IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.9990 of 2001 1. SHASHI KANT MISHRA 2. Karuna Kant Mishra, both sons of late Triloknath Mishra 3. Srikant Mishra 4. Kamla Kant Mishra, both sons of late Maheshwar Mishra 5. Devanshu Mishra, son of late Shivkant Mishra All residents of village Mahuli, P.S. Udwantnagar, O.P. Gajrajganj, District Bhojpur at Arrah … … Petitioners Versus 1. STATE OF BIHAR 2. Sunil Kumar Pandey, son of Baijnath Pandey, resident of Village Mahuli Bujurg, P.S. Udwantnagar, District Bhojpur … … Opp. Parties. For the petitioners: Shri Shivaji Pandey, Sr.Adv. For the State: Shri R.C.Singh,A.P.P. ----------- 9. 16.8.2010 Heard Shri Shivaji Pandey, learned Senior counsel appearing for the petitioners as also Shri R.C.Singh, learned A.P.P. for the State. The complaint petition bearing no. 991(C ) of 1999 was dismissed under Section 203 Cr. P.C. by Shri B. K. Mandal, Judicial Magistrate, Ist Class, Arrah. That order of dismissal dated 28.11.2000 was assailed by the complainant Sunil Kumar Pandey, opposite party no.2 herein, before the learned Sessions Judge, Bhojpur at Arran in Cr. Revision No. 269 of 2000. While disposing of the above noted Cr. Revision petition, the learned Sessions Judge made certain observations in paragraphs 7,8 and 9 which run as under: “7. From the statement of the complainant and the witnesses recorded u/s 202 Cr. P.C. taken together with the injury reports, discussed above, I find that a prima facie case u/ss 323,379,448/34 I.P.C. is made out against the accused persons named in the complaint petition and the learned court below erred in dismissing the complaint. 8. Under the circumstances, I find that the impugned order is fit to be set aside and the Cr. Revision is fit to 2 be allowed. 9. In the result, the impugned order is hereby set aside and the case is remanded back to the learned court below for proceeding in the case in accordance with law. Accordingly, the Cr. Revision is allowed after hearing the parties at the stage of admission itself.” The learned Sessions Judge remanded the matter to the lower court as may appear from the above. The grievance of the petitioners is that at the time of hearing of the Cr. Revision petition no. 269 of 2000 the petitioners were not impleaded as opposite parties to that petition and order dated 6.1.2001 was passed by the learned Sessions Judge, Arrah, behind their back. In the above connection, learned Senior counsel papering for the petitioners has referred to the provisions of Sections 399 and 401 Cr. P.C.and has submitted that in view of sub-section (i) of Section 399 the powers which could be exercised by the High Court under Section 401 of the Cr. P.C. could very well be exercised by the Sessions Judge while exercising powers of revision under Sections 397 and 398 Cr. P.C. read with section 399 Cr. P.C. It was contended that it is specifically indicated by sub-section (2) of Section 399 Cr. P.C. that the provision of sub- sections (2),(3),(4) and (5) of Section 401 shall, so far as may be, apply to such proceedings which were to be initiated under Section 399 Cr. P.C. It was contended that Section 401(2) Cr. P.C. requires that no order under that section shall be made to the prejudice of the accused or other person unless he has had an 3 opportunity of being heard either personally or by pleader in his own defence. In support of the contention, learned counsel appearing for the petitioners placed a Bench decision of this Court before me reported in 2006(2) PLJR 254 Awadhesh Kumar Mehta alias Awadhesh Prasad Mehta Vs. State of Bihar in which some other references have been recorded and after making reference to another decision of Ranchi Bench of this Court in Mostt. Malti Saha and Ors.Vs. State of Bihar and Ors reported in 2001(1) PCCR, 197 in which case the accused persons were given opportunity of hearing as they were necessary parties to be impleaded in criminal revision which was preferred by the complainant in challenging the order on account of dismissal of the complaint under Section 203 Cr. P.C. I do not have any difference of opinion as regards the requirement of law on hearing the person who was named as accused in the petition of complaint which could have been dismissed under Section 203 Cr. P.C. But, what I want to point out is that the persons who were arrayed as such in the petition of complaint, on account of dismissal of the complaint, could not be said to be falling in the category of the accused. As such, the provision of Section 401(2) Cr. P.C., which requires that the order must not be made to the prejudice of the accused, cold not be applied under that situation. However, other part of it speaks of „other persons‟ which may indicate that it could be so wide as to take into its sweep any person or persons who has not been 4 summoned on account of dismissal of the complaint. As such there could be a requirement of issuing notice to such persons, who could be named as accused persons in the complaint petition and that complaint petition which had been dismissed after which the complainant had approached any revisional court with a prayer of seeking a direction to the lower court for holding further inquiry. If one reverts back to Section 398 Cr. P.C., one could get it very clearly that the said provision also recites that a person against whom a complaint petition had been dismissed under Section 203 Cr. P.C. is necessary to be heard because no order directing holding of further inquiry could be passed under Sections 397 Cr. P.C. without hearing such a person. This is evidently clear after considering the whole of the provisions of Section 398 Cr. P.C. Having said the above what I find is that even if the present petitioners who were not the accused on account of dismissal of the complaint has a right of hearing by virtue of Sections 398 and 401(2) Cr. P.C. and the revisional court was obliged to order impleadament of such persons. In the result, order dated 6.1.2001 passed by the learned Sessions Judge in Cr.Revision No. 269 of 2000 is quashed. and the matter is remitted back to the learned Sessions Judge who is directed to restore the revision petition to its original number and file and direct impleadment of the petitioners as opposite parties and after issuing proper noticed to 5 them and hearing them dispose of the petition in accordance with law. It may be noted that whichever court hears the revision petition should not be influenced by the earlier findings recorded by the court of revision and should apply its mind freely . The learned Magistrate shall revert back to the position which was obtained in that complaint petition at the time of filing the revision petition. Kanth/A.F.R. ( Dharnidhar Jha, J.)