[2025:RJ-JP:46451] HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. Criminal Miscellaneous (Petition) No.1877/2016 1. M/s Gold Developers Pvt. Ltd. 571-A, Narayan Manjil, Barah Khamba Road, New Delhi and 6, Jain Bhawan, 12, Bhagat Singh Marg, New Delhi-110001 (Now known as Experion Developers Pvt. Ltd.). Having present registered address at F-9, First Floor, Manish Plaza1, Plot No.7 MLU, Sector 10, Dwarka, New Delhi and present corporate officer at First India Place, First Floor, Block-B, Sushant Lok I, M.G. Road, Gurgaon (Haryana) through Ajay Kumar, Senior Executive, Legal. 2. Hemant Tikko S/o Shri Chaman Lal Tikoo, Director M/s Gold Developers Pvt. Ltd. 571-A, Narayan Manjil, Barah Khamba Road, New Delhi-110001 (Now known as Experion Developers Pvt. Ltd.). First India Place, First Floor, Block-B, Sushant Lok I, M.G. Road, Gurgaon (Haryana). 3. Arvind Tikoo S/o Shri Chaman Lal Tikoo, Director M/s Gold Developers Pvt. Ltd. 571-A, Narayan Manjil, Barah Khamba Road, New Delhi-110001 (Now known as Experion Developers Pvt. Ltd.). First India Place, First Floor, Block-B, Sushant Lok I, M.G. Road, Gurgaon (Haryana). ----Petitioners Versus 1. The State of Rajasthan through its Public Prosecutor. ----Respondent 2. Debock Builders and Developers Pvt. Ltd., 150, Lohiya Colony, Vaishali Nagar, Jaipur through its Director Ummed Singh S/o Shri Brij Mohan. ----Respondent/Complainant For Petitioner(s) : Ms. Savita Nathawat on behalf of Mr. V.R. Bajwa, Sr. Advocate For Respondent(s) : Mr. Vivek Sharma, P.P. Mr. Jaswant Singh Rathore with Mr. Namo Narayan Meena on behalf of Mr. Harendra Singh Sinsinwar HON'BLE MR. JUSTICE ANAND SHARMA Order 18/11/2025 1. This criminal miscellaneous petition has been filed by the petitioners challenging order dated 18.08.2012 passed by the Additional District & Sessions Judge, Fast Track No.7, Jaipur Metropolitan, Jaipur. [2025:RJ-JP:46451] (2 of 6) [CRLMP-1877/2016] 2. It is stated that the respondent-complainant instituted one criminal complaint against the petitioners before the Court of Magistrate for alleged offence under Sections 406, 420 & 120B of IPC. In the complaint, the petitioners were impleaded as accused. However, the complaint was dismissed by the Metropolitan Magistrate No.11, Jaipur Metropolitan, Jaipur vide order dated 19.06.2012 with the finding that the complaint does not disclose the essential elements for making out any prima facie case for the offence under Sections 406, 420 & 120B of IPC. Against order dated 19.06.2012, the respondent-complainant filed revision petition, however, the petitioners were not impleaded as party in the revision petition, whereas they were parties to the original complaint, which was dismissed by the learned Magistrate vide order dated 19.06.2012. Ignoring the significant fact that the petitioners-accused have not been impleaded as a party in the revision petition, learned Revisional Court passed order dated 18.08.2012, whereby order of Magistrate dated 19.06.2012 has been quashed and directions have been given to learned Magistrate for passing fresh order. 3. Learned counsel appearing for the petitioners submits that the order impugned dated 18.08.2012 has been passed by the Revisional Court in contravention of Section 401(2) Cr.P.C., which mandates that no order shall be passed in revision petition, if such order prejudices the rights of the accused or any other person, unless an opportunity of hearing is afforded to such accused or person. 4. Learned counsel for the petitioners has placed reliance upon the judgment passed by the Hon'ble Supreme Court in the [2025:RJ-JP:46451] (3 of 6) [CRLMP-1877/2016] case of Manharibhai Muljibhai Kakadia & Anr. Vs. Shaileshbhai Mohanbhai Patel & Ors. reported in 2012 (10) SCC 517 and order dated 04.04.2022 passed by Co-ordinate Bench of this Court in the case of Laxmi Narayan Sharma Vs. State of Rajasthan & Anr. (S.B. Criminal Revision Petition No.171/2022). 5. Learned Public Prosecutor as well as learned counsel for the respondent-complainant opposed the present petition and submitted that the order passed by the Revisional Court is innocuous in the nature, as it merely contains directions to the trial Court for passing a fresh order and since the petitioners are already party in the complaint, therefore, naturally fresh order would be passed by the Magistrate after hearing the accused- petitioners. 6. Heard and considered. 7. It is a settled proposition of law that no one can be condemned unheard, nor can any order affecting his rights be passed without affording opportunity of hearing to him. Moreso, in the cases, where criminal revision petition is filed, the provisions of Section 401(2) Cr.P.C., are attracted, which makes it abundantly clear that no order prejudicing accused shall be passed by the Revisional Court without affording opportunity of hearing to him. 8. Admittedly, in the present case, the accused-petitioners were not even impleaded as party to the revision petition and this significant fact has been overlooked by the Revisional Court. Such an omission amounts to grave jurisdictional error on the part of the Revisional Court. Passing any order in absence of the accused- [2025:RJ-JP:46451] (4 of 6) [CRLMP-1877/2016] petitioners has caused them serious prejudice and miscarriage of justice. 