JUDGMENT M.S. Ratnaparkhi J. - The order passed by the Judicial Magistrate First Class, Nagpur, on 26-4-1988 on Exhibits 72 and 73 in Criminal Case No. 241/85, rejecting the applications filed by the petitioner and the other co-accused, has been challenged in these proceedings and the inherent powers of this Court are sought to be invoked for quashing the impugned order. 2. A complaint came to be filed by the respondent No.1 before the Judicial Magistrate First Class, Nagpur. On verification of the complaint, the learned Magistrate was pleased to take cognizance of the case otherwise than on a police report and accordingly a process under Sections 498-A and 506 of the Indian Penal Code was directed to be issued No list of witnesses as contemplated under Section 204(2) of the Criminal Procedure Code was filed. Inspite of that infirmity, the learned Magistrate issued process to the accused, and there is no dis-pute at this stage that all the accused put in their appearance before the Court in pursuance of the summons. As it was a warrant case, the learned Magistrate followed the procedure detailed under B' of Chapter XIX of the Criminal Procedure Code (i.e. a procedure for warrant cases, the cognizance whereof has been taken otherwise than on Police report). I told that the complainant produced herself and she has been examined and cross-examined before charge. This was on 15-3-1988. On 21-4-1988, the complainant examined another witness before the charge. After the closure of the evidence of P.W. 2 before charge, the accused Nos. 1 to 3 filed Exhibit 72, whereas the other accused filed Exhibit 73 contending that filing of list of witnesses is a must under Section 204 of the Criminal Procedure Code and if no list of witnesses is filed, the complainant cannot be permitted to examine any other witness than herself. This was the main contention raised. The Court however on hearing both the counsel rejected both of those applications. The Court held that though sub-clause (2) of Section 204 of the Criminal Procedure Code is mandatory it does not close the doors for the complainant as far as further trial is concerned and the complainant can be allowed to file list of witnesses before those witnesses are examined so that no prejudice is caused to the accused. It is this order which has been challenged in the present proceedings. 3. Mr. It is this order which has been challenged in the present proceedings. 3. Mr. Sundaram, the learned Advocate for the petitioner strenuously urged before me that the Court has not properly appreciated the real spirit underlying Section 204(2) of the Criminal Procedure Code. It was his contention that the provision was mandatory in the sense that the omission to comply virtually closed the doors for the complainant as far as the trial is concerned I was taken extensively through the provisions of Sections 204 and 244 of the Criminal Procedure Code (present) and also to Sections 204(1) A and 252 of the old Criminal Procedure Code. Turning to Section 204 it is the commencing Section and Chapter XVI dealing with commencement of the proceedings before the Magistrate. Sub-section (1) speaks about the taking cognizance of a case and then issuing either summons or warrant to the accused calling them to appear before the Magistrate. Sub-section (2) gives a mandate that no summons or warrant shall be issued against the accused unless a list of prosecution witnesses has been filed. Reading the mandate as it stands, it is clear that the bar is against issuing either a summons or a warrant at that stage i.e. immediately after taking cognizance. It means that even after taking cognizance of the matter the Court can refuse to issue either a summons or a warrant to the accused in case a list of witnesses is not filed by the complainant. What happened in this case is that the list was not at all filed and inspite of that, the Magistrate issued summons to all the accused inspite of the bar created under sub-section (2) It was not the argument of Mr. Sundaram that the issuance of the summons to the accused should be quashed as no list of witnesses was filed. What he urges before me is that when the complainant has chosen not to file a list of witnesses, then he has to take the responsibility and when the enquiry commences under Chapter XIX, then he can examine himself alone and no other witnesses can be examined, because no list has been filed. 4. What Mr. What he urges before me is that when the complainant has chosen not to file a list of witnesses, then he has to take the responsibility and when the enquiry commences under Chapter XIX, then he can examine himself alone and no other witnesses can be examined, because no list has been filed. 4. What Mr. Sundaram urged before me was that as the complainant did not file a list of witnesses contemplated under Section 204(2) and as the bar created there under was not surmounted the complainant should not be allowed to examine any other witness except himself. 