The revisional court is required to provide an opportunity of hearing to the accused before passing any order prejudicial to his rights.

1. - The present revision petition has been filed by the accused. He has made a grievance that the revisional Court had not followed mandate of Section 401(2) Cr.P.C.and the impugned order was passed without affording any opportunity of hearing to the accused.

2. Counsel for the petitioner has urged that revisional Court below has set aside the order whereby final report was accepted by the Magistrate without affording opportunity of hearing to the accused and thus prejudice has been caused to the accused. It is further contended that Section 401(2) Cr.P.C. specifically state that no order shall be passed by the revisional Court to the prejudice of the accused or any other person unless he had an opportunity of being heard either personally or by the pleader in his own defence.

3. To appreciate the above said arguments, it will be necessary to recapitulate brief facts. Kumbha Ram respondent no. 2 on 04.04.2003 submitted a complaint against the petitioner and other accused. The said complaint was sent for investigation under Section 156(3) Cr.P.C. and on basis thereof FIR no. 79/2003 was registered at Sujangarh Police Station District Churu for the offences under Sections 420, 406 IPC. After completion of investigation final negative report was submitted. To assail the same, complainant-respondent no. 2 had preferred protest petition before the Court of the Magistrate. The concerned Magistrate after hearing both the parties rejected the protest petition vide order dated 22.06.2005 and accepted the final negative report. The said order was challenged by the complainant by filing the revision petition.

4. The revisional Court below without issuing any notice to the accused petitioner took cognizance of the offence under Sections 420, 406 IPC. and vide order dated 22.04.2009 had issued bailable warrants against the present petitioner. A single Judge of the Court on 13.01.2012 while issuing notice had passed the following detailed order:-

"The present revision petition has been preferred by the petitioner being aggrieved of the order dated 17.6.2008 passed by the learned Additional Sessions Judge, Sujangarh, district Churu in Criminal Revision Petition No. 126/2007 (67/2005), whereby he reversed the order dated 22.4.2005 passed by the Judicial Magistrate No. 1, Sujangarh, district Churu accepting the Final Report No. 57/2003 of the Police Station, Sujangarh and the consequent order dated 22.4.2009 passed by the Judicial Magistrate No. 1, Sujangarh whereby he, acting on the directions issued by the learned Revisional Court, has taken cognizance against the petitioner for the offences under Section 420 and 406 IPC.

Learned counsel for the petitioner submits that the revisional court, before deciding the revision petition filed by the complainant in a case wherein the learned Magistrate has passed the order of acceptance of the Final Report was, in view of the mandate of proviso to Section 398 Cr.P.C., required to hear the petitioner (the proposed accused) before any order adverse to him could have been passed.

I have given my thoughtful consideration to the arguments advanced at the bar.

In the opinion of this Court, whenever a Magistrate passes an order deciding the matter dismissing a complaint, accepting a Final Report or an order purporting to be creating some rights in favour of one of the parties to the litigation, then in a revision petition challenging such an order, the person to whose prejudice the revision petition has been preferred has to be heard in the revision petition.

The provision of Section 398 Cr.P.C. reads as under:-

"Power to order inquiry - On examining any record under Section 397 or otherwise, the High Court or the Sessions Judge may direct the Chief Judicial Magistrate by himself or by any of the Magistrates subordinate to him to make, and the Chief Judicial Magistrate may himself make or direct any subordinate Magistrate to make, further inquiry into any complaint which has been dismissed under Section 203