S. B. SINHA, J.

( 1 ) LEAVE granted.

( 2 ) WHETHER the High Court in exercise of its jurisdiction under Sections 397 and 401 of the Code of Criminal Procedure (for short "the Code") can pass an order in absence of the accused persons in the facts and circumstances of this case is the question involved in this appeal which arises out of a judgment and order dated 25. 02. 2008 passed by the High court of Delhi at New Delhi in Criminal Revision Petition No. 116 of 2008.

( 3 ) BEFORE adverting to the said question, we may notice the admitted fact of the matter.

( 4 ) RESPONDENT No. 1 is a company registered and incorporated under the companies Act, 1956. It filed a complaint petition in the Court of additional Chief Metropolitan Magistrate, New Delhi at Patiala House courts under Section 200 of the Code in respect of an offence purported to have been committed and punishable under Sections 323, 382, 420, 465, 468, 471, 120-B, 506 and 34 of the Indian Penal Code accompanied by an application under Section 156 (3) of the Code.

( 5 ) IT is not necessary for us to deal with the allegations made in the said complaint petition in details. Suffice it to say that by reason of an order dated 7. 02. 2008, the Metropolitan Magistrate, New Delhi in whose court the aforementioned complaint petition was transferred, refused to direct investigation in the matter by the Station House Officer in terms of Section 156 (3) of the Code, stating:

"in the present case all the facts and circumstances of the case are within the knowledge of the complainant. Both the complainant and the accused company have been dealing with one another by way of contractual agreement and a mou dt. 05/08/05 was entered between them as alleged in the complaint. From the complaint and the documents placed on record, it appears that there is some dispute between the parties in respect of immovable property and the payments pertaining to the sale of the same. The complainant submits that the accused had cheated him. In the facts and circumstances of the case there is no requirement of collection of evidence by the police at this stage as the complainant can lead his evidence. In view of this, present application u/s 156 (3) Crpc is dismissed. The complaint can be conveniently dealt with U/s 200 crpc and subsequent provisions. If there is necessity however of police that shall be taken u/s 202 Cr. P. C. "

On the aforementioned premise, the complainant was asked to lead pre-summoning evidence. It was directed to furnish list of witnesses, if any.

( 6 ) AGGRIEVED by and dissatisfied therewith, respondent No. 1 filed a revision application before the High Court impleading the State only as a party. By reason of the impugned judgment, the High Court, having regard to the purported consent of the learned APP appearing for the State, on the very first day of hearing, passed the following order:

"on hearing learned counsel for the parties, it is agreed that the impugned order dated 7. 2. 2008 be set aside with direction to the learned MM to examine the matter afresh after calling for a report from the police authorities. The police authorities to hold a preliminary inquiry on basis of the complaint made by the petitioner/ complainant and submit a report to the learned Magistrate within three weeks from today. The petitioner to appear before the trial Court on 24. 03. 2008. Petition stand disposed of. "

Appellant is, thus, before us.

( 7 ) MR. H. S. Phoolka, learned senior counsel appearing on behalf of the appellant, would contend that having regard to the fact that the complaint petition was filed in terms of Section 200 of the Code read with Section 156 (3) thereof and as the learned Magistrate directed the respondent No. 1 to produce witnesses so as to enable it to proceed in terms of Chapter XV of the Code, the revision application could not have been disposed of without notice to the appellant.

( 8 ) MR. Jaspal Singh, learned senior counsel appearing on behalf of the respondent No. 1