( 1 ) THE petitioners before this Court are the accused in the Court of the first Classs Magistrate at Menvi in CC No. 134/3 of 1969. Respondent 1 is the complainant. A complaint was filed by Respondent 1 before the police against the petitioners. After enquiring into the complaint, the police thought that it was a civil dispute and directed the complainant if he thought fit, to file a complaint in the Court. The complainant thereafter filed a complaint before the learnt Magistrate. The learned Magistrate examined the complainant on oath and took cognizance of the case and directed the issue of summons against the accused persons for an offence under Ss. 447 and 370 IPC Aggrieved by this order of issuing summons, the petitioners filed a revision before the learned Sessions Judge of Raichur. The learned Sessions Judge dismissed the revision petition. ( 2 ) THIS revision is directed against the said order of the learned Sessions Judge. Sri Raikote, learned Counsel appearing on behalf of the petitioners has contended that no prime facte case has been made out against the petitioners for issuing process The matter is only one of civil dispute and the accused cannot be proceeded with for an offence of theft. He has relied on AIR. 1950 Ori. 202 and AIR. 1953 MB. 79 in support of his contentions. ( 3 ) SRI Rsikote has also argued that in this case the mandatory provision of sub-clause (1a) of S. 204 Crl. P. C. has been violated. The complainant has not given the list of witnesses in his complaint. Sub-sec. (1a) of s. 204 Crl. P. C. states that no summons or warrant shall be issued against the accused under sub-section (1) until a list of the prosecution witnesses has been filed. It is argued that this is a mandatory provision and the failure to observe this would vitiate the entire proceedings. This amendment to S. 204 Crl. P. C. has been introduced by the legislature to safeguard the interests of the accused. In support of his contention, he has relied on Ram Narain v. Bishambarnath, (1961) 1 Cr. L. J 553 chaturbhuj v. Nahar Khan, AIR. 1958 MB 28. and State of Orissa v. Appa Rao, (1961) 2 Crl. L. J. 518. P. C. has been introduced by the legislature to safeguard the interests of the accused. In support of his contention, he has relied on Ram Narain v. Bishambarnath, (1961) 1 Cr. L. J 553 chaturbhuj v. Nahar Khan, AIR. 1958 MB 28. and State of Orissa v. Appa Rao, (1961) 2 Crl. L. J. 518. ( 4 ) IT is not the function of this Court to decide, sitting in revision, even before any evidence is recorded by the trial Court, whether any prima facie case has been made out or whether the matter is one of civil dispute. S. 204 (1) mnkes it clear that if in the opinion of the Magistrate taking cognizance of an offence there is sufficient ground for proceeding, he shall issue summons for the attendance, of the accused. If the Magistrate is of opinion that there is sufficient ground for proceeding, it is his duty to issue summons. As pointed out by the learned Sessions Judge this is a matter of discretion of the learned Magistrate. If he is of opinion that there is sufficient ground to proceed, he shall issue summons to the accused and it is not the function of this Court at this stage to go into the question whether the Court had sufficient grounds for proceeding to issue summons. If the evidence discloses that it is a civil dispute, the accused will be entitled to an acquittal. I, therefore decline to go into this question whether a prime facie case has been made out or whether the matter is of civil nature. ( 5 ) SRI Raikote has strongly relied on Ram Narain v. Bishamber Nath (1) in support of his contention that the provisions of sub-clause (1a) of s. 204 Crl. P. C. are mandatory in nature and non-observance of the same would vitiate the proceedings taken against the accused. In the said decision, the Court took the view that the provisions of sub-sec. (1b) of S. 204 requiring that a summons or a warrant issued under sub-sec. (1) shall be accompanied by a copy of the said complaint is directory in nature. But his Lordship held that the provisions of sub-clause (1a) of the same section are mandatory in nature. (1b) of S. 204 requiring that a summons or a warrant issued under sub-sec. (1) shall be accompanied by a copy of the said complaint is directory in nature. But his Lordship held that the provisions of sub-clause (1a) of the same section are mandatory in nature. His Lordship stated that the provisions of Clause (1 A) are mandatory in the sense that a process issued before the filing of the list of witnesses would be invalid. This clause is couched in a negative language, and it goes to the power of the Magistrate to issue summonses or warrants as the case may be. His Lordship held that the provisions which enjoin the Courts to satisfy themselves about the prime farie nature of a criminal charge, before issuing a process must be intended, in the absence of a clear suggestion to the contrary to be mandatory. ( 6 ) IN State of Orissa v. M. V. Appa Rao, the Court held that a list of prosecution witnesses has not been supplied along with the summons in the said case and that this was due to laches on the part of the prosecution. The Court did not say that it was a mandatory provision nor did it say that it would invalidate the proceedings. In Chatur Bhuj v. Nahar khan, his Lordship held:"having regard to the wordings of S. 204, Cls. (1a) and (IB), it is clear that the filing of the list of prosecution witnesses is essential unless the complainant is the only witness in the case and that along with the summons or warrant issued under sub-sec. (1), a copy of the complaint ought to be sent to the accused. It is therefore not competent for a Magistrate to issue process without complying with these mandatory provisions. " ( 7 ) IN the said case the Court did not hold that the trial was vitiated but it directed the Magistrate to comply with the said provisions and proceed with the trial. ( 8 ) WITH great respect to the learned Judges, I must say that it is not possible for me to agree with the view that if the list of witnesses had not been supplied along with the summons, that defect vitiates the entire proceedings. ( 8 ) WITH great respect to the learned Judges, I must say that it is not possible for me to agree with the view that if the list of witnesses had not been supplied along with the summons, that defect vitiates the entire proceedings. If the intention of the Legislature was that non-supplying of the list of witnesses would invalidate the taking of cognizance of the case, then the Legislature would have stated specifically that no Court shall take cognizance of a complaint when the list of witnesses has not been furnished in the complaint. It seems to me that giving a copy of the list of witnesses along with the summons to the accused is only to give him an opportunity to know who are the witnesses that are likely to be examined. Even if the list of witnesses has not been given along with the summons, it is open to the Court to furnish the list to the accused later and give him sufficient time to cross-examine his witnesses. If this is done, the accused would not be prejudiced. The object of the amendment introduced by sub-sec. (1a) of S. 204 Crl. P. C. seems to be as pointed out in Bata Behera v. Devendra Nath, AIR. 1960 Orissa 178. by his Lordship Narasimham, j. is to give adequate notice to the accused and to avoid unnecessary adjournments. In paragraph 9 of the Order, his Lordship has observed as follows:" (9) The primary object of sub-sec. (1a) of S. 204 Cr. P. C. appears to be to give the accused adequate notice about the persons who would depose against him so that he may be ready to cross-examine them and unnecessary adjournments may be avoided. If new names are disclosed at a later stage of the trial the reused may be entitled to an adjournment for the purpose of enabling him to adequately cross-examine the persons. So long as an adequate opportunity is thus given to the accused to cross-examine the witnesses and he himself at no stage of trial asks for further adjournments for such purpose, it cannot be said that any prejudice was caused on account of the failure of the complainant to disclose exhaustively the names of all the eye witnesses at the earliest opportunity. " ( 9 ) HIS Lordship also pointed out that it was always open to the complainant, later on, to add to the witnesses originally given and also to give up some of the witnesses in the original list. It is further stated that the omission of the names of any important witnesses in the first list might adversely affect their credibility in the absence of any satisfactory explanation. It was for the Court to take into consideration these factors while assessing the weight to be given to the evidence of those witnesses. ( 10 ) THIS is a case instituted on complaint and being a warrant case, the procedure laid down in Chapter XVI will have to be followed. It may be mentioned, in a case like this the accused gets three chances to cross- examine the prosecution witnesses. First, under S. 252 (1), the accused gets a chance to cross-examine all the witnesses, examined by the complainant. What is important to note is that after such examination of witnesses, under sub-sec. (2) of S. 252, it is the duty of the Magistrate to ascertain from the complainant or otherwise the names of any persons likely to be acquainted with the facts of the case and able to give evidence for the prosecution, and he shall summon and examine such of the witnesses as he thinks necessary. From sub-sec. (2) it is clear that the complainant can examine later, witnesses not cited in the complaint. This clearly shows that undue importance has not been given to disclosing the names of the witnesses by the complainant at the earliest point of time in the complaint. It is open to the complainant under sub-sec. (2) of S. 252 to examine any witness not cited in the complaint, without giving any notice to the accused. Under S. 256, the accused is given the right after the charge is framed against him, to recall all or any of the prosecution witnesses for the purpose of cross-examination. Again thereafter under the same Section 256, the complainant can examine the remaining witnesses for the prosecution. Then under Section 257, it is oper to the accused, after he has entered upon his defence, to apply to the magistrate to recall any of the prosecution witnesses for cross-examining! them for the third time. I may point out that provisions of sub-sec. Then under Section 257, it is oper to the accused, after he has entered upon his defence, to apply to the magistrate to recall any of the prosecution witnesses for cross-examining! them for the third time. I may point out that provisions of sub-sec. (2) of S. 252, S. 256 and S. 257 Crl. P. C. have not been brought to the notice of their Lordships when they decided the cases mentioned above. I have no doubt that if the provisions of these sections had been brought to the notice of their Lordships, they would not have held that non-compliance with the provisions of S. 204 (1a), would invalidate the proceedings taken earlier. The complainant is given the chance twice, of examining witnesses not cited in the complaint without notice to accused under S. 252 (2) and S. 256. This would clearly show that Ltgislature did not attach much importance to the complainant mentioning in the complaint the names of his witnesses. This is possibly because the accused is given, as pointed out earlier, the chance of cross-examining the prosecution witness a number of times. I am therefore of opinion that the mere fact that along with summons a list of prsecution witnesses has not been given, would not invalidate the proceedings. S. 537 says that any order passed by a Court of competent jurisdiction shall not be reversed or altered on appeal or revision on account of any error, omission or irregularity in the complaint, summons, warrant, order or judgment, unless such omission or irregularity has in fact occasioned a failure of justice. Here at best, it is only an omission or irregularity in issuing the summons against the accused by not enclosing with the summons a list of witnesses. Falure to give a list of witnesses along with the summons, in my opinion, is at best an irregularity which is curable by S. 537 Crl. P. C. ( 11 ) AS the list of prosecution witnesses has not been furnished by the court along with the summons to the accused, the learned Magistrate is directed to furnish a list of prosecution witnesses to the petitioner (accused) in the case. After furnishing such a list of prosecution witnesses and also after giving adequate time for the accused to get ready with the case, the learned Magistrate will proceed with the trial. After furnishing such a list of prosecution witnesses and also after giving adequate time for the accused to get ready with the case, the learned Magistrate will proceed with the trial. For the reasons mentioned above, there is no merit in this revision petition and the same is dismissed. --- *** --- .