ORDER :

K. Murali Shankar, J.

1. This Criminal Revision case is directed against the order passed in Crl. M.P. No. 6194 of 2016 in C.C. No. 226 of 2012, dated 20.01.2017 on the file of the Court of Judicial Magistrate, Sivakasi in Virudhunagar District dismissing the discharge petition filed under Section 245(2) Cr.P.C.,

2. The revision petitioner is the 2nd accused in C.C. No. 226 of 2012, on the file of the Court of the Judicial Magistrate, Sivakasi.

3. During the arguments, the learned counsel appearing for the revision petitioner would submit that the case in C.C. No. 226 of 2012 is pending before the learned Judicial Magistrate Court, Sivakasi for long time for clarification and hence, this Court has called for a report from the learned Judicial Magistrate, regarding the stage of the case. The learned Judicial Magistrate has submitted a report dated 24.02.2021.

4. It is evident from the records that originally private complaint was lodged by the respondent herein before the Court of the Chief Judicial Magistrate, Virudhunagar District at Srivilliputur and the case was taken on file in C.C. No. 741 of 2005 against the three accused viz., (1) Saraswathiyammal (2) Kalaikathiravan (3) Sundararajan for the offences under Sections 454, 380 and 109 IPC, that after examination of four witnesses, the case was transferred to the Court of Judicial Magistrate, Sivakasi and the same was taken on file in C.C. No. 226 of 2012.

5. It is further evident that the death of the first accused Saraswathiyammal was ordered to be recorded on 29.06.2016. Thereafter, the revision petitioner herein has filed an application under Section 245(2) Cr.P.C., seeking discharge in Crl. M.P. No. 6194 of 2016 and the learned Magistrate, after conducting enquiry, has passed the impugned order on 20.01.2017 dismissing the discharge application. Aggrieved by the said order, the second accused has come forward with the present revision.

6. Whether the impugned order, dated 20.01.2017 passed in Cr.M.P. No. 6194 of 2016 in C.C. No. 226 of 2012 on the file of the Court of the Judicial Magistrate, Sivakasi, dismissing the discharge petition is liable to be set aside? is the point for consideration.

7. The learned counsel appearing for the revision petitioner would strongly contend that the learned Magistrate has held that only on completion of the evidence under Section 244 Cr.P.C., the question of framing of the charges or discharge would be decided, without knowing the fact that the discharge petition was filed after closure of the evidence on the side of the prosecution and that the learned Magistrate failed to note that all the witnesses cited in the list of witnesses were examined by the prosecution and no other witnesses was available for examination, which would suggest that the Magistrate failed to apply the judicial mind in deciding the issue.

8. A cursory perusal of the records would reveal that the contention of the revision petitioner that all the witnesses cited in the list of witnesses were examined by the prosecution and no other witness was available for examination is not true and is incorrect. The complainant has examined himself as PW. 1 and the first three witnesses cited in the list of witnesses as PW. 2 to PW. 4 respectively and the fourth listed witness was yet to be examined at the time when the above discharge petition came to be filed.

9. As rightly contended by the defacto complainant and by the learned Magistrate, when the complainant's side evidence was in progress, the discharge petition came to be filed. No doubt, the learned Magistrate by observing that only on the completion of the examination of the complainant's side witnesses and the cross examination of those witnesses, the Court has to decide as to whether the charges are to be framed and that since the complainant's side evidence was not yet completed, the Court cannot proceed to decide as to whether the charges are to be framed or not, dismissed the discharge petition.

10. It is pertinen