JUDGMENT 1. - This petition is directed against the order dated June 6. 1988 of the learned Sessions Judge. Jaipur City, Jaipur, in Criminal Revision No. 39/88 reversing the order dated January 19,1988 of Judicial Magistrate No. 12, Jaipur City, Jaipur refusing to take cognizance against the petitioner in Criminal Case F.I.R. No. 230/86. 2. In short, the facts may be narrated. Non-petitioner No. 2, Prem Chand, filed a complaint in the Court Oi Judicial Magistrate No. 12, Jaipur City, Jaipur, against the petitioner Kishan Lal Chandhu and one Narendra Kumar. The complaint was filed on 9-12-1986 and the learned Magistrate forwarded the same to the Station House Officer Police Station, Jawahar Nagar, Jaipur under Section 156(3) of the Cede of Criminal Procedure. The prosecution case, as detailed out in the said complaint, is that the complainant had handed over 152 bags of Sarson to the accused-petitioner Kishan Lal Chadha, the owner of M/s. Bharat Road Lines, E-6, Transport Nagar, Jaipur, to be transported to Calcutta. On 13-5-1986 be was informed by him (petitioner) that the above 152 bags have been transported to Calcutta in truck No. USA 8014. However, the goods did not reach at the destination. The complainant then approached to the petitioner and the co-accused Narendra Kumar Jain and intimated that the goods had not reached at Calcutta. As per the complainant, the co-accused Narendra Kumar had introduced the petitioner Kishan Lal Chadha with the complainant. Accused Kishan Lal Chadha had also made a report at Police Station Jawahar Nagar, that the bags of Sarson sent by him in the Truck did not reach at the destination. In the said report, he gave out the name of the Driver as Virendra instead of Rambabu, and also gave different No. of the Truck. 3. The police registered the crime and started investigation After investigation, the police submitted a negative report under section 169 Cr. P C., which is popularly known as Final Report, so far the petitioner Kishan Lal Chadha and the co-accused Narendra Kumar Jain are concerned. However, it submitted report against t e Driver and Khalasi of the Truck, namely, Virendra and Shivli under Section 299 Cr. P.C., as they were absconding. P C., which is popularly known as Final Report, so far the petitioner Kishan Lal Chadha and the co-accused Narendra Kumar Jain are concerned. However, it submitted report against t e Driver and Khalasi of the Truck, namely, Virendra and Shivli under Section 299 Cr. P.C., as they were absconding. Before accepting the report, the Magistrate gave a notice to the complainant Thereafter, the learned Magistrate, vide order dated 19-1-1988, accepted the Final Report and discharged the bail bonds of the petitioner and co-accused Narendra Kumar. 4. Aggrieved against the said order, the complainant filed a revision petition in the Court of Sessions Judge, Jaipur City, Jaipur. In the revision petition neither the petitioner Kishan Lal Chadha, nor the co-accused Narendra Kumar, were made parties and no notice was given to them. Without hearing the petitioner and the co-accused Ratanlal the revision petition was allowed by the learned Sessions Judge vide impugned order dated June 6, 90 holding that a prima-facie case was made out against them. He, then, directed the Magistrate to take cognizance against them under Section 190 (a) (b) of Cr. P.C. 5. The learned counsel for the petitioner has challenged the order on various grounds, including, that the Sessions Judge allowed the revision without any notice to him and thus, deprived him from an opportunity of being heard before passing the order which is adverse to him. The learned counsel also challenges the order on merits, but J need not go into this aspect of the challenge, as I am convinced that this petition deserves to be allowed on the first count alone. 6. On the first count, the argument of Mr. D.K. Jain, the learned counsel for the complainant is two fold. Firstly, that prior to the stage of taking cognizance by a Court, the accused does not come in picture at all, as such, no notice is necessary to be given to him either by the Magistrate or by the Revisional Court. Secondly, that notice of the revision was given to the Public Prosecutor and it was sufficient compliance. 7. I have given my careful consideration to the above submissions. In order to resolve the above legal controversy about notice to the accused, it is necessary to refer some relevant provisions of the Code of Criminal Procedure. Chapter XV of the Code prescribes the procedure of private complaints. 7. I have given my careful consideration to the above submissions. In order to resolve the above legal controversy about notice to the accused, it is necessary to refer some relevant provisions of the Code of Criminal Procedure. Chapter XV of the Code prescribes the procedure of private complaints. Section 200 provides that a Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any. Then, Section 202 of the Code provides the postponement of issue of process against the accused by the Magistrate and to ho d an inquiry into the case as provided therein for the purpose of deciding whether or not there is sufficient ground tor proceeding. Section 203 provides dismissal of the compliant if the Magistrate is of the opinion that there is no sufficient ground for proceeding after considering the statements and the result of the inquiry or investigation (if any) under Section 02 Cr. P.C. On the other hand, if the opinion of the Magistrate is that there is sufficient ground for proceeding then process is issued against the accused as provided under section 204 Cr. P.C. 8. Thus, in case of private complaint, the entire scheme is that an accused person does not come in the picture at all till process is i.