AJAY K. PANDEY Vs. STATE OF U.P.

JUDGEMENT

(1.) By means of this revision Sri Ajai K. Pandey has prayed for the setting aside of the order dated 6-11-1994 of Sri Udai Raj, VI Additional Chief Judicial Magistrate, Lucknow in Criminal Case No. 451 of 1994 : Ajay K. Pandey Vs. Sri Mahesh Giri and Mrs. Saroj Bala, under Sections 499/500 of the Penal Code dismissing the complaint under Sec. 203 of the Code of Criminal Procedure (for short, the Code).

(2.) The applicant is an Advocate and has argued the case in person at tremendous length. I have also gone through the grounds of revision and have carefully perused all the relevant material on the record of the revision.

(3.) Smt. Saroj Bala (accused) is posted as a VII Additional Sessions Judge, Lucknow. Sri Mahesh Giri (accused) is an Advocate and was working as State Counsel in the Court of Smt. Saroj Bala. They have not been made party to this revision, but on the strength of the case of D.K. Agarwal Vs. J.P. Sharma, 1987 AWC 974 , the applicant maintains that the revision be disposed of as such. However, in my opinion, even though the accused may not have the right to be heard by the Magistrate till they are summoned, the principle cannot be extended further and once the complaint has been dismissed under Sec. 203 of the Code, the judicial order passed by the Magistrate cannot be set-aside in revision without hearing the accused. The case of D.K. Agarwal (supra) fails to notice the mandate of Sec. 401(2) of the Code which states :