9. Hon'ble Supreme Court in the case of Manharibhai Muljibhai Kakadia (supra), has held as under: "46. The legal position is fairly well-settled that in the proceedings under Section 202 of the Code the accused/suspect is not entitled to be heard on the question whether the process should be issued against him or not. As a matter of law, up to the stage of issuance of process, the accused cannot claim any right of hearing. Section 202 contemplates postponement of issue of process where the Magistrate is of an opinion that further inquiry into the complaint either by himself is required and he proceeds with the further inquiry or directs an investigation to be made by a police officer or by such other person as he thinks fit for the purpose of deciding whether or not there is sufficient ground for proceeding. If the Magistrate finds that there is no sufficient ground for proceeding with the complaint and dismisses the complaint under Section 203 of the Code, the question is whether a person accused of crime in the complaint can claim right of hearing in a revision application preferred by the complainant against the order of the dismissal of the complaint. Parliament being alive to the legal position that the accused/suspects are not entitled to be heard at any stage of the proceedings until issuance of process under Section 204, yet in Section 401(2) of the Code provided that no order in exercise of the power of the revision shall be made by the Sessions Judge or the High Court, as the case may be, to the prejudice of the accused or the other person unless he had an opportunity of being heard either personally or by pleader in his own defence. 47. Three expressions: “prejudice”, “other person” and “in his own defence” in Section 401(2) are significant for understanding their true scope, ambit and width: 47.1.Black's Law Dictionary (8th Edn.) explains “prejudice” to mean damage or detriment to one's legal rights or claims. Concise Oxford English Dictionary [10th Edn., Revised] defines “prejudice” as under: “Prejudice.— n. (1) preconceived opinion that is not based on reason or actual experience. ≫ unjust behaviour formed on such a basis. (2) chiefly Law harm or injury that results or may result from some action or judgment. ≫ v. (1) give rise to prejudice in (someone); make biased. (2) cause harm to (a state of affairs).” [2025:RJ-JP:46451] (5 of 6) [CRLMP-1877/2016] 47.2.Webster Comprehensive Dictionary (International Edn.) explains “prejudice” to mean (i) a judgment or opinion, favourable or unfavourable, formed beforehand or without due examination … detriment arising from a hasty and unfair judgment; injury; harm. 47.3.P. Ramanatha Aiyar; the Law Lexicon (The Encyclopaedic Law Dictionary) explains “prejudice” to mean injurious effect, injury to or impairment of a right, claim, statement, etc. 47.4. “Prejudice” is generally defined as meaning “to the harm, to the injury, to the disadvantage of someone”. It also means injury or loss. 47.5. The expression “other person” in the context of Section 401(2) means a person other than the accused. It includes suspects or the persons alleged in the complaint to have been involved in an offence although they may not be termed as accused at a stage before issuance of process. 47.6. The expression “in his own defence” comprehends, inter alia, for the purposes of Section 401(2), in defence of the order which is under challenge in revision before the Sessions Judge or the High Court. 48. In a case where the complaint has been dismissed by the Magistrate under Section 203 of the Code either at the stage of Section 200 itself or on completion of inquiry by the Magistrate under Section 202 or on receipt of the report from the police or from any person to whom the direction was issued by the Magistrate to investigate into the allegations in the complaint, the effect of such dismissal is termination of complaint proceedings. On a plain reading of sub-section (2) of Section 401, it cannot be said that the person against whom the allegations of having committed the offence have been made in the complaint and the complaint has been dismissed by the Magistrate under Section 203, has no right to be heard because no process has been issued. The dismissal of complaint by the Magistrate under Section 203—although it is at preliminary stage—nevertheless results in termination of proceedings in a complaint against the persons who are alleged to have committed the crime. Once a challenge is laid to such order at the instance of the complainant in a revision petition before the High Court or the Sessions Judge, by virtue of Section 401(2) of the Code, the suspects get the right of hearing before the Revisional Court although such order was passed without their participation. The right given to “accused” or “the other person” under Section 401(2) of being heard before the Revisional Court to defend an order which operates in his favour should not be confused with the proceedings before a Magistrate under Sections 200, 202, 203 and 204. In the revision petition before the High Court or the Sessions Judge at the instance of the complainant challenging the order of [2025:RJ-JP:46451] (6 of 6) [CRLMP-1877/2016] dismissal of complaint, one of the things that could happen is reversal of the order of the Magistrate and revival of the complaint. It is in this view of the matter that the accused or other person cannot be deprived of hearing on the face of the express provision contained in Section 401(2) of the Code. The stage is not important whether it is pre-process stage or post process stage." 10. In the case of Laxmi Narayan Sharma (supra), Co- ordinate Bench of this Court has also examined the provisions of Section 401(2) Cr.P.C., as well as the judgment delivered by the Hon'ble Supreme Court and has come to the conclusion that provisions of Section 401(2) Cr.P.C. are mandatory in nature and violation thereof would make the order passed by the Revisional Court as illegal and without jurisdiction. 11. In the light of foregoing discussion, this Court deems it just and proper to exercise its inherent jurisdiction and to quash and set aside order dated 18.08.2012 passed by the Additional Session Judge, Fast Track No.7, Jaipur Metropolitan, Jaipur in Criminal Revision No.53/2012. However, it would be open for the respondent-complainant to file a fresh application for revival of the revision petition after impleading the accused-petitioners as party to the revision petition. 12. Accordingly, the present Criminal Miscellaneous Petition stands allowed. (ANAND SHARMA),J DAKSH/55