ORDER : 1. The petitioner-accused has come to this Court, in this Criminal Misc Petition under Section 482 of Code of Criminal Procedure (for short “the Code”) for assailing the order dated 06.01.2009 passed by Additional Sessions Judge No.3, Jodhpur (for short “the revisional court”) in Criminal Revision No. 89/2008 titled as Om Prakash Vs. State, whereby the revision preferred by the respondent No.2 Om Prakash (complainant) was allowed and order dated 03.04.2008 passed by Judicial Magistrate No.6, Jodhpur (for short “the trial court”) in Criminal Complaint No.32/2007 titled as Om Prakash Vs. Ramakishan was set aside. 2. The revisional court while setting aside the said order, directed the trial court to take cognizance against the petitioner for the offences punishable under Sections 341 and 323 of the IPC and to initiate the trial. This order has been challenged by the petitioner-accused in the instant criminal petition. 3. It is not necessary to set out the facts in detail. Suffice it to say that a criminal complaint came to be filed in the trial court by the complainant by arraigning the petitioner, besides some other persons as accused. The complainant sought prosecution of said persons describing the various facts and alleging inter-alia that accused have committed offences punishable under Sections 458, 427, 363, 147, 148, 379, 365, 323 read with Section 149 of the IPC against the complainant and his family members. 4. The trial court, vide order dated 03.04.2008 dismissed the said complaint. A Revision was filed by the complainant and vide impugned order dated 06.01.2009, the revisional court allowed the revision as stated above. 5. The sole question for consideration is, whether the suspect/proposed accused is entitled for hearing by the revisional court in a revision preferred by the complainant, challenging the order of dismissing the complaint by the trial court Magistrate. 6. Shri Chiranji Lal Mali, learned counsel representing the petitioner has vehemently and fervently argued that the impugned order passed by the revisional court, being contrary to the principles of natural justice and law, is clearly an abuse of process of law, hence it deserves to be set aside. 7. The first contention of Shri Mali is that the said order was passed without notice to the accused; that the accused was entitled to be heard in the criminal revision filed by the complainant challenging the order of trial court. 7. The first contention of Shri Mali is that the said order was passed without notice to the accused; that the accused was entitled to be heard in the criminal revision filed by the complainant challenging the order of trial court. It is argued that accused has a right to be heard in a revision filed by the complainant as no order can be made to the prejudice of accused or the other person unless he has had an opportunity of being heard under Section 398 and 401 (2) read with Section 399 of the Code. It is further argued that criminal proceedings launched by the complainant had come to an end and if the revision preferred by the complainant is accepted that would have the effect of revival of the complaint and setting the criminal process back in motion, which would be definitely prejudicial to the accused and before any such prejudicial order is passed, the accused ought to be heard. 8. The second contention of Shri Mali is that the provision of Section 398 of the Code has completely been ignored by the revisional court. While disposing the revision, the revisional court can neither take cognizance itself nor direct the trial court to take cognizance of any offence against any person thus, he urged that impugned order which has been passed against the petitioner, being abuse of process of law, deserves to be quashed. 9. Reliance was placed by learned counsel representing the petitioner in support of his arguments on the following judgments:- 1. (2020) 1 SCC (Cri) 94, Central Bureau of Investigation Vs. Arvind Khanna 2. 2021 (3) Cr.L.R. (Raj.) 721, Sachin Singhal Vs. Superintendent of Police 3. 2012 (4) Cr.L.R. (Raj.) 1817, Syed Ali Vs. State of Rajasthan & Anr. 4. AIR 2020 SC 3324 , Subhash Sahebrao Deshmukh Vs. Satish Atmaram Talekar & Ors. 5. 2013 Cri.L.J. 144, Manharibhai Muljibhai & Anr. Vs. Shaileshbhai Mohanbhai Patel 10. The learned Public Prosecutor has not disputed the legal position in relation to the arguments raised by learned counsel for the petitioner. 11. I have heard Shri Chiranji Lal Mali, learned counsel representing the petitioner and learned Public Prosecutor and have perused the impugned order and other material placed on record. 12. Vs. Shaileshbhai Mohanbhai Patel 10. The learned Public Prosecutor has not disputed the legal position in relation to the arguments raised by learned counsel for the petitioner. 11. I have heard Shri Chiranji Lal Mali, learned counsel representing the petitioner and learned Public Prosecutor and have perused the impugned order and other material placed on record. 