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Objection u/s crpc 204(2)

(Querist) 28 November 2023 This query is : Resolved 
While filing a private complaint u/s IPC 406 and 420, list of witnesses was not filed as the offence was not of a physical nature. Accused thereupon preferred Criminal Revision Application in District Court. Counsel of the accused raised the objection u/s CRPC 204(2) that Issue Process was initiated in absence of List of Witnesses.
1. Whether filing of List of Witnesses is mandatory?
2. What are the solutions to this problem? Any land mark Supreme Court Judgement upholding the validity of Isse Process even without List of Witnesses ?
S.JEEVAGAN, Madurai. (Expert) 29 November 2023

Yes. In terms of the section 204 (2) of Cr.P.C., no summons or warrant shall be issued against the accused until a list of prosecution witnesses has been filed.

It means that filing of a list of witnesses is mandatory before issuing summons to the accused. In other words, the Magistrate shall not issue summons to the accused in absence of a list of the witnesses having been filed by the complainant.

Even if your case is purely based on the documentary evidence, the documents cannot be marked in absence of any witness like the complainant being examined in the court.

Therefore, at least the complainant's name could've been mentioned in the list of witness in your case. Once a list of witness is filed and summons issued to the accused, the court can further be requested to summon and examine additional witnesses, if required, by giving notice to the accused at the stage of pre charge evidence.
T. Kalaiselvan, Advocate (Expert) 29 November 2023
1. If in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding, and the case appears to be—

a. a summons-case, he shall issue his summons for the attendance of the accused, or
b.a warrant-case, he may issue a warrant, or, if he thinks fit, a summons, for causing the accused to be brought or to appear at a certain time before such Magistrate or (if he has no jurisdiction himself) some other Magistrate having jurisdiction.

2.No summons or warrant shall be issued against the accused under Sub-Section (1) until a list of the prosecution witnesses has been filed.
When the law is very clear what is your doubt about it?

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