PANWAR, J. - (1.) THIS criminal revision petition under Sections 397/401 of the Code of Criminal Procedure, 1973 (for short, "the Code" hereinafter) is directed against the order dated 30. 6. 2001 passed by the Additional Sessions Judge No. 2, Udaipur (for short "the Revisional Court" hereinafter) in Criminal Revision Petition No. 19/2001, whereby the revision petition filed by non-petitioners No. 1 to 3 against the order dated 23. 3. 2001 passed by the Additional Chief Judicial Magistrate, Mawli (for short, "the Trial Court" hereinafter) in Criminal Case No. 378/1999 was allowed and the order of the Trial Court taking cognizance for the offences under Sections 420, 120- B, IPC was set aside and the non-petitioners were discharged of these offences. Aggrieved by the order impugned, the petitioner- complainant has filed the instant revision petition.
(2.) I have heard learned Counsel for the parties. Perused the orders of the Trial Court as well as of the revisional Court. It is contended by the learned Counsel for the petitioner that the petitioner-complainant filed a complaint before the Trial Court which was sent to the police for investigation under Section 156 (3) of the Code. The police submitted negative final report. A notice was served to the petitioner by the Trial Court and filed protest petition. The petitioner and his witnesses were examined treating the protest petition as a complaint and thereafter the Trial Court took cognizance of the offence under Sections 420, 120-B, IPC against the non-petitioners and issued the process vide order dated 29. 3. 2001. That order came to be challenged by the non-petitioners before the revisional Court without impleading the petitioner-complainant as a party and without affording him an opportunity of hearing, the revision petition was allowed. Learned Counsel for the petitioner submits that the power of revision with the Sessions Judge have been enumerated in Section 399 of the Code. Sub-section (2) of Section 399 provides that where any proceeding by way of revision is commenced before a Sessions Judge under Sub-section (1), the provisions of Sub- sections (2), (3), (4) and (5) of Section 401 of the Code shall, so far as may be, apply to said proceeding and references in the said sub-sections to the High Court shall be construed as references to the Sessions Judge. Sub-section (2) of Section 401 of the Code provides that 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. Learned Counsel for the petitioner submits that the words "other person" in Sub-section (2) of Section 401 of the Code includes a complainant. Learned Counsel has placed reliance on a decision of this Court in Hazi Mohd. Shafi vs. State of Rajasthan & Anr. , 2002 (1) R. Cr. D. 172 (Raj.) wherein this Court held that no order under Section 401 (2) of the Code shall be made to prejudice the accused or other person unless he has had an opportunity of being heard either personally or through Counsel in his own defence. The word "other person" includes the complainant. Thus, without affording an opportunity of hearing to the complainant, the revisional Court committed apparent error in setting aside the order passed by the learned Trial Court. In Bodu Ram vs. State of Rajasthan, 2002 (1) Cr. L. R. (Raj.) 344, this Court held that the complainant having not been impleaded as a party in revision petition and the revision petition having been disposed of without notice and without affording an opportunity of hearing to him, the revision petition deserves to be accepted on this sole ground without going into the merits of the case. In that case, the complainant was the person who lodged the first information report, upon which the case was registered. Thereafter on submission of the negative final report in the case, the cognizance was taken on his protest petition. The order taking cognizance was challenged before the revisional Court without impleading the complainant as a party and the revisional Court allowed the revision by setting aside the order issuing the process. The order came to be challenged before this Court and this Court set aside the order of the revisional Court solely on the ground that the complainant has not been impleaded as a party and has not been afforded an opportunity of hearing. The facts of the instant case are almost identical to those of the case of Bodu Ram (supra ). Learned Counsel for the non-petitioners has relied on a decision of the Hon'ble Supreme Court in M/s. Indseam Services Ltd. vs. Bimal Kumar Kejriwal, AIR 2001 SC 3512 = (RLW 2001 (3) SC 433 ). In that case, the High Court directed that cognizance should have been taken by the Magistrate issued the process for the said offences. The order of the High Court was not found to be sustainable and set aside by the Hon'ble Supreme Court. The Judgment relied on by learned Counsel for the non-petitioners turns on its own facts. In the instant case, the facts are not identical to that case; on the contrary, there was no such direction by the revision Court to take cognizance. On the contrary, the only controversy involved in the instant case is whether the complainant was a necessary party to be heard in the revision which has been concluded in favour of the complainant by this Court in the two decisions referred here-in-above and, thus, the case of the petitioner is squarely covered by the two decisions of this Court referred here-in-above.
(3.) CONSEQUENTLY, the revision petition is allowed. The order impugned dated 30. 6. 2001 passed by Additional Sessions Judge No. 2 Udaipur in Criminal revision Petition No. 19/2001 is hereby set aside and the matter is remanded to the revisional Court to pass a fresh order after affording an opportunity of hearing to both the parties. Learned Counsel for the parties agree that the parties shall appear before the Revisional Court on 6. 3. 2006 without any further notice. Let the parties, including the petitioner, appear before the revisional Court on 6. 3. 2006. .;