Shashi Kamath vs Mr Rahul
2022 Latest Caselaw 2463 Kant

     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 15TH DAY OF FEBRUARY, 2022

                         BEFORE

     THE HON'BLE MR. JUSTICE HEMANT CHANDANGOUDAR

            CRIMINAL PETITION NO. 29 OF 2018

BETWEEN:

SHASHI KAMATH
AGED ABOUT 44 YEARS
SON OF LATE B. VASUDEV KAMATH
RESIDENT OF NO.241, 15TH CROSS,
VIJAYANAGAR RAILWAY LAYOUT,
MYSORE-570 016.                           ...PETITIONER

(BY SRI HARISH GANAPATHY, ADVOCATE)

AND:

1.     MR. RAHUL
       AGED ABOUT 23 YEARS
       SON OF BALASUBRAMANYA

2.     BALASUBRAMANYA
       AGED ABOUT 54 YEARS
       SON OF ANATHA BALASUBRAMANYA

       BOTH ARE THE RESIDENT OF NO.243
       15TH CROSS, VIAJAYANAGAR RAILWAY
       EXTENSION, MYSORE-570 016.
                                       ...RESPONDENTS

(BY SRI CHETAN P ANGADI, ADVOCATE )
                             -:2:-


     THIS CRIMINAL PETITION IS FILED UNDER SECTION
482 OF CR.P.C. PRAYING TO SET-ASIDE THE JUDGMENT
PASSED   BY   THE  J.M.F.C-IV  COURT,  MYSURU   IN
PCR.NO.154/2017, DATED: 04.03.2017 AND ALSO SET-
ASIDE THE ORDER PASSED BY THE IV ADDITIONAL
SESSIONS JUDGE, MYSORE IN CRL.R.P.NO.104/2017,
DATED: 10.11.2017.

    THIS   CRIMINAL  PETITION   COMING              ON    FOR
ADMISSION THE COURT MADE THE FOLLOWING:

                           ORDER

The petitioner had filed a private complaint under

Section 200 of Cr.P.C., against the respondents for the

offence punishable under Sections 192, 340 and 420 of

Indian Penal Code, 1860.

2. The learned Magistrate after recording the sworn

statement of the complainant dismissed the complaint by

stating that the complainant has not produced the list of the

witnesses as required under Section 204(2) of Cr.P.C.,

against which the petitioner filed a Criminal Revision Petition

under Section 397(1) of Cr.P.C., in Crl.R.P.No.104/2017

before the IV Additional Sessions Judge at Mysuru and the

said criminal revision petition was dismissed by the Trial

Court vide its order dated 04.03.2017 against which the

present Criminal Petition is filed.

3. The learned counsel for the petitioner would

submit that non-furnishing of the list of the witnesses as

required under Section 204(2) of Cr.P.C., is a curable defect

and as such, the impugned order passed by the Trial Court

be set-aside and the petitioner may be permitted to produce

the list of the witnesses.

4. On the other hand, learned counsel for the

respondents would justify dismissal of the complaint by the

learned Magistrate as well as the order passed by the

Revision Court and hence, sought for dismissal of the

petition.

5. I have considered the submissions made by the

learned counsel for the parties.

6. Section 204(2) of Cr.PC specifies 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. The coordinate Bench of this Court in the

case of Keshavamurthy -vs- Veeraiah reported in ILR 1987

Kar. 2285 held that Section 204(2) of Cr.PC is mandatory,

commanding compliance. It was mandatory on the part of

the complainant to furnish a list of witnesses or file a memo

stating that he is only witness and no other witnesses to be

examined. Also the Co-ordinate Bench of this Court in the

case of CHAYA vs JITENDRA PARASMAL BHANDARI

(Crl.R.P.2141/2013) has observed that filing of a list of

witnesses is a curable defect. In the present case, the

learned Magistrate has rightly dismissed the complaint for

not complying with Section 204(2) of Cr.PC. However, non-

compliance of Section 204(2) of Cr.PC is not an illegality,

which renders subsequent proceeding null and void, but

curable irregularity. The impugned order passed by the

learned Magistrate requires to be set aside reserving liberty

to the complainant to furnish list of witnesses, if any, or file a

memo to that effect and there are no witnesses to be

examined. Accordingly, I pass the following:

ORDER

i) The Criminal Petition is allowed;

ii) The impugned order dated 04.03.2017 passed by the IV Judicial Magistrate of the First Class at Mysuru in PCR No.154/2017 and the impugned order dated 10.11.2017 passed by the IV Additional Sessions Judge at Mysuru in Crl.R.P.No.104/2017 are hereby quashed and the same is restored to its original file. The petitioner is hereby permitted to file the list of the witnesses, if any, and thereafter the learned Magistrate is required to proceed with the complaint, in accordance with law.

Sd/-

JUDGE

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