IN THE HIGH COURT OF JUDICATURE AT PATNA CR. REV. No.505 of 2008 VISHWAMITRA DUBEY & ANR Versus STATE OF BIHAR & ANR ----------- 4 9.4.2009 The instant revision application is directed against the order dated 28.3.08 passed by the Addl. Sessions Judge, F.T.C. No.3, Aurangabad in Cr.Rev.No.21/08/ 03/08 whereby he held that there was sufficient material to proceed against the accused persons for the offence under section 342 of I.P.C., 3 (v) of SC & ST Act and section 27 of Arms Act apart from sections 323 and 504/34 of I.P.C. It appears that the learned C.J.M., Aurangabad, vide his order dated 4.3.08 had taken cognizance under sections 323 and 504 of the I.P.C. Mr. Sumant Kumar Singh, learned counsel for the petitioner submits that, in fact, Baban Dubey is inimical to him and sets up people to institute a case and to depose falsely against him. He submits that the instant case too has got filed by Baban Pandey by setting up O.P.No.2. Learned counsel further states that in any view of the matter, impugned order is in violation of section 399 read with section 401 (2) of Cr.P.C. He contends that the aforesaid provision sections mandate that no order can be passed to the prejudice of an accused or any other person unless one has been afforded an opportunity of being heard either personally or by his pleader. Mr. Ashok Kumar Singh, learned counsel for the 2 opposite party opposes the application and controverts the allegation that Baban Dubey has set up the opposite party no.2 to institute this case. It is not in dispute that the aforesaid order has been passed without hearing the petitioners and others. The impugned order dated 28.3.08, is prejudicial to the petitioners, as they now may have to face prosecution for other offences also. Section 401 (2) prohibits a revisional court to pass any order which is prejudicial to an accused without affording an opportunity of hearing. Having considered the facts and circumstances of the case, as well as section 399 and 401 (2) of Cr.P.C., this Court holds that the impugned order dated28.3.08 is not sustainable in law and is accordingly set aside. The matter is remitted back to the court concerned for afresh adjudication after issuing notice to both the parties. It is made clear that this Court has not expressed any opinion on the merit of the case. Anil Kr. Sinha (Samarendra Pratap Singh,J.)