The judgment establishes the principle that the revisional court must exercise its power judiciously and provide an opportunity for the accused to be heard before passing any prejudicial order. It also emphasizes the discretion of the court to summon the proposed accused and the obligation to consider the conduct of the accused in evading service.

JUDGMENT

Vivek Singh Thakur, J. - Present petition has been preferred by the petitioners, under Section 482 of Cr.P.C. for quashing of order dated 15.3.2019 passed by learned Additional Sessions Judge-1, Solan, District Solan, H.P., in Criminal Revision No. 17-S-10/2018, titled as Kapil Shankar Vs. Som Nath & others, whereby learned Additional Sessions Judge-1, Solan, has issued non-bailable warrants against the petitioners in order to ensure their service, to provide them opportunity of being heard, in Criminal Revision preferred by respondent.

2. It is contended on behalf of the petitioners that learned Additional Sessions Judge-I, Solan, has issued notice and non-bailable warrants in a routine manner without going through facts of the case. Even, prima face, no notice and criminal action is warranted against the petitioners for securing their presence in a revision petition filed against dismissal of complaint by the trial Magistrate before issuance of notice and taking cognizance against them and further that order of issuing notice to petitioners passed by learned Additional Sessions Judge, is undated which establishes casual approach adopted by learned Additional Sessions Judge. It is also contended on behalf of petitioners that power of ensuring presence of a party, by issuing non-bailable warrants, should be exercised sparingly and with application of judicial mind, after giving due regard to the nature of offence, position of the accused persons and circumstances of the case, as issuance of warrant involves interference with personal liberty of a person. According to him, for deciding the revision petition, pending before learned Additional Sessions Judge Solan, presence of petitioners, respondents therein, is not warranted as revision is against the order whereby the complaint filed by the respondent-complainant has been dismissed by the trial Court at the stage of pre-cognizance.

3. On behalf of petitioners, learned counsel representing them, to substantiate their stand, has placed reliance upon a judgment of the High Court of Delhi, in Criminal Revision Petition No. 16 of 2008, decided on 12.2.2009, titled as Tata Motors Limited Vs. State, by referring following paras:-

"20. The legal position that emerges from the above decisions of the Supreme Court as this Court is as under:-

(1) There is a distinction to be drawn between the criminal complaint cases which are at the pre-cognizance stage and those at the post-cognizance stage. There I a further distinction to be drawn between the cases at the post-cognizance but pre-summoning stage and those at the postsummoning stage.

(2) It is only at the pot-summoning stage that the respondents in a criminal complaint would answer the description of an 'accused'. Till then they are like any other member of the public. Therefore, at the pre-summoning stage the question of their right to be heard in a revision petition by the complainant in their capacity as "accused" in terms of Section 401(2) Cr.P.C. does not arise.

(3) At the post-cognizance but pre-summoning stage, a person against whom the complaint is filed might have a right to be heard under the rubric of 'other person' under Section 401(2) Cr.P.C. If the learned MM has not taken the cognizance of the offence then no right whatsoever accrues to such "other person" to be heard in a revision petition.

(4) Further, it is not that in every revision petition filed by the complainant under Section 401(2) Cr.P.C., a right of hearing has to given to such "other person" or the accused against whom the criminal complaint has been filed. The right accrues only if the order to be passed in the revision petition is prejudicial to such person or the accused. An order giving a specific direction to the learned MM to either proceed with the case either at the post-cognizance or post-summoning stage or a direction to register an FIR with a direction to the learned MM to proceed thereafter might be orders prejudicial to the respondents i