An accused who has not yet appeared before the trial court as an accused and has not been prejudiced by the reversal of an order of dismissal of a complaint is not entitled to be heard before the revisional court.

I.S. Tiwana, J. - As a result of respondents complaint dated 9th August, 1985, and recording of evidence under Section 202 of the Code of Criminal Procedure (for short the Code), the petitioner was summoned by the Chief Judicial Magistrate, Ropar, vide his order dated 7th October, 1985, to face trial under Section 232/505 of the Indian Panel Code. However, before the accused petitioner actually put in appearance before that court, the complaint was dismissed by the said court on 28th February, 1986, for the reason that the complainant had failed to carry out the directions given by the court vide its order dated 7th February. 1986, to furnish complete and better particulars of the accused within a period of four days from that order and to deposit the necessary process fee, etc. Apparently, this order was passed in terms of sub-section (4 of section 204 of the Code. The respondent successfully assailed this order before the Session Judge, Ropar by way of a revision petition. The learned judge without issuing notice to the accused, i e, the petitioner, allowed the revision of the respondent and while setting aside the order of the trial magistrate dated 28th February, 1986, directed him to carry on further proceedings in accordance with law. It is this order of the Sessions Judge dated 2nd April, 1986, which is impugned in this petition.

2. The sole submission of Mrs. Madhu, learned counsel for the petitioners that the Sessions Judge could not pass the impugned order without affording an opportunity of being heard to the petitioner. Firstly, according to her, the dismissal of the complaint vide order dated 28th February, 1986, amounted to discharge of the accused in that case, and, secondly, even though the petition had been filed before the Session Judge under Section 397 of the Code, the provisions of sub-sections (2) to (5) of section 401 had to be read into that section in view of sub-section (2) of section 399 of the Code. The later mentioned sub-section lays down that where any proceeding by way of revision is commenced before a Sessions Judge under-sub-section (1) which deals with the powers of the Sessions Judge in a revision the provisions of sub-section (2) to 5 of section 401 shall, so far as may be apply to such proceeding and references in the said sub-sections to the High Court shall be construed as references to the Sessions Judge. Subsection(2) of section 40 lays down that no order under this section shall be made to the prejudice of the accused or other person unless he has had an opportunity of being heard either personally or by a pleader in his own defence. On the other hand, the stand of Shri Menh Raj, the learned counsel for the respondent/complainant, is that the later mentioned section of the Code is wholly irrelevant as the case in hand falls squarely within the four corners of section 398 of the same. Having given my thoughtful consideration to the respective contentions of the learned counsel for the parties I find no merit in this petition.

3. Both the contentions of the learned counsel for the petitioner, as noticed above, appear to be misconceived. It is the conceded case that though the trial magistrate had decided to summon the petitioner as an accused vide his order dated 7th October, 1985, yet before he could actually be served or hid put in appearance as an accused before the court, the complaint against him was dismissed for the reasons noticed above, i.e., under Section 204(4). It is thus patent that the petitioner could not be discharged in the case before he had put in appearance before the court as an accused. Therefore, I repel her first contention.

4. The question then is whether the petitioner was entitled to be heard by the Sessions Judge while reversing the order of the trial Magistrate dated 28th February, 1986, dismissing the complaint against him.

A bare reading of sub-section (2) of section 401 of the Code on which reliance is placed by the learned counsel for the petitio