Crl. Revn. No. 1502 of 2006 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : Crl. Revn. No. 1502 of 2006 Date of Decision : July 31, 2009 N. K. Jain and another .... Petitioners Vs. Vikram Batra and another .... Respondents CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. Ashok Aggarwal, Senior Advocate with Mr. A. D. S. Sukhija, Advocate for the petitioners. Mr. J. S. Bedi, Advocate for respondent no. 1. Ms. Ashima Mor, Advocate for Mr. Anupam Gupta, Advocate for respondent no.2 – UT, Chandigarh. * * * L. N. MITTAL, J. (Oral) : This is revision petition assailing order dated 01.06.2006 passed by learned Additional Sessions Judge, Chandigarh, whereby revision petition filed by complainant-respondent no.1 against order dated 08.06.2004 of learned Judicial Magistrate Ist Class, Chandigarh has been allowed and learned Judicial Magistrate Ist Class has been directed to send the complaint to concerned Police Station for investigation and report under Crl. Revn. No. 1502 of 2006 2 Section 156 (3) of the Code of Criminal Procedure (in short – Cr.P.C.). Respondent no.1 filed criminal complaint (Annexure P-6) against the petitioners herein. Vide order dated 15.04.2004 (Annexure P-2), learned Judicial Magistrate Ist Class directed Station House Officer of concerned Police Station to investigate and report for 18.05.2004. However, the complainant moved an application before learned Magistrate that in view of the aforesaid order, FIR should have been registered but has not been registered and therefore, direction was sought for registration of FIR. Vide order dated 08.06.2004 (Annexure P-3), learned Magistrate dismissed the said application holding that he had taken cognizance of the complaint on 15.04.2004 and thereafter sought report from the police. This order was successfully challenged by the complainant before Additional Sessions Judge. I have heard learned counsel for the parties and perused the case file. Learned counsel for the petitioners vehemently contended that mandatory provision of Section 401 (2) Cr.P.C. has not been complied with by learned Additional Sessions Judge and therefore, impugned order dated 01.06.2006 (Annexure P-1) passed by learned Additional Sessions Judge is unsustainable. There is considerable merit in the contention. Section 401 (2) Cr.P.C. provides that no order in revision 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. In the instant case, the impugned order (Annexure P-1) by learned Additional Sessions Judge has been passed to the prejudice to the petitioners, who have been arrayed as accused in the complaint, but according to them, no opportunity of hearing as required by mandatory provision of Section 401(2) Cr.P.C. has been granted to them. In fact, the complainant-respondent no.1 did not even implead the petitioners as party respondents in the revision petition before Crl. Revn. No. 1502 of 2006 3 learned Additional Sessions Judge. In view of this fatal infirmity of not affording opportunity of hearing to the petitioners before passing of impugned order, the impugned order cannot be sustained and has to be set aside. The revision petition is accordingly allowed. Impugned order dated 01.06.2006 (Annexure P-1) passed by learned Additional Sessions Judge is set aside and the case is remanded to learned Additional Sessions Judge for fresh decision of the revision petition, which was filed before him, in accordance with law, after affording opportunity of hearing to both the parties. I have not expressed any opinion on the merits of controversy. Parties are directed to appear before learned Additional Sessions Judge, Chandigarh on 31.08.2009. July 31, 2009 ( L. N. MITTAL ) monika JUDGE