204 (2) of Cr.P.C. is to enable the accused to prepare himself for his cross-examination. Though in the present case, the list of the witnesses has not been filed as provided under Section 204 (2) of Cr.P.C. but taking into consideration Section 465 of Cr.P.C, issuing processes cannot be set aside unless it has resulted in failure of justice. Nothing has been shown in the complaint by which it could be concluded that any prejudice is caused to the petitioner. The petitioner has filed the copy of statement of the complaint/respondent no. 2 recorded under Section 200 Cr.P.C and other documents, which has been filed by the complaint before the trial court but there is nothing to conclude that prejudice has been caused to the petitioner in default of not pursuing the provisions of sub-section 2 of Section 204 Cr.P.C. 5. A similar controversy has been resolved by the hon’ble Allahabad High Court in Molvi Habibur RAhman Faizi and Others Vs. State of U.P and another reported in 1998 CRI.L.J. P-2345 wherein it is held that: “6. It is true that sub-section (2) of section 204 forbids the issue of summons or warrant against the accused until a list of prosecution witnesses has been filed. The object of this provision appears to be to enable the accused to prepare himself for their cross-examination. It would really mean filing of such a list at the time of lodging the complaint as there will be no suitable opportunity after wards, for if the Magistrate decides to issue process, the service will be delayed for want of list, but it cannot mean that in no case shall process be issued against the accused without the list of witnesses. Sub-section (2) does not disentitle the complainant from giving additional list of witnesses and the court in issuing summons and examining them. This provision cannot be construed to mean that in no circumstances can a person, not included in the list, be examined as a witness at the trial. If the contention of the learned Counsel for the applicants is accepted that would make Section 254(1), Cr.P.C. otiose and useless. Sub-section (2) only imposes a condition for issue of summons against the accused and once he is summoned, the power to issue summons to the witnesses is regulated by Section 254. The complainant cannot be tied inexorably to the list of witnesses under sub-section (2) of Section 465, issuing processes cannot be set aside unless it has resulted in failure of justice. In Madhvan Nambiar v. govindan, 1982 Cri LJ 683 it was held by Kerala High Court that omission to file list of witnesses does not vitiate the proceedings if the process is otherwise served. It was further held in Abdullah Bhai v. Gulam Mohd., 1972 Cri LJ 277 (J. and K.) (FB) and Kanhu v. Durga, 1980 Cri LJ 518 (HP) that omission to file a list of witnesses is an irregularity curable under Section 465, Cr.P.C. 7. In the back-drop of the above legal position, even if it be taken that the complaint-opposite party failed to file the list of witnesses, the summoning order passed against the applicants shall not stand vitiated. The defect has been cured by filing a list of witnesses subsequently.” 6. The present petition is squarely covered by the aforesaid judgment of the hon’ble Allahabad High Court. I have scrutinized the contention of the learned counsel for the petitioner and find no force in the said contention. The points raised by the learned counsel for the petitioner are wholly untenable. The aforesaid defects can be cured at later stage also. Since, the petition is devoid of merit, It is liable to be dismissed and is hereby dismissed. (J.C.S. Rawat, J.) 10.09.2008 V.K.