The principle of audi alteram partem must be followed, and notice must be issued to the opposite party before passing any order prejudicial to them in revision petitions under the CrPC.

Sanjiv Khanna, J.:—

This matter has been listed before us in view of the order dated 19th March, 2012. In the said order, conflicting decisions of two single Judges of this Court, being Crl. M.C. 2626/2009 Prakash Devi & Ors. vs. State of Delhi & Anr., decided on 5th February, 2010 and Crl. Revision Petition No. 523/2009 Yashpal Kumar vs. Bhola Nath Khanna & Anr., decided on 1st March, 2012, have been noticed.

2. At this stage, we record that by order dated 19th March, 2012, Crl.M.C. 1737/2011 has been disposed of and therefore, we need not refer to the factual matrix. We are only required to adjudicate and decide, in view of the conflicting decisions, the following question of law:-

“Whether and in what cases the Sessions Court or the High Court while deciding a revision petition under Section 397/401 of the Code of Criminal Procedure 1973, is required and mandated by law to issue notice to the opposite side who has not been summoned to stand trial”

3. The said question arises in “private complaints” or when the complainant is required to lead pre-summoning evidence. Orders passed by the Metropolitan Magistrates can be made subject matter of challenge in Revision Petitions before the Sessions Court or the High Court. The Code of Criminal Procedure, 1973 (CrPC for short) does not mandate or postulate hearing of the opposite party before he is summoned to appear. The contention is that when the opposite party has no right of hearing before the Metropolitan Magistrate, they are not required to be issued notice or heard when a revision petition is decided. The revision petition is nothing but a continuation of the original proceedings. The sequitor is that the opposite party who is yet to be summoned cannot and does not have any right to be heard in the revision. Learned counsel for the respondent in this regard, has referred to proviso to Section 398 of the CrPC. and drawn our attention to the decisions of this Court in J.K. International vs. State 96 (2002) DLT 795, Crl. Rev. Pet. 16/2008 titled Tata Motors Ltd. vs. State decided on 12th February, 2009 and Crl. Rev. Pet. 668/2003 titled Rajesh Garg vs. Tata Tea Ltd. & Anr., decided on 18th February, 2011.

4. To appreciate the contentions, we deem it appropriate to reproduce Sections 190, 200, 202, 203, 204, 397, 398, 399 and 401 as under:-

“190. Cognizance of offences by Magistrates.-

(1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub-section (2), may take cognizance of any offence –

(a) upon receiving a complaint of facts which constitute such offence;

(b) upon a police report of such facts;

(c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.

(2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub-section (1) of such offences as are within his competence to inquire into or try.

x x x x

200. Examination of complainant.-

A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate: Provided that, when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses-

(a) if a public servant acting or purporting to act in the discharge of his official duties or a Court has made the complainant; or

(b) if the Magistrate makes over the case for inquiry or trial to another Magistrate under section 192: Provided further that if the Magistrate makes over the case to another Magistrate under section 192 after examining the complainant and the witnesses, the latter Magistrate need not re-examine them.

x x x x

202. Postponement of issue of process.-

(1) Any Magistrate, on receipt of a compl