JUDGMENT 1. - This revision petition is preferred against the order dated 25-9-1980 of the judicial Magistrate No. 3, Jodhpur, whereby charge under section 500 IPC has been framed against petitioners. It may be stated that petitioner No. 1 Umraokhan has died as admitted by the learned counsel for the petitioners. 2. Briefly stated the facts are these. Qari Shakoor filed a complaint against the petitioners in The Court of Judicial Magistrate No. 3. Jodhpur. It is alleged that on 9-2-1980 and 10-2-1980 a conference of Mullas and Maulvis was held under the chairmanship of Utnraokhan. Non-petitioner was a teacher in Muslim Yatimkhana. Jodhpur. In the said conference the petitioners gave certain lectures and made defamatory allegations against the complainant. Particularly it was said by the petitioners that the complainant was not a Sunni musalman and, therefore, a Kafir. In support of the complaint, complainant Qari Shakoor examined himself on 13-3-80 and thereafter one witness Jahurkhan on 5-4-1980 The learned Magistrate thereafter directed the issue of process against the petitioners. 3. It is argued by the learned counsel for the petitioner that the learned Magistrate was in error in directing the issue of the process against the petitioners because the list of the prosecution witnesses has not been filed by the complainant under section 204(2) Cr.P.C The other objection raised on behalf of the petitioners is that in any case the statements recorded by the Magistrate before the issue of process did not disclose that any offence had been committed by the petitioners. 4. I have heard the learned counsel for the petitioners and the learned Public Prosecutor and perused the record of the case carefully. Admittedly the list of prosecution witnesses had not been filed before the issue of process against the petitioners. Section 204 (1) of the Cr.P.C (new) is analogous to sub-section 1(A) of section 204 of the Cr.P.C. (old). There is divergence of views on the question whether section 204(1) (A)-204 (2) Cr. P.C. is mandatory. 5. In the following authorities it was held that section 204(1) (A) is mandatory: Ramnarain v. Bishambernath and another (AIR 1961 Punjab, 171). Chaturbhuj v. Naharkhan (AIR 1958, M P. page 28). Patel Dhanji Mavji and ors. v. Gadhvi Govind Jiva and anr (Cr. L.J. 1974, page 241). 6. However, a contrary view has been expressed in the case of Abdullah Bhat v. Ghulam Mohd. Wani (1972 Cr. Chaturbhuj v. Naharkhan (AIR 1958, M P. page 28). Patel Dhanji Mavji and ors. v. Gadhvi Govind Jiva and anr (Cr. L.J. 1974, page 241). 6. However, a contrary view has been expressed in the case of Abdullah Bhat v. Ghulam Mohd. Wani (1972 Cr. L J., 277): "It is the essence and not the form which should weigh with courts in assessing the nature of the violation and its effect The real test should be whether the violation is so vital that it strikes at the foundation of the concept of a fair trial contemplated by the Code of Criminal Procedure or in any case whether it is so respondent to the well-settled principles of natural justice that it would amount to negation of such principles or is of a less vital character involving a technical and not a substantial departure from such concept or principles as aforesaid. In the first case the court may at once strike down the proceedings as illegal but not so in the second case when it should pause and see if any prejudice was in fact occasioned to the accused." I may also refer to Willie (William) Slaney v. State of Madhya Pradesh (AIR 1956 S.C. page 116) wherein it was thus laid down:- "Except where there is something so vital as to cut at the root of jurisdiction or so abhorrent to what one might term natural justice, the matter resolves itself to a question of prejudice. Some violations of the Code will be so obvious that they will speak for themselves as, for example, a refusal to give the accused a hearing, a refusal to allow him to defend himself, a refusal to explain the nature of the charge to him and so forth. These go to the foundations of natural justice and would be struck down at illegal forthwith. It hardly matters whether this is because prejudice is then patent or because it is so abhorrent to well-established notions of natural justice that a trial of that kind is only a mockery of a trial and not of the kind envisaged by the laws of our land, because either way they would be struck down at once. It hardly matters whether this is because prejudice is then patent or because it is so abhorrent to well-established notions of natural justice that a trial of that kind is only a mockery of a trial and not of the kind envisaged by the laws of our land, because either way they would be struck down at once. Other violations will rot be so obvious and it may be possible to show that hiving regard to all that occurred no prejudice was occasioned or that there was no reasonable probability of prejudice. It is still another class of case, the matter may be so near the border line that very slight evidence of a reasonable possibility of prejudice would swing the balance in favour of the accused. The distinction that was once sought to be drawn between an express prohibition and an equally express provision positively stated strikes us as unreal The real question is not whether a matter is expressed positively or is stated in negative terms but whether disregard of a particular provision amounts to substantial denial of a trial as contemplated by the Code and understood by the comprehensive expression "natural justice". Thus to me, the better view appears to be one taken in the case of Abdullah Bhat v. Gulam Mohd. Wani. However, no firm opinion need be expressed because in my opinion there was not sufficient material before the trial court to direct the issue of process against the petitioners. From the perusal of the complaint and the statement of P.W. 1, it does not appear that he was an eye witness of the incident or that lie attended any meeting of the conference. His statement is, therefore, not n.levant to prove the actual defamatory word alleged to have been spoken by the petitioners in the conference. It is further noteworthy that Qari Shakoor did not disclose the name of P.W. 2 Jahurkhan either in the complaint or in his statement recorded on 13-3-1980-Somehow on 5-4-1980 Jahurkhan was produced before the court and his statement was recorded. This itself shows doubt on the statement of Jahurkhan. The witness stated that the conference was held on 9-2-1980 and 10-2-1980. in this conference the petitioners said that Qari Shakoor did not belong to Devbandi sect and was a Kafir This statement is extremely vague. This itself shows doubt on the statement of Jahurkhan. The witness stated that the conference was held on 9-2-1980 and 10-2-1980. in this conference the petitioners said that Qari Shakoor did not belong to Devbandi sect and was a Kafir This statement is extremely vague. The witness has not clarified or stated whether these utterances were made on 9 2-80 or 10-2-80. Further this witness did not state what were the actual words spoken by earn petitioner. In these circumstances it can safely be said that the statement of Jahurkhan was extremely vague and he was introduced in evidence at an after thought of Qari Shakoor. In my opinion this statement hardly provided a ground for proceeding against the petitioners. The order of the Magistrate directing the issue of process against the petitioner therefore, cannot be supported. I am, of the opinion that no useful purpose would be served by the continuation of the proceedings against the petitioner. Therefore, under the inherent powers of this Court, the criminal proceedings in criminal case No. 249/80 pending in the court of Judicial Magistrate No. 3, Jodhpur against the petitioners are hereby quashed. 7. The revision petition is disposed of accordingly.Revision accepted. *******