-sued against him. He may be present in person or through a counsel or agent with a view to be informed of the proceedings, but he has no right to take part in it nor has the Magistrate jurisdiction to perm:t him to do so. The Magistrate cannot put any question to the witnesses at the instance of the accused, nor can he examine any witness in his defence, though the Magistrate himself is free to put such question to the complainant or his witness, as he may think proper, but beyond that he cannot go. The right of the accused to be heard comes into existence only when process is issued under Section 204 of the Code of Criminal Procedure. 9. Similarly, when a First Information Report is filed before a Police Officer, the law does not require that the Police Officer should hear the accused before recording the statements of the witnesses or when a Police Report is Submitted under Section 173(2) Cr. P C. 10. 9. Similarly, when a First Information Report is filed before a Police Officer, the law does not require that the Police Officer should hear the accused before recording the statements of the witnesses or when a Police Report is Submitted under Section 173(2) Cr. P C. 10. Police investigation starts on recording of First Information under Section 154 and ends with the submission of Report under Section 173(2) Cr.P.C. after making examination of the witness/witnesses, supposed to be acquainted with the facts and circumstances of the case, recording confession or statements under Section 164 Cr.P.C. and doing search/seizure etc.. At the conclusion of the investigation the police officer may find:- (i) that there is not sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate (Sec. 169;; or (ii) that there is sufficient evidence or reasonable ground as aforesaid (Sec. 170). In either case, the final report of the police is to be submitted to the Magistrate under sub-section (2) of Section 173. Subsection (4) of that Section further provides that in the case of a report by the police that the accused has been released on his bond (which is the situation envisaged by Section 169), the Magistrate shall make "such order for the discharge of such bond or otherwise as he thinks fit". Th; following courses are open to the Magistrate in such a situation as held by the Hon'ble Supreme Court in Abhinandan Jha and others v. Dinesh Mishra ( AIR 1968 SC 117 ) "(i) Agree with the report of the police and file the proceedings; or (ii) not agree with the police report and (a) order further investigation, or (b) hold that the evidence is sufficient to justify the forwarding of the accused to the Magistrate and take cognizance of the offence complained of." 11. The appropriate course has to be decided upon after consideration of the report and the application of the mind of the Magistrate to the contents thereof. Excepting an order under clause (ii) (a) above, which pertains to the Magistrates supervisory authority, the order passed by him in each of other courses follows a conclusion of investigation. All orders passed by a Magistrate acting judicially (including the one passed under Section 1 /3(4) discharging an accused or orders taking cognizance of the offence complained of) are parts of an integral whole. All orders passed by a Magistrate acting judicially (including the one passed under Section 1 /3(4) discharging an accused or orders taking cognizance of the offence complained of) are parts of an integral whole. They cannot be viewed in isolation and given a character different from the entire judicial process of which they are intended to form a part. (See Kamlapathi Trivedi v. State of W. B. ( 1980(2) SCC 91 ). 12. Thus, in a police case also it is clear that upto the stage of issuing process the accused does not come in the picture at all and cannot claim any right of being heard In V. C. Shukla v. State Delhi Administration) (1980 Supp. SCC 249 ), the Hon'ble Supreme Court has observed as under:- "...Similarly, when a first information report is filed before a police officer, the law does not require that the officer must hear the accused before recording it or submitting a charge-sheet to the court. Another instance is to be found where a complaint is filed before a magistrate who chooses to hold an inquiry under Section 202 of the Code of Criminal Procedure before issuing process or summons to the accused. It has been held in several cases that at that stage the accused ha- got no locus to appear and file his objections to the inquiry. The right of the accused to be heard comes into existence only when an order summoning the accused is passed by the magistrate under Section 204 of the Code of Criminal Procedure, in the case of Cozons v. North Devon Hospital, Management Committee , Lord Salmon pithily observed : No one suggests that it is unfair to launch a criminal prosecution without first hearing the accused." But the matter does not end here, as we have to further consider as to whether an accused has a right of being heard by the Revisional Court, in case a revision is filed under Section 397 Cr.P C. against the order, either dismissing the complaint under Section 203 Cr.P.C. or the order passed by the Magistrate under Sub-sec. (4) of Section 173 Cr.P.C. i. e , accepting negative report of the police. It cannot be disputed that the order of the Magistrate in either of the two circumstances is a judicial order, after application mind by a Magistrate on the facts and material on record. (4) of Section 173 Cr.P.C. i. e , accepting negative report of the police. It