12. Having given anxious consideration to the submissions made it is settled law that in a revision petition preferred by the complainant before Sessions Judge challenging the order of Magistrate dismissing the complaint under Section 203 of the Code, the accused or a person who is suspected to have committed crime is entitled to hearing by the revisional court. In other words, whether complaint has been dismissed by the Magistrate under Section 203 of the Code, upon challenge to the legality of the said order being laid by the complainant in a revision petition before the Sessions Judge, the persons who are arraigned as accused in the complaint have a right to be heard in such revision petition. Even the revision cannot be registered without impleading the proposed accused/suspect as a respondent. This is a plain requirement of Section 398 and 401 (2) read with Section 399 of the Code. 13. However, if the revisional court overturns the order of the Magistrate dismissing the complaint and the complaint is restored to the file by the Magistrate and it is sent back for fresh consideration, then the person, who is alleged as accused in the complaint, would have no right to participate in the resumed proceedings before the Magistrate nor he is entitled to hearing of any sort, whatsoever, until the Magistrate passes an order for issuance of process. 14. The perusal of record of the instant case reveals that the complainant has not impleaded the person sought to be prosecuted i.e. the petitioner thus, the mandate of Section 398 and 401 (2) read with Section 399 of the Code has not been complied with by the complainant. Therefore, if any adverse order is passed by the revisional court, without issuing notice to the accused, it is liable to be set aside. 15. Therefore, if any adverse order is passed by the revisional court, without issuing notice to the accused, it is liable to be set aside. 15. So far as second contention of learned counsel for the petitioner is concerned, the following order dated 06.01.2009 was passed by the revisional court:- ^^vr% izkFkhZ&ifjoknh dh vksj ls izLrqr fuxjkuh Lohdkj dh tkrh gS rFkk v/khuLFk U;k;ky; }kjk ikfjr vkns'k fnukad 03-04-2008 vikLr fd;k tkrk gS o v/khuLFk U;k;ky; dks funsZ'k fn;k tkrk gS fd og vfHk;qDr ds f[kykQ /kkjk 341 rFkk 323 Hkkjrh; naM lafgrk ds rgr izlaKku ysdj mlds fo#) fopkj.k dh dk;Zokgh vkjaHk djsaA^^ 16. If the plain language of section 398 of the Code is literally considered, it would make clear that when complaint was dismissed under Section 203 by the trial Magistrate, the revisional court while examining any record under Section 397 of the Code, could only direct the trial Magistrate to make further inquiry into the matter. The revisional court does not have the jurisdiction or power to direct the trial court to take cognizance against any accused of any particular offence. 17. Making further inquiry into the matter by the trial Magistrate also necessarily includes passing of fresh order after reconsidering the material already available on the record, after taking into account the observations of the revisional court or in the light of the specific aspects or facts as pointed out by the revisional court. 18. Viewed from above angle, the present case has led this court to a conclusion that the revisional court has exceeded its power while exercising its jurisdiction under Section 397 of the Code. In view of this court, the order passed by the revisional court directing the trial magistrate to take cognizance against the petitioner for the offences punishable under Section 341 and 323 of the IPC is absolutely incorrect and uncalled for. 19. Now, this court considers the impact, in case the matter is remanded back to the revisional court for fresh consideration and the nature of the order of the trial magistrate which is available before the revisional court to exercise the jurisdiction under Section 397 of the Code. 19. Now, this court considers the impact, in case the matter is remanded back to the revisional court for fresh consideration and the nature of the order of the trial magistrate which is available before the revisional court to exercise the jurisdiction under Section 397 of the Code. The following order dated 03.04.2008 was passed by the learned trial Magistrate:- ^^ifjoknh e; odhy vuqifLFkrA ifjoknh e; odhy xr is'kh ij Hkh mifLFkr ugha Fks vkSj vkt Hkh vuqifLFkr gSA ckj&ckj vkoktsa yxkbZ xbZ] dksbZ mifLFkr ugha vk;kA i=koyh dk voyksdu fd;k x;kA izdj.k ds rF;ksa o ifjfLFkfr;ksa dks ns[krs gq, o lk{khx.k ds c;kuksa ds vk/kkj ij izFke n`"V~;k fyf[kr /kkjkvksa esa vijk/k cuuk ik;k ugha tkrk gSaA vr% ifjoknh dk ifjokn vne gkftjh o vne iSjoh esa [kkfjt fd;k tkrk gSA ckn rdehy nkf[ky nrj gksA^^ 20. The learned trial Magistrate, while passing the above order has given two contrary findings. On the one hand, the trial Magistrate has given finding on merit to the effect that no offence is found to be made out and on the other hand, the complaint has been dismissed in non-prosecution. The complaint has been disposed of on the basis of two contrary findings. So far as the first finding as to that no case is made out is concerned, no reasoned order has been passed nor has it been mentioned that what nature of material was available on the record to consider. In other words a completely non-speaking order has been passed by the trial Magistrate while dismissing the complaint. 21. It is really shocking and surprising that the trial Magistrate has decided a criminal complaint in such a cursory manner. It is a matter of regret to point out that the learned trial Magistrate has not cared to look at the record as well as the law applicable, while passing contradictory order which is not very complimentary to a Judicial Officer. An order of dismissal of a criminal complaint cannot be passed by the trial Magistrate in such a casual and mechanical manner. Before passing of such order, the Magistrate is required to apply his judicial mind and must arrive at a definite and conclusive decision, disclosing the material available on record and his reasons. An order of dismissal of a criminal complaint cannot be passed by the trial Magistrate in such a casual and mechanical manner. Before passing of such order, the Magistrate is required to apply his judicial mind and must arrive at a definite and conclusive decision, disclosing the material available on record and his reasons. From a bare perusal of the order dated 03.04.2008, it would be apparent that the learned trial Magistrate did not apply his judicial mind to the facts of the case or looked into material available on the record or considered the requirements of law. Apparently, the learned trial Magistrate acted in a very casual, cavalier, callous and irresponsible manner and such a contradictory order is not expected from a judicial officer which would definitely erode faith of the public in the judicial system. 