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. 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. 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 2008, dated 26.09.2008, by referring to the earlier decisions of the Hon'ble Supreme Court, has reiterated the legal position that the accused has no locus standi at the stage of investigation and he cannot insist for hearing before process is issued against him and the relevant passages is extracted hereunder : “It is no doubt true, as held by this Court in Smt. Nagawwa v. Veeranna Shivalingappa Konjalgi & Ors., (1976) 3 SCC 736 and reiterated in several other cases that the accused has no locus standi at the stage of investigation and he cannot insist for hearing before process is issued against him. It was also held in Chandru Deo Singh v. Prokash Chandra Bose & Anr., (1964) 1 SCR 639 and in Shashi Jena & Ors. v. Khadal Swain & Anr., AIR (2004) 4 SCC 236 that at the most, an accused may remain present with a view to be informed as to what is going on and nothing more. It is equally correct that if a person has no locus standi or right of hearing, such right does not accrue in his favour by an indirect process.” 9. Just because the revisional Court in compliance of the mandate of Section 401(2) Cr.P.C, has issued notices to the accused and gave an opportunity of being heard, it cannot be said that the Magistrate has to adopt the same procedure. 10. As already pointed out, as per the legal dictum above referred, the Magistrate has no power or jurisdiction to issue notice to the accused and to hear them at pre-cognizance stage and as such, correspondingly, the accused has no right of attendance and he cannot claim as of right. Hence, the contention of the learned counsel for the petitioners that non sending of the notices to the petitioners and non affording of opportunity to participate in the enquiry in Cr.M.P.No.532 of 2018 is fatal and vitiates the order passed by the learned Magistrate, is absolutely devoid of merits and is liable to be rejected. 11. Hence, the contention of the learned counsel for the petitioners that non sending of the notices to the petitioners and non affording of opportunity to participate in the enquiry in Cr.M.P.No.532 of 2018 is fatal and vitiates the order passed by the learned Magistrate, is absolutely devoid of merits and is liable to be rejected. 11. But, on perusal of the impugned order, this Court is constrained to say that the learned Judicial Magistrate has exceeded her jurisdiction. If the learned Magistrate is of the view that there are materials available on record for taking cognizance against the petitioners/proposed accused, she can very well pass an order, directly taking cognizance of the case against the petitioners. But here, the learned Magistrate, after taking a position that the deletion of the petitioners is not proper, has directed the Investigating Officer to examine additional witnesses and to file an additional charge sheet. 12. At this juncture, it is necessary to refer the judgment of the Hon'ble Supreme Court in Abinandhan and others Vs. M/s.Dinesh Misra reported in AIR 1968 SC 117 and the relevant passages are extracted hereunder : “No doubt open to the Magistrate, as we have already pointed out, to accept or disagree with the opinion of the police and, if he disagrees, he is entitled to adopt any one of the courses indicated by us. But he cannot direct the police to submit a charge-sheet, because, the submission of the report depends upon the opinion formed by the police, and not on the opinion of the Magistrate. The Magistrate cannot compel the police to form a particular opinion, on the investigation, and to submit a report, according to such opinion. Thai will be really encroaching on the sphere of the police and compelling the police to form an opinion so as to accord with the decision of the Magistrate and send a report, either under s. 169, or under s. 170, depending upon the nature of the decision. Such a function has been left to the police, under the Code. Thai will be really encroaching on the sphere of the police and compelling the police to form an opinion so as to accord with the decision of the Magistrate and send a report, either under s. 169, or under s. 170, depending upon the nature of the decision. Such a function has been left to the police, under the Code. We have already pointed out that the investigation, under the Code, takes in several aspects, and stages, ending ultimately with the formation of an opinion by the police as to whether, on the material covered and collected, a case is made out to place the accused before the Magistrate for trial, and the submission of either a charge-sheet, or a final report is dependent on the nature of the opinion, so formed. The formation of the said opinion, by the police, as pointed out earlier, is the final step in the investigation, and that final step is to be taken only by the police and by no other authority. The question can also be consider from another point of view. Supposing the police send a report, viz., a charge-sheet, under s. 170 of the Code. As we have already pointed out, the Magistrate is not bound to accept that report, when he considers the matter judicially. But, can he differ from the police. and call upon them to submit a final report, under s.169 ? In our opinion, the Magistrate has no such power. If he has no such power, in law, it also follows that the Magistrate has no power to direct the police to submit a charge-sheet when the police have submitted a final report that no case is made out for sending the accused for trial. The functions of the Magistracy and the police, are entirely different, and though, in the circumstances mentioned earlier the Magistrate may or may not accept the report, and take suitable action, according to law, he cannot certainly infringe upon the jurisdiction of the police, by compelling them to change their opinion, so as to accord with his view. Therefore, to conclude, there is no power, expressly or impliedly conferred, under the Code, on a Magistrate to call upon the police to submit a charge-sheet, when they have sent a report under s. 169 of the Code, that there is no case made out for sending tip an accused for trial.” 13. Therefore, to conclude, there is no power, expressly or impliedly conferred, under the Code, on a Magistrate to call upon the police to submit a charge-sheet, when they have sent a report under s. 169 of the Code, that there is no case made out for sending tip an accused for trial.” 13. It is pertinent to note that after investigation and submission of the final report under Section 173 (2) Cr.P.C, the Magistrate while considering the question whether cognizance under Section 190 Cr.P.C is to be taken or not, can direct further investigation. But at the same time, the Magistrate cannot compel the Investigating Officer to submit a charge sheet in such a way. 14. The Hon'ble Apex Court in Shariff Ahmed & Ors. vs. State (NCT of Delhi) reported in (2009) 14 SCC 184 , has reiterated the position that the Magistrate has no power to direct the Police to incorporate a particular offence and to investigate the case and to file a final report. 15. In the case on hand, as already pointed out, the learned Magistrate has directed the Investigating Officer to file a further final report by adding the petitioners as accused. 16. In Sakiri Vasu vs. State of Uttar Pradesh and Others reported in (2008) 2 SCC 409 , the Hon'ble Supreme Court has declared the powers of a Magistrate under Section 156(3) Cr.P.C; that the Magistrate has jurisdiction to give necessary direction for investigation as well as to monitor the investigation, but at the same time, he cannot exercise a power which is not otherwise available to him under the Code. 17. Recently, the Hon'ble Supreme Court in Nahar Singh Vs. State of Uttar Pradesh reported in (2022) 5 SCC 295 , has held that a Magistrate has power under Section 190 Cr.P.C to issue summons against the persons who have not been mentioned as accused in the charge sheet, but named in the FIR and also reiterated the position that the learned Magistrate takes cognizance of an offence and not the offenders and the relevant passages are extracted hereunder : “The scope of jurisdiction of the Magistrate in taking cognizance of an offence was earlier examined by a three-judge Bench of this court in the case of Raghubans Dubey vs. State of Bihar. This authority was relied upon by the Coordinate Bench in the case of Kishun Singh case. This authority was relied upon by the Coordinate Bench in the case of Kishun Singh case. Dealing with broadly similar provisions of the old Code, of 1898, it was observed by this Court:- “8. ……….In our opinion, once cognizance has been taken by the Magistrate, he takes cognizance of an offence and not the offenders; once he takes cognizance of an offence it is his duty to find out who the offenders really are and once he comes to the conclusion that apart from the persons sent up by the police some other persons are involved, it is his duty to proceed against those persons. The summoning of the additional accused is part of the proceeding initiated by his taking cognizance of an offence. As pointed out by this Court in Pravin Chandra Mody v. State of Andhra Pradesh [ (1965) 1 SCR 269 ] the term “complaint” would include allegations made against persons unknown. If a Magistrate takes cognizance under Section 190(1)(a) on the basis of a complaint of facts he would take cognizance and a proceeding would be instituted even though persons who had committed the offence were not known at that time. The same position prevails, in our view, under Section 190(1)(b).” ..... In the case of Dharam Pal (supra), it has been laid down in clear terms that in the event the Magistrate disagrees with the police report, he may act on the basis of a protest petition that may be filed and commit the case to the Court of Session. This power of the Magistrate is not exercisable only in respect of persons whose names appear in column (2) of the chargesheet, apart from those who are arraigned as accused in the police report. In the subject-proceeding, the Magistrate acted on the basis of an independent application filed by the de facto complainant. If there are materials before the Magistrate showing complicity of persons other than those arraigned as accused or named in column 2 of the police report in commission of an offence, the Magistrate at that stage could summon such persons as well upon taking cognizance of the offence. As we have already discussed, this was the view of this Court in the case of Raghubans Dubey (supra). Though this judgment dealt with the provisions of the 1898 Code, this authority was followed in the case of Kishun Singh (supra). As we have already discussed, this was the view of this Court in the case of Raghubans Dubey (supra). Though this judgment dealt with the provisions of the 1898 Code, this authority was followed in the case of Kishun Singh (supra). For summoning persons upon taking cognizance of an offence, the Magistrate has to examine the materials available before him for coming to the conclusion that apart from those sent up by the police some other persons are involved in the offence. These materials need not remain Page | 24 confined to the police report, charge sheet or the F.I.R. A statement made under Section 164 of the Code could also be considered for such purpose.” 18. Considering the above, this court has no hesitation to hold that the Magistrate by directing the Investigating Officer to examine additional witnesses to file a additional charge sheet by adding the petitioners as accused, has exceeded jurisdiction and as such, the same is liable to be set aside. 19. In the result, this Criminal Revision is allowed and the impugned order, dated 28.06.2022 in Cr.M.P.No.532 of 2018 in C.C.No.767 of 2017, is set aside and the learned Magistrate is directed to conduct fresh enquiry in the petition in Cr.M.P.No.532 of 2018 and pass orders in accordance with the said legal position above referred. Consequently, connected Miscellaneous Petition is closed.