- (1.) BARKAT Ali Zaidi, J. The facts giving rise to this application under Section 482 Cr. P. C. are that an application under Section 156 (3) Cr. P. C. was rejected by the Magistrate, against which a revision was filed. The Sessions Judge, who heard the revision gave a finding that in vie w of the provisions of Section 401 (2) read with Section 399 (2) Cr. P. C. , it was necessary to hear the 6 persons against whom the F. I. R. was sought to be registered because according to the aforesaid provisions, no order could be passed against these persons without giving them an opportunity of being heard.
(2.) IT is against this order of the learned Sessions Judge that the present application under Section 482 Cr. P. C. has been filed. Section 3 99 (2) Cr. P. C. is as follows: "where any proceeding by way of revision is commenced before a sessions Judge under sub-section (1), the provisions of sub- section (2), (3), (4) and (5) of Section 401 shall, so far as may be, apply to such proceeding and references in the said sub- section to the High Court shall be construed as references to the sessions Judge. Section 401 (2) Cr. P. C. is hereunder: "no order under 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 own defence".
(3.) THE argument of the Counsel for the applicant is that at the stage of 156 (3) Cr. P. C. , it is not necessary under Law for the Magistrate to listen to the accused. THE contention of the Counsel for the applicant seems justified and was upheld in the case of Brijesh v. State of U. P. and Ors. , 1997 JIC 357 (All) : 1997 (34) A. C. C. 687. This was also a case of Section 156 (3) Cr. P. C. and following observations were made in Para-5 of the judgment: "so far as the second contention of the learned Counsel for the applicant that the applicant was not afforded opportunity of hearing before passing the impugned order is concerned, the Magistrate is not required under any provision of law to afford an opportunity of hearing to a proposed or alleged offence before the cognizance of the offence is taken or the case is registered, as such, he has committed no illegality in ignoring the objection raised by the applicant before he passed the order directing the police to register the case against the applicant'. In the case of Father Thomas v. State of U. P. and Anr. , 2002 (1) JIC 415 (All) : 2002 (22) ACC 143, which was also a case under Section 156 (3) Cr. P. C. , following observations were made in Para-25 of the judgment : "where an order is made under Section 156 (3) Cr. P. C, directing the police to register F. I. R. and investigate the same, the Code no where provides that the Magistrate shall hear the accused before issuing such a direction, nor any person can be supposed to be having a right asking the Court of law for issuing a direction that an F. I. R. should not be registered against him.;