22. So far as dismissal of complaint is concerned, Chapter XV of the Code relates to complaints to the Magistrate. This Chapter consists of Section 200 to 203 and the last Section may be reproduced as follows:- "203. Dismissal of complaint-If, 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, the Magistrate is of opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint, and in every such case he shall briefly record his reasons for so doing." Chapter XVI deals with commencement of proceedings before Magistrates. Section 256 talks of a situation when the complainant is not present in a summon case on the appointed day with respect to a case where "summons have been issued on a complaint". Section 249 deals with a situation when the complainant is absent in a warrant case, on any date fixed for hearing of the case. This section finds a place in Chapter XIX.” 23. Admittedly, no process had been issued in the instant case and as such no proceedings had as yet commenced on the basis of complaint. The complaint having been dismissed before it reached the stage of summoning of the accused, the dismissal is to be deemed to be under Section 203 of the Code, even though no Section was specified by the Magistrate in the impugned order of dismissal. 24. The complaint having been dismissed before it reached the stage of summoning of the accused, the dismissal is to be deemed to be under Section 203 of the Code, even though no Section was specified by the Magistrate in the impugned order of dismissal. 24. Definitely, the trial Magistrate can dismiss a complaint for non-prosecution at post cognizance stage if the complainant fails to lead evidence or otherwise shows want of interest. I am unable to endorse the arguments of the learned Public Prosecutor that the dismissal could be under Section 256 or 249 of the Code and not under Section 203 of the Code. 25. Section 256 and 249 of the Code obviously relate to the stage when trial has commenced and not when inquiry is pending. In the instant case, there is no dispute to the fact that complaint was dismissed at the pre-cognizance stage and at pre-cognizance stage, there is no provision for dismissal of a complaint for non-prosecution or for default under Section 203 of the Code if complaint was filed for offences punishable under IPC and not for the offences under any specific enactment which provides dismissal of complaint in default at pre-cognizance stage. 26. At the stage of pre-cognizance, a complaint can be disposed of only under Section 203 of the Code according to which if, after considering the statements on oath (if any) of the complaint and of the witnesses and the result of the inquiry or investigation (if any) under Section 202 of the Code, the Magistrate is of the opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint and in every such dismissal order he shall briefly record his reasons for doing so. 27. In other words, at the pre-cognizance stage a complaint can be dismissed only on the ground that there is no sufficient ground for proceedings even if the complainant is absent on the date fixed for hearing. The Criminal Procedure Code does not contemplate any power to the trial Magistrate to dismiss a complaint in non-prosecution at pre-cognizance stage, if it is not filed under any special act which may provide so. 28. The Criminal Procedure Code does not contemplate any power to the trial Magistrate to dismiss a complaint in non-prosecution at pre-cognizance stage, if it is not filed under any special act which may provide so. 28. After perusing both the orders of the courts below and upon hearing the submissions made by the learned counsel of both sides, I am of the view that the order dated 03.04.2008 passed by the learned trial Magistrate is also not sustainable. The order dated 03.04.2008 of the trial Magistrate is not a judicial order in the eye of law thus it also, besides order of the revisional court dated 06.01.2009, needs to be set aside to remand the matter to trial Magistrate to adjudicate afresh. 29. For the aforesaid reasons, this criminal miscellaneous petition is allowed. The impugned Order dated 06.01.2009 passed by the revisional court and order dated 03.04.2008 passed by the learned trial Magistrate are hereby quashed and matter is remitted to the trial Magistrate for fresh consideration. The trial Magistrate shall now hear the matter and proceed from the stage at which the complaint was dismissed and to decide the same in accordance with law. 30. The trial court will issue notice of date of appearance to the complainant and after ensuring personal service of notice, will further hear the case and then pass a fresh reasoned and speaking order to his satisfaction. 31. The trial court shall not be influenced by any of the findings and observance made by this Court. 32. Since the complaint was filed almost 16 years ago thus, the trial Magistrate is expected to decide the complaint latest by 31.07.2023. Let the trial Magistrate submit the compliance report in pursuance of above directions on 01.08.2023. 33. The petition is allowed in above terms.