3. Reliance was placed by Mr. Sundaram on State of Bombay v. Janardhan.1 This was a case under the Criminal Procedure Code 1898. The relevant provisions governing the warrant trial were Section 232 of the Criminal Procedure Code. The provisions were more or less similar except some changes as far as sub-section (2) of Section 244 is concerned. But the mandatory directions flowing from the present Section 204(2) were already there on the statute. When the matter came before this High Court in A.I.R. 1960 (Born.) 313 (supra), the question which was, put before the Court was, whether the complainant is barred from examining any further witness once he has omitted to file a list of witnesses. This Court on examining the provisions of Sections 252 and 256 came to the conclusion that there is no absolute bar and a further opportunity can be given to the complainant to file a list of witnesses. This Court observed: "After the insertion of Section 204 (1A), Section 256 has to be read along with Section 232 also with Section 204 (1A). Therefore, in cases instituted otherwise on a police report the complainant is restricted to the examination witnesses whose names are given in the list under Section 204 (1A). At the same time, in a proper case the list can be added to with the permission of the Court. The Court should not, however, give permission to add names to the list if it is going to prejudice the case of the accused or if it is not in the interest of Justice.” This Court did not, there fore, hold that omission to give a list of witnesses under Section 204(1A) is a bar which can prevent the complainant from examining other witnesses. This Court also observed that the complainant inspite of the specific provisions of Section 204 (1A) can be allowed to file a list of witnesses even subsequently. 6. Exactly the same position prevails even under the new Criminal Procedure Code. As already pointed out above a bar contained in Section 204(2) of the Criminal Procedure Code prohibits Magistrate from issuing summons or m: warrant to the accused pursuant to the taking of cognizance by the Magistrate. But it does not in itself act as a bar either to the pre-trial evidence or to the post-trial evidence contemplated under Chapter XIX of the Criminal Procedure Code. The only precaution that the Court hot to take is that no surprise could be thrown on the accused because of the omission to tile list of witnesses. There is no bar in allowing the complainant to examine witnesses at the trial or pre-trial stage but the only precaution that the Court has to take is that a notice has to be given to the accused so that there will not be surprise. 7. If the present case is examined on the background, it will be apparent that under Section 244(1) of the Criminal Procedure Code, the complainant examined herself and then she examined another witness on her behalf. It is true that she did not tile a list of witnesses till then. It is also proved that on 21-4-88 itself, the accused filed Exhibit 72. The learned Magistrate gave his finding on this application on 26-4-1988 and on that very date the complainant filed a list of 9 witnesses. What Mr. Sundaram contended before me is that this permission ought not to have been granted to the complainant at a late stage when the trial has already commenced. I am not prepared to accept this argument, because according to me the trial commences only after the framing of the charge and before that it is a pre-trial enquiry. Anyhow, the responsibility is thrown on the Court to see that no prejudice is cause to the accused and it is only from that point of view that the court has given an understanding to the complainant to file a list of witnesses so that no surprise will be thrown on the accused when confronted with these witnesses. I do not think that this reasoning of the Trial Court is bad in any way. I do not think that this reasoning of the Trial Court is bad in any way. Once the Court comes to the conclusion that there is no absolute bar, the matter becomes crystallized. If there is no bar, then what the Court has to see is that, the action should not in any way result in prejudice to the accused. Examination of a number of witnesses does not itself amount to prejudice, though to some extent we may say that the accused have to face all these music. But those are the hazards of the procedure prescribed by law. Prejudice might have been caused, if without giving any notice to the party, the complainant could have brought all the witnesses and examined them one after the other. The Trial Court has taken sufficient precaution in the present case by directing the complainant to give a list of witnesses and to restrict his case only to the examination of these witnesses. 8. In these circumstances I do not think that the order passed by the learned Magistrate is in any way wrong. It does not require any interference at the hands of this Court. The application is dismissed. Rule is discharged. The Trial Court is now directed to proceed with the case expeditiously as it has become pretty old Petition dismissed. I. A.I.R.1960 Bom.513.