ORDER :

PRAYER: Criminal Revision Petition has been filed under Section 397 r/w 401 of Cr.P.C., to call for the records pertaining to the order passed by the learned Judicial Magistrate, Vadipatti in Cr.M.P.No.532 of 2018 in C.C.No.767 of 2017, dated 28.06.2022 and set aside the same.

The Criminal Revision Case is directed against the order passed by the learned Judicial Magistrate, Vadipatti in Cr.M.P.No.532 of 2018 in C.C.No.767 of 2017, dated 28.06.2022.

2. The petitioners are the proposed accused. On the basis of the complaint lodged by the second respondent/defacto complainant, FIR came to be registered in Crime No. 20 of 2013, dated 09.06.2013 against five person, including the petitioners herein for the offence under Sections 498(A) and 406 IPC. The first respondent, after completing the investigation, has laid a final report under Section 173 Cr.P.C, dated 25.02.2014, against one person Kannan, who is the husband of the second respondent/defacto complainant for the alleged offences under Sections 498(A) and 406 IPC and thereby deleting the name of the petitioners, who were shown as accused in the FIR. After filing of charge sheet, the same was taken on file in C.C.No.767 of 2017 and is pending on the file of the Court of Judicial Magistrate, Vadipatti.

3. The second respondent, after coming to know about the deletion of the petitioners in the charge sheet, has filed a protest petition in Cr.M.P.No.532 of 2018 and the learned Magistrate, after enquiry, has passed an order, dated 31.05.2018, dismissing the said petition. Aggrieved by the said order of dismissal, the second respondent/defacto complainant has preferred a revision in Cr.R.C.No.51 of 2018 and the learned VI Additional District and Sessions Judge, Madurai, upon hearing the arguments of the learned counsel on either side, has passed an order, dated 09.04.2019, setting aside the order passed in Cr.M.P. No.532 of 2018, dated 31.05.2018, directed the trial Court to take the said petition again on file and to conduct enquiry and pass orders.

4. In pursuance of the directions of the Additional District and Sessions Court, the learned Judicial Magistrate, after restoring the petition in Cr.M.P. No. 532 of 2018 to the file of that Court and after enquiry, has passed the impugned order, dated 28.06.2022, by holding that the deletion of the proposed accused is not proper, allowed the protest petition, directing the Investigating Officer to examine additional witnesses and to file a additional charge sheet within a period of one month. Aggrieved by the said order, the proposed accused have come forward with the present criminal revision.

5. The learned counsel for the petitioners would mainly contend that the learned Judicial Magistrate committed an error in not issuing notice to the petitioners in the above petition; that the decision of the learned Magistrate to conduct the enquiry of the above petition, without issuing notice to the petitioners by observing that there was no direction in the revision order of the Additional District and Sessions Court, is unfair and unsustainable and that the learned Magistrate has unilaterally concluded the above Cr.M.P, without affording opportunity to the petitioners.

6. No doubt, Section 401(2) of Cr.P.C mandates that no order under the said provision shall be made to the prejudice of the accused unless he has had an opportunity of being heard either personally or by pleader in his own defence.

7. In compliance of the above provision, the learned Additional District and Sessions Court, after issuing notice to the proposed accused and after hearing the arguments of the learned counsels on record, has passed the order, dated 09.04.2019. But, it is pertinent to note that such an opportunity of being heard contemplated under Section 401(2) Cr.P.C, has no application to the proceedings before the Magistrate at pre-cognizance stage.

8. The Hon'ble Supreme Court in Prabha Mathur and Another. Vs. Pramod Aggarwal and Others in Crl.A.No.1532 of 200