1. Heard learned counsel for the parties.

2. The petitioner has prayed for quashing order dated 10.9.2004, passed in Criminal Revision No. 113 of 2003, by Additional Sessions Judge-cum-Fast Track Court No.3, Patna by which he confirmed order dated 28.7.2003, passed by Addl. Chief Judicial Magistrate, Khagaria in GR no. 339/2000, whereunder he allowed the prayer of opp. party no.2 contained in his petition dated 9.6.2003 giving him permission to make pairvi and to continue the proceeding in place of informant of the case, who died on 31.5.2003, and also allowed prayer of opp. party no.2 under Section 311 Cr.P.C. to adduce the evidence of additional witness whose names do not find mention in the column of charge sheet.

3. One Navin Kumar who is now deceased filed a written report dated 12.4.2000 giving rise to Alauli Police Station case no. 37 of 2000, under Sections 341, 342, 323, 504, 379 instituted against the petitioner and opp. party 2nd set i.e. Opposite party numbers 3 to 8. Police after investigation submitted charge sheet u/s 323 I.P.C. only and cognizance was also taken u/s 323 I.P.C, which is a non- cognizable offence.

4. The petitioner submits that Navin Kumar had examined himself as a witness. However, he later on died. Two years after death, his uncle Rajeshwar Yadav filed two petitions before the learned Magistrate one for impleading him as an informant to continue the case and second for summoning additional witnesses u/s 311 Cr.P.C The learned Magistrate allowed both the petitions vide orders dated 28.7.2002. The accused persons namely the petitioner and opp. party 2nd set, being aggrieved preferred revision before the Sessions Court being Revision case no. 113 of 2003. The aforesaid revision application was dismissed vide order dated 10.9.2003.

5. Counsel for the petitioner submits that the learned Magistrate erred in law, in allowing the uncle of the deceased informant, namely, Navin Kumar to be substituted in his place in pursuing the case. The submits that issuance of summons to the witnesses on the application of opp. party no.2 is also erroneous as the witnesses named therein, were neither named in the FIR nor in the charge sheet. Furthermore his statement u/s 161 Cr.P.C. has not been recorded. Besides this, the aforesaid application u/s 311 of the Cr.P.C. was made two years after the death of the informant.

6. He submits that opp. party no.2 could not have been substituted in place of informant to continue the case in view of explanation of Section 2(d) of the Cr.P.C. which reads as follows:

Explanation.A report made by a police officer in a case which discloses after investigation, the commission of a non-cognizable offence shall be deemed to be a complaint; and the police officer by whom such report is made shall be deemed to be the complainant.

7. It would also be relevant to quote Section 2(d) of the Cr.P.C. which is as follows:

2(d). "Complaint" means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code that some person, whether known or unknown, has committed an offence, but does not include a police report.

8. He thus submits that opp. party no.2 could not have been substituted in place of informant when he died. Secondly, it was the Investigating Officer, through the learned Addl. P.P. who could have filed a petition for summoning of addl. witness.

9. Learned counsel for the State and opp. party submits that the instant application u/s 482 of the Cr.P.C. is in garb of second revision and the same is not maintainable in view of judgment rendered in case of Debashish Bose V/s. State of Bihar, reported in 2001(4) PLJR 212:2001 (2) PCCR 497 (PHC).

10. As the issue of maintainability has been raised, I will take up this issue first. Learned counsel for the petitioner submits that dismissal of revision application is not a bar u/s 397(3) Cr.P.C. for application u/s 482 of the Cr.P.C. According to him, bar of second revision u/s 397(3) Cr.P.C