Virendra Saran, J. - (1.) By means of this revision Sri Ajai K. Pandey has prayed for the setting aside of the order dated 6-11-1994 of Sri Udai Raj, VI Additional Chief Judicial Magistrate, Lucknow in Criminal Case No. 451 of 1994 : Ajay K. Pandey v. Sri Mahesh Giri and Mrs. Saroj Bala, under Sections 499/500 of the Penal Code dismissing the complaint under Section 203 of the Code of Criminal Procedure (for short, the Code).
(2.) The applicant is an Advocate and has argued the case in person at tremendous length. I have also gone through the grounds of revision and have carefully perused all the relevant material on the record of the revision.
(3.) Smt. Saroj Bala (accused) is posted as a VII Additional Sessions Judge, Lucknow. Sri Mahesh Giri (accused) is an Advocate and was working as State Counsel in the Court of Smt. Saroj Bala. They have not been made party to this revision, but on the strength of the case of D.K. Agarwal v. J.P. Sharma, 1987 AWC 974 , the applicant maintains that the revision be disposed of as such. However, in my opinion, even though the accused may not have the right to be heard by the Magistrate till they are summoned, the principle cannot be extended further and once the complaint has been dismissed under Section 203 of the Code, the judicial order passed by the Magistrate cannot be set-aside in revision without hearing the accused. The case of D.K. Agarwal (supra) fails to notice the mandate of Section 401(2) of the Code which states : "S. 401 (2). No order in this section shall be made to the prejudice of the accused or other person unless he has had an opportunity of being heard either personally or by pleader in his defence." The salutary provisions of Section 401(2) are in line with the principles of natural justice. However, it is not necessary to articulate further as I am inclined to dismiss this revision on the premises adverted to below.;