cannot be disputed that the order of the Magistrate in either of the two circumstances is a judicial order, after application mind by a Magistrate on the facts and material on record. In case of private complaint, a Magistrate has to from the opinion after considering the statements on oath (if any) of the complainant and of the witnesses and the result of the inquiry or investigation (if any) under Section 202 Cr.P.C.. while in case of investigation fey the Police, the opinion has to be formed by the Magistrate on the consideration of police report. If the cognizance is taken against the accused and process is issued against him, then the accused gets a right of being heard by a Magistrate, while in case of dismissal of complaint or acceptance of negative report by the Magistrate, the proceedings ends against the accused in the Court of the concerned Magistrate. 13. The order of dismissal of the complaint, either under Section 203 or 204 (A) Cr. P.C. and the order accepting the negative report, can be challenged in a revision petition under Section 397 Cr. P. C. as such orders are judicial orders determining the rights of the patties (the State and the complainant on the one hand and the accused on the other) after the application of mind by a concerned Magistrate. Sections 398 and 401 Cr P.C. are relevant to be considered for a decision as to whether an accused has a right of being heard if a revision is preferred against such orders. They are reproduced as under;- "Sec. 398. 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 Magistrate 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 or sub-section (4) of section 204, or into the case of any person accused of an offence who has been discharged. Provided that no Court shall make any direction under this section for inquiry into the case of any person who has been discharged unless such person has had an opportunity of showing cause why such direction should not be made. Sec. 401. High Courts powers of revision.-(1) In the case of any proceeding the record of which has been called for by itself or which otherwise come to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of Appeal by sections 386, 389, 3v0 and 391 or on a Court of Session by section 307 and when the Judges composing the Court of revision are equally divided in opinion,the case shall be disposed of in the manner provided by section 392. (2) 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 pleader in his own defence. (3) Nothing in this section shall be deemed to authorise a High Court to convert a finding of acquittal into one of conviction. (4) Where under this Code an appeal lies and no appeal is brought, no proceeding by way of revision shall be entertained at the instance of the party who could have appealed. (5) Where under this Code an appeal lies but an application for revision has been made to the High Court by any person and the High Court is satisfied that such application was made under the erroneous belief that no appeal lies there to and that it is necessary in the interests of justice so to do, the High Court may treat the application for revision as a petition of appeal and deal with the same accordingly." 14. The proviso to Section 391 provides that no Court shall make any direction for inquiry into the case of any person who has been discharged unless such person is given no opportunity of showing cause. This proviso is applicable in case when the complaint has been dismissed under Section 203 or Sub-section (4) of Section 204, or in;o the case of any person accused of an offence who has been discharged. This proviso is applicable in case when the complaint has been dismissed under Section 203 or Sub-section (4) of Section 204, or in;o the case of any person accused of an offence who has been discharged. The word discharge has not been defined in the Code However, the language of the above Section does not indicate that the word discharged should be given a restricted meaning in the sense of absolute discharge where the accused is set at liberty after exoneration from the whole case. A person may be accused of several offences either in the police report or complaint setting out fact and the may be discharged on some offences and proceeded against for trial in respect of other offences. Here the accused is partially discharged though the Magistrate does not record an express order of discharge of the accused in respect of the offences of which he is discharged. Then there may be cases in which complaint or police report is against several persons and the Magistrate while issuing process declines to issue process against some of them, the refusal to issue process amount to their absolute discharge by implication. Therefore, all these cases of discharge, partial or by implication, will also come under the purview of the Section. An order of the Magistrate accepting the final report also amounts discharge of the accused, as the criminal proceedings comes to an end against an accused person. 15. In Harvana Laid Reclamation and Development Corporation Ltd. v. State of Harvana and another (1990 II SVLR (Cr.) 145), a complaint was referred to the police for investigation under Section 156(3) of the Code of Criminal Procedure. On the final report submitted by the Inspector of Police, the learned Magistrate accepted the same and discharged the accused. Against that order an Misc. Petition was filed before the High Court of Punjab & Haryana and the same was dismissed on the ground that the order of the Magistrate discharging the accused was an interlocutory order and a petition under Section 482 Cr P.C. is not maintainable. 16. The Hon'ble Supreme Court treating the order as an order of discharge held that such order does not fall within the definition of the term interlocutory order. Therefore, the order accepting the final report also amounts to an order of discharge and this view has been accepted by the Apex Court of this country. 17. 16. The Hon'ble Supreme Court treating the order as an order of discharge held that such order does not fall within the definition of the term interlocutory order. Therefore, the order accepting the final report also amounts to an order of discharge and this view has been accepted by the Apex Court of this country. 17. The case may be viewed from another angle also As already stated above, the order of Magistrate accepting the negative report, in case the investigation is made by the police,is a judicial order & it also decides the rights between the parties, i.e., be ween the State and the accused. By such order, a right is created in favour of the accused as he stands exonerated from being proceeded in the criminal case. If the said order is set aside.it is prejudicial to his interest as he is compelled to face trial. Sub-section (2) of Section 401 Cr P.C. clearly provides 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 pleader in his own defence". This provision also makes it obligatory for the Revisional Court to hear the accused in both the aforesaid eventualities. Otherwise also, the principle of natural justice demands that no adverse order against the accused or any other person should be passed without giving him an opportunity of hearing. 18. In my view, the language or sub section (2) of Section 01 is mandatory and it is clearly enacted as an exception to Section 403 Cr.P C. A reasonable opportunity for the accused or other person to be heard is an essential condition precedent to the exercise of jurisdiction under Section 401 Cr.P.C. Any order passed in contravention of Sub-Section (2) of Section 401 is null and void. In A.K. Subbaiah and others v. State of Karnaaka and others (1987) 4 SCC 57 ), above provision contained in Section 401 Cr.P.C. were considered, though in a different context. In that case process was issued by the Trial Court against the accused on the basis of a complaint filed by the State Government under Section 500 I.P.C. with sanction under Section 199 (2) Cr.P.C. as one of the persons alleged to be defamed was the Director General of Police. In that case process was issued by the Trial Court against the accused on the basis of a complaint filed by the State Government under Section 500 I.P.C. with sanction under Section 199 (2) Cr.P.C. as one of the persons alleged to be defamed was the Director General of Police. The accused preferred a revision petition before the High Court under Sections 397 and 401 Cr.P.C. against the issue of process. In the revision petition, in addition to the State Government, the accused joined the Director General of Police and the Chief Minister of the State as parties. The High Court admitted the petition and ordered issuance of notices to the respondents but directed deletion of the names of Director General of Police and the Chief Minister of the State from the array of respondents holding that they are not necessary parties to the proceedings. The accused filed an appeal by Special Leave before the Supreme Court questioning the propriety and correctness of this order. 19. An argument was raised before the Supreme Court that sub-section (2) of Section 401 not only talks of accused persons but also of "or other persons unless he has had an opportunity of being heard". The Supreme Court observed as under:- "Apparently this sub-section contemplates a situation where a person may not be an accused person before the court below but one who might have been discharged and therefore if the revisional court after exercising jurisdiction under Section 401 wants to pass an order to the prejudice of such a person, it is necessary that the person should be given an opportunity of hearing but it does not contemplate any contingency of hearing of any person who is neighter party in the proceedings in the court below nor is expected at any stage even after the revision to be joined as party." These observations of the Hon'ble Supreme Court also support the view which I intend to take. 20. In the instant case no notice has been given to the accused petitioner, as well as, co-accused Narendra Kumar by the Revisional Court while setting aside the order of the Magistrate accepting the negative report of the police against them. 21. For the reasons mentioned above, the order of the learned Session Judge is in contravention to the proviso to Section 398 Cr. P.C. as well as Sub-section (2) of Section 401 Cr. 21. For the reasons mentioned above, the order of the learned Session Judge is in contravention to the proviso to Section 398 Cr. P.C. as well as Sub-section (2) of Section 401 Cr. P.C. Hence the order cannot sustain in the eyes of law. 22. When an opportunity of being heard is a condition precedent, then there arises no question of compliance by giving hearing to a different person or to the Public Prosecutor as in the instant case. The second limb of the argument of the learned counsel for the complainant has also no force that the notice to the Public Prosecutor is a sufficient compliance in the case. 23. Consequently, I allow this petition and set aside the order of learned Sessions Judge, Jaipur City, Jaipur, dated 6-6-1988 and remand the case back to his Court to decide the revision afresh after giving an opportunity of hearing to the petitioner and the co-accused Narendra Kumar.Petition allowed. *******