JUDGMENT Hon’ble Surendra Singh, J.—Applicant by filing this application under Section 482, Cr.P.C. has sought to quash the order dated 15.4.2009 passed by Sessions Judge, Banda in Criminal Revision No. 33/2009 and impugned order dated 27.1.2009 passed by C.J.M. Banda under Section 156(3), Cr.P.C. 2. Briefly put, the facts may be summarize as follows : The Opposite Party No. 2 V.B. Bajpai moved an application under Section 156(3), Cr.P.C. dated 14.11.2008 before the C.J.M. Banda for the direction to be issued to the police of P.S. Kotwali Nagar, District Banda to investigate the case against the applicant. The C.J.M. Banda called for the report of the police of P.S. Kotwali Nagar vide order dated 14.11.2008 with regard to the information whether the FIR has already been registered or not in respect of the incident in question. The police of P.S. Kotwali Nagar submitted the report dated 24.11.2008 disclosing the facts that till the date of submission of report no FIR was registered. 3. Suffice it to say that by reason of an order dated 27.1.2009 learned C.J.M. Banda before whom the complaint under Section 156(3), Cr.P.C. was filed, refused to direct the investigation in the matter through police concerned in terms of Section 156(3) of the Code, however, he adopted the second mode in terms of Chapter XV of the Code and registered the complaint application as a complaint case. On this premise the Respondent No. 2 (complainant) was asked to lead pre­summoning evidence. 4. Aggrieved by and dissatisfied therewith, the opposite party No. 2 (complainant) filed a revision application before the Sessions Judge, Banda impleading the State only as a party. By reason of the impugned order the revisional Court after hearing the revisionist (Opposite Party No. 2) and the counsel appearing for the State allowed the revision and quashed the impugned order dated 27.1.2009 under challenge by order dated 15.4.2009 with the direction to the Magistrate concerned to examine the matter afresh in the light of the observation made in the order. Hence the proposed accused/applicant has preferred this application under Section 482, Cr.P.C. before this Court. 5. The sole contention of the learned counsel appearing on behalf of the applicant is that the learned Magistrate has adopted the mode in terms of Chapter XV of the Code and asked the complainant to lead pre­summoning evidence which tentamounts to have taken cognizance of the offence. 5. The sole contention of the learned counsel appearing on behalf of the applicant is that the learned Magistrate has adopted the mode in terms of Chapter XV of the Code and asked the complainant to lead pre­summoning evidence which tentamounts to have taken cognizance of the offence. If it may be so, the revision application could not have been decided without noticing to the accused-applicant. Had an opportunity of hearing been given to the applicant, he could have shown that no revision application was maintainable and/or even otherwise no case has been made out for interference with the impugned order of the learned Magistrate. Learned counsel has relied upon the view expressed by Hon’ble Apex Court in Raghuraj Singh Rousha v. Shivam Sundaram Promoters Private Limited and another, 2009 (1) SCC (Cri) 801. He has further submitted that keeping in view of the Apex Court’s observation, the revisional order cannot sustain and is liable to be quashed. 6. On the other hand Sri B.K. Tripathi, learned counsel appearing on behalf of Respondent No. 2 has contended that the accused-applicant had no right to be heard as the said criminal revision application was filed at pre-cognizance stage. It was further emphasised that the applicant was not prejudiced in any manner as at the pre-summoning stage he was not an accused, therefore, he was not entitled for the opportunity of hearing at that stage. Under the given circumstances, the impugned order does not suffer from any illegality or flagrant miscarriage of justice. 7. Heard the learned counsel for the parties and perused the material placed on the record. 8. By the impugned order dated 27.1.2009 the learned C.J.M. Banda intended to inquire into the case himself and on this premise the Respondent No. 2 (complainant) was asked to lead pre-summoning evidence so as to satisfy himself that the allegations made in the complaint are prima facie correct or not. It cannot be said that he had not applied his mind. In such a circumstance the learned Magistrate will be deemed to have taken cognizance and the accused-applicant cannot be denied of opportunity of hearing before passing any order in revision either before the High Court or the Court of Sessions. 9. Section 399 of the Code deals with the Sessions Judge’s power of revision while Section 401 thereof deals with the High Court’s power of revision. 9. Section 399 of the Code deals with the Sessions Judge’s power of revision while Section 401 thereof deals with the High Court’s power of revision. Sub-section (2) of Section 401 of the Code reads as follows : “401 (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”. 10. It is, therefore, clear on plain reading of the said provisions of Section 401(2) that no order can be passed in revision unless the aggrieved had offered an opportunity of being heard either personally or by his pleader. The Hon’ble Apex Court has also dealt with such situation in case of Raghuraj Singh Rousha v. Shivam Sundaram Promoters Private Limited and another (aforementioned case cited by counsel for the applicant) and has held in para 11 as quoted below : “11. One of the questions which arises for consideration is as to whether the learned Magistrate has taken cognizance of the offence. Indisputably, if he had taken cognizance of the offence and merely issuance of summons upon the accused persons had been postponed, in a criminal revision filed on behalf of the complainant, the accused was entitled to be heard before the High Court." 11. The sum and substance of the dictum of the Apex Court does not permit me to take different view except the view taken by the Apex Court. In these circumstances, the ends of justice would be sub-served if the impugned revisional order dated 15.4.2009 passed by the learned Sessions Judge, Banda is set aside. 12. The present application is hereby allowed. The impugned revisional order dated 15.4.2009 passed by the learned Sessions Judge, Banda in Criminal Revision No. 33/2009 is hereby set aside with the direction that the Sessions Judge, Banda shall implead the applicant as a party in the criminal revision application, hear the matter afresh and then pass an order in accordance with law expeditiously. However, till the disposal of the revision before the Sessions Judge, Banda the effect and operation of the impugned order dated 27.1.2009 passed by C.J.M. Banda in Case No. 385/IX/09 shall remain in abeyance. ————