1 IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL CRIMINAL CRIMINAL APPELLATE JURISDICTION. APPELLATE JURISDICTION. APPELLATE JURISDICTION. CRIMINAL CRIMINAL CRIMINAL WRIT PETITION NO.2122 OF 2007 WRIT PETITION NO.2122 OF 2007 WRIT PETITION NO.2122 OF 2007 M/s.Sheeba Finance Curies Pvt.Ltd. & ors. : Petitioners versus Shri Kailash Vithal Pawar and anr. : Respondents. WITH WITH WITH CRIMINAL CRIMINAL CRIMINAL WRIT PETITION NO.2123 OF 2007 WRIT PETITION NO.2123 OF 2007 WRIT PETITION NO.2123 OF 2007 M/s.Sheeba Finance Curies Pvt.Ltd. & ors. : Petitioners versus Mrs.Shashikala Kailash Pawar and anr. : Respondents. Mr.Abhaykumar Apte for the petitioners Mr.Yogendrasingh Rajput for Respondent No.1. Mr.J.P.Yagnik, APP, for the State. 2 CORAM CORAM CORAM : A.P.DESHPANDE, J. : A.P.DESHPANDE, J. : A.P.DESHPANDE, J. DATED DATED DATED : FEBRUARY 01, 2008. : FEBRUARY 01, 2008. : FEBRUARY 01, 2008. P.C. P.C. P.C. 1. Rule. Rule made returnable forthwith. Taken up for final hearing by consent of the parties. Heard the learned counsel for the parties. 2. The learned counsel for the petitioners takes an exception to the impugned orders passed by the Additional Sessions Judge, Pune in Criminal Revision Nos.531 of 2007 and 530 of 2007 filed under Section 397 of the Criminal Procedure Code calling in question that part of the order passed by the Judicial Magistrate First Class, Khadki, whereby he declined to issue process against the present petitioners for an offence under Sections 403 and 409 of the Indian Penal Code. 3. The respondents had filed complaints against the petitioners under Sections 403, 409 and 418 of the Indian Penal Code. Process came 3 to be issued for an offence under Section 418 r/w section 34 of the Indian Penal Code. However, no process was issued in relation to other sections. Aggrieved by the order passed by the Magistrate refusing to issue process under Sections 403 and 409, Revisions were carried, as stated herein above, before the Sessions Judge. 4. The learned counsel for the petitioners submits that the impugned orders have been passed by the Additional Sessions Judge in breach of principal of natural justice and without affording any opportunity to them of being heard in the matter. It is undisputed that the present petitioners/accused were not impleaded as party respondents in the Revisions. The learned counsel for the petitioners also invited my attention to Section 399 of the Cr.P.C. which provides the powers of the Sessions Judge in dealing with the revision. The Sessions Judge may exercise all or any of the powers which may be exercised by the High Court under sub-section (1) of Section 401. sub-section (2) of Section 399 reads thus :- "Where any proceeding by way of revision 4 is commenced before a Sessions Judge under subsection (1), the provisions of subsection (2), (3), (4) and (5) of section 401 shall, so far as may be, apply to such proceeding and references in the said subsections to the High Court shall be construed as references to the Sessions Judge" Turning to Section 401, sub-section (2), what is laid down is 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." 5. The learned counsel for the respondents tried to contend that to the extent of sections for which no process was issued, the petitioners were not the accused persons and hence it was not obligatory for the respondents/complainants to implead the present petitiones/accused as party respondents in the revisions. 5 6. I am not in agreement with the submissions made by the learned counsel for the respondents for the reasons that sub-section 2 of section 401 of the Cr.P.C. not only postulate an opportunity to an accused when an order prejudical to him is passed but such a right is also conferred on a person who is placed in a position of accused as such. In the present case, process was issued against the present petitioners though only under Section 418 r/w 34 and thus, the present petitioners were in fact the accused before the Court. Even if it is to be technically presumed that for the purpose of other sections the petitioners were not the accused, nonetheless the petitioners need to be granted an opportunity of hearing before an order prejudical to them is passed, having regard to the purpose sought to be achieved by subsection (2) of section 401 of the Cr.P.C.. 6. In the result, the writ petition deserves to be allowed and I proceed to allow the same. The impugned orders passed by the Additional Sessions Judge, Pune in Criminal Revision Nos.531 of 2007 and 530 of 2007, dated 24th August 2007 6 are quashed and set aside. The Revisions shall stand restored to their original file. The respondents shall formally amend the memo of revisions and implead the present petitioners/accused as party respondents/opponents and the Revisional Court shall proceed to decide the revisions in accordance with law after affording an opportunity of being heard to the present petitioners. Rule made absolute in aforesaid terms with no order to as to costs. [A.P.DESHPANDE,J] [A.P.DESHPANDE,J] [A.P.DESHPANDE,J]