Judgment :- 1. The revision petitioner has been convicted for an offence punishable under Clause.5 of the Fertiliser (Control) Order, 1957 (hereinafter be referred to as the Order) read with S.7 of the Essential Commodities Act (hereinafter called the Act) and sentenced to pay a fine of Rs. 250/- or in default to suffer simple imprisonment for one month by the Sub Divisional Judicial Magistrate, Hosdrug and this conviction and sentence were confirmed on appeal by the Court of Session, Tellicherry. The judgments of the Courts below disclose that it was for the failure of the revision petitioner to maintain proper accounts that he was convicted and sentenced as aforesaid. 2. The counsel appearing for the revision petitioner contended that the mandatory provisions in S.204 (2) of the Code of Criminal Procedure have been flagrantly violated and consequently the entire trial has been vitiated, that there is nothing in Clause.5 of the Fertiliser Order enjoining a dealer in fertiliser to maintain accounts in a proper or regular manner or in a prescribed form and that the courts below failed to note that pw.1, the complainant, himself has admitted that the revision petitioner was maintaining accounts. According to the counsel, any one of these grounds is sufficient to quash the conviction and sentence of the revision petitioner. 3. S.204 (2) of the Code of Criminal Procedure reads: "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 pot the form of the provision or the use of the word "shall" that can be considered to be conclusive in interpreting or deciding whether the provision in a statute is mandatory or not; although in the absence of a contrary indication in the context, the use of the word "shall" (except in its future tense) prima facie suggests an imperative intent. It is the difference in the intention of the legislature that distinguishes between a directory and a mandatory provision in a statute. What matters therefore is the intention of the legislature. This legislative intent can be ascertained, by a due consideration of factors like the whole of the provision, its nature, its object and purpose, its previous history, the consequences which would follow from construing the provision one way or the other and also the ground of policy and reasonableness. What matters therefore is the intention of the legislature. This legislative intent can be ascertained, by a due consideration of factors like the whole of the provision, its nature, its object and purpose, its previous history, the consequences which would follow from construing the provision one way or the other and also the ground of policy and reasonableness. The provision in sub-section (2) of S.204 of the Code of Criminal Procedure appears to be mandatory in nature and is meant to safeguard the interest of the accused persons against the undue harassment at the hands of unscrupulous litigants. The insistence on the filing of a list of the prosecution witnesses before the issue of process to the accused is mainly for this purpose. In other words, the intention is to assure that no person is summoned to stand his trial without the court first satisfying itself there is sufficient ground for the issuance of a summons or warrant, as the case may be, against the accused person and about the witnesses to be produced in support of the prosecution case. It is not necessary that a separate schedule or list of prosecution witnesses should be filed along with the complaint. It is sufficient compliance of the provision in question if the names of the prosecution witnesses are mentioned in the complaint itself though not in the form of a list of prosecution witnesses is filed before an accused person is summoned to appear before the court. In a proper case, the prosecution is entitled to file even an additional list of witnesses. There is nothing in S.204 of the Code of Criminal Procedure which says or indicates that if no list of prosecution witnesses is filed before process is issued to the accused, then none can be filed later. This is also clear when this section is read with the relevant provisions relating to the trial of summons and warrant cases 4. The non-compliance of the provisions in sub-section (2) of S.204 Cr. P.C. does not automatically result in invalidating consequences or vitiate the entire trial, unless it has resulted in prejudice to the accused. It is not the violation of every mandatory provision that will vitiate or invalidate a trial or proceeding. This does not mean that the salutary provision in sub-section (2) of S.204 Cr. P.C. can be violated with impunity. P.C. does not automatically result in invalidating consequences or vitiate the entire trial, unless it has resulted in prejudice to the accused. It is not the violation of every mandatory provision that will vitiate or invalidate a trial or proceeding. This does not mean that the salutary provision in sub-section (2) of S.204 Cr. P.C. can be violated with impunity. In cases where the complainant is the only witness and he has no other witness to be examined, there is nothing wrong or illegal if process is issued to an accused person before a list of prosecution witnesses is filed. To put it differently filing of a list of prosecution witnesses is not essential if the complainant is the solitary witness in support of the prosecution case. In such cases it is desirable that the magistrate ascertains this fact and record the same before process is issued to the accused person. No list of prosecution witnesses has been filed in this case by the complainant (Pw.1), the District Agricultural Officer, Tellicherry, who is also the Inspector of Fertiliser. But he was the solitary witness to be examined in support of the prosecution and no prejudice has been caused to the accused by the failure of the complainant to file a list of witnesses as required under sub-section 2 of S.204 Cr. P. C. Belatedness in filing a list of prosecution witnesses is a circumstance which has to be taken into consideration in assessing the probative value of the evidence given by such witnesses. 5. The charge against the revision petitioner is that on or about 6th day of September 1973, when pw.1 inspected the shop it was found that he was keeping and selling fertilisers without maintaining stock books, fertiliser records and cash receipts and that he thereby committed an offence punishable under Clause.5 (1) of the Fertiliser (Control) Order read with S.7 of the Essential Commodities Act. Clause.5 of the Order reads: "5. Dealers to obtain licence (1) With effect from such date as may be fixed by the State Government by notification in the official Gazette in this behalf, no person shall carry on the business of selling fertilisers at any place except under and in accordance with the terms and conditions of a licence granted to him under this Order. Dealers to obtain licence (1) With effect from such date as may be fixed by the State Government by notification in the official Gazette in this behalf, no person shall carry on the business of selling fertilisers at any place except under and in accordance with the terms and conditions of a licence granted to him under this Order. (2) Notwithstanding anything contained in sub-clause (1), the State Government may, by notification in the official Gazette, exempt from the provisions of that sub-clause retail dealers in such areas and subject to such conditions as may be specified in the notification." There is nothing in this clause which enjoins or compels a dealer that he should maintain accounts, stock books, fertiliser records, cash receipts, etc. in a prescribed form or in a proper and regular manner. pw.1 has admitted that no form has been prescribed for maintaining these records or accounts. The learned Public Prosecutor also was not able to point out any order or notification or rule prescribing any particular form for maintaining records or accounts by a dealer in fertiliser. Clause.5 insists on two things. They are, firstly, that a dealer in fertiliser should carry on business at a place only after obtaining a certificate of registration and secondly he should carry on the business in accordance with the conditions specified in the certificate of registration. Ext. P1 is the certificate of registration granted to the revision petitioner. The revision petitioner has admittedly satisfied the conditions in the first part of the clause and the further question is whether he has been carrying on the business in accordance with the conditions in Ext. P1. As stated earlier, the charge against him is that he was doing the business without maintaining stock book, etc. But pw.1 in his evidence has clearly admitted that the revision petitioner was maintaining a stock register and that the entries therein are correct and up-todate. He also stated that the revision petitioner was maintaining bill books and other accounts although the entries therein are not upto date. The accused has not been charge-sheeted for failure to maintain a true or proper account book. There is a condition in Ex. P1 that the dealer should submit a report to the authorities mentioned therein on the 5th of every month showing the closing balance and stock. The accused has not been charge-sheeted for failure to maintain a true or proper account book. There is a condition in Ex. P1 that the dealer should submit a report to the authorities mentioned therein on the 5th of every month showing the closing balance and stock. But the prosecution has no case that the revision petitioner has violated this condition and has failed to send a report as required therein. There is nothing in this condition from which it can be spelled out that the failure to maintain true or proper and regular accounts is an offence. It was pointed out that the revision petitioner is not an honest man and that even according to his own statement, he has disposed of a few bags of fertilisers without bringing them to the depot. It is true that he has given a statement to this effect but unfortunately that is not an offence punishable under Clause.5 of the Order. In the circumstances, I am constrained to interfere with the conviction and sentence passed against the revision petitioner. In the result this revision petition is allowed and the conviction and sentence passed against the revision petitioner are set aside and he is acquitted. Before parting with the case, I would like to point out that the offence involved in the case being one punishable under S.7 of the Act, imprisonment is a compulsory part of the sentence. Both the courts below have failed to take note of this. Fine, if any, paid will be refunded to the revision petitioner. Allowed.