J.M.SHETH - (1.)This is a revision petition filed by the original accused against the order passed by the learned Judicial Magistrate First Class Gondal in Criminal Case No. 410 of 1972 dated 27th July 1972 regarding issue of summons against them for offences punishable under secs. 323 504 and 506(1) of the Indian-Penal Code
(2.)The grievance made by the petitioners is that the learned Magistrate had no power or jurisdiction to issue such process till the complainant who had taken out such a proceeding against them has filed the list of the prosecution witnesses. That having been not done this order regarding issue of process is invalid and bad in law. The petitioners had filed Criminal Revision Application No. 17 of 1972 in the Court of the Additional Sessions Judge Rajkot District Gondal playing for revising the aforesaid order. That application has been dismissed by the learned Addl. Sessions Judge. The petitioners have therefore moved this Court.
(3.)The learned Additional Sessions Judge has observed in his judgment that the provisions of sec. 204(1A) of the Criminal Procedure Code (hereinafter referred to as the Code) are mandatory. But according to him question of filing the list did not arise. His observations in this behalf are as under:
"Till it is ascertained by the Court as to whether complainant has any other witnesses to be examined it cannot be said that opponent has to examine other witnesses. List of the witnesses is required to be furnished only if complainant wants to examine other witnesses. It is therefore clear that list of the witnesses is required to be furnished only if it is clear that other witnesses are to be examined by the Opponent and that can be ascertained only after the Court inquires from the Complainant. In this case it is not clear that the Court had ever inquired from the complainant as to whether he intended to examine other witnesses. In the examination of complainant under sec. 200 Criminal Procedure Code the complainant has not stated that he intended to examine other witnesses. At this stage therefore it cannot be said that the complainant wanted to examine any other witnesses. Question of filing the list therefore does not arise.
Another ground indicated by him for non-interference is that it is not shown that material prejudice is caused to the petitioners and the order has resulted into miscarriage